2) BANKRUPTCY: In re Mason, 04-35988 (9th Cir. Sept. 28, 2006). Educational Credit Management Corporation ("ECMC") ap-pealed a decision of the Bankruptcy Appellate Panel ("BAP"), which affirmed the bankruptcy court's partial discharge of government-insured student loans held by debtor-appellee Mason. The bankruptcy court held that full repayment of the loans would cause Mason an undue hardship within the meaning of 11 USC Sec. 523(a)(8) and discharged Mason's debt to ECMC in excess of $32,400. The USCA reversed, finding that Mason had not met his burden of showing good faith in attempting to pay back the student loans. While he minimized his expenses, he neither maximized his income nor made adequate efforts to obtain full-time employment. He worked part-time as a home siding installer, despite holding a bachelor degree and a law degree. In addition, his efforts to negotiate repayment of his debt was inadequate. Thompson, Tashima (author), and Callahan, Circuit Judges. D. Fisher of St. Paul, Minn. For the appellant; J. Meier of Boise, ID, for the trustee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) FALSE CLAIMS ACT: USA v. University of Phoenix, 04-16247 (9th Cir. Sept. 5, 2006). The relators raised allegations that the University of Phoenix knowingly made false statements, and caused false statements to be made, which resulted in the payment by the U.S. Dept. of Education of hundreds of millions of dollars. Despite the close fit between the operative statute, 31 USC Sec. 3729(a)(2), and the allegations made, the respondent claimed that the relators' legal theory failed. The district court agreed and dis-missed the suit for failure to state a claim upon which relief could be granted. The USCA reversed. Because the relators properly al-leged 1) a false statement or fraudulent course of conduct, 2) made with scienter, 3) that was material, causing 4) the government to pay out money or forfeit moneys due, their cause of action under the False Claims Act survived a motion to dismiss. Hall (author), Silverman, and Graber, Circuit Judges. N. Krop of Burlingame, CA, for the appellants; T. Hatch of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) TAXATION: Johnston v. CIR, 04-73833 (9th Cir. Sept. 1, 2006). At issue here was whether when a taxpayer offers to pay the IRS a sum certain to "fully resolve all adjustments at issue" for certain tax years, and the CIR accepts the offer, can the taxpayer then apply net operating losses ("NOLs") to reduce the agreed payments under the settlement. The USCA said "no." The taxpayer did not reserve the right to use NOLs in the settlement agreement, nor did he raise the issue of using the NOLs before the CIR accepted his settlement offer. The USCA thus affirmed. D.W. Nelson, Rawlinson, and Bea (author), Circuit Judges. L. Howell of Costa Mesa, CA, for the appellant; T. Clark of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) BANKING LAW / CIVIL PROCEDURE: Huynh v. Chase Manhattan Bank, 04-56105 (9th Cir. Sept. 28, 2006). Proposed class representatives of Vietnamese bank depositors sought to recover the dollar value of their bank deposits made in Saigon, South Vietnam, before April 1975. On appeal, they challenged the district court's order dismissing as time-barred their complaint against Citibank, Chase Manhattan Bank, and Chiao Tung Bank. Accepting the appellants' allegations as true, the USCA said it regretted that they would be deprived of the opportunity to recover funds solicited, improperly concealed, and withheld from them during a time of extreme crisis. The actions of Citibank, Chase, and Chiao Tung were questionable at best. Nevertheless, the USCA said it must require litigants to abide by the procedural rules, including the statutes of limitations, established to promote fair and timely resolution of legal disputes. Applying the appropriate choice-of-law rules, the appellants' claims were time-barred and could not be saved by equitable tolling. D.W. Nelson (author) and O'Scannlain, Circuit Judges, and Jones, District Judge. F. Sayre of Santa Ana, CA, for the plaintiffs-appellants; R. Kendall and A. Padilla of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) TELECOMMUNICATIONS LAW: Verizon California, Inc. v. Peevey, (9th Cir. Sept. 7, 2006). These appeals arose out of a dispute between local exchange carriers over the identification of internet-bound traffic, and compensation for delivery of telephone calls to internet service providers and for calls that appear to the customers to be made within a local area code but in fact are not. Verizon and Pac-West entered into an interconnection agreement in 1996, but when they reached an impasse in negotiating a new agreement in 2001 and referred the dispute to the California Public Utilities Commission ("CPUC"), it ruled in Pac-West's favor that 1) during the interim period before a new agreement was in place, the parties' 1996 agreement continued in force such that Verizon had to continue to pay reciprocal compensation for delivery of internet-bound calls at pre-existing rates rather than the lower capped rates set by the Federal Communications Commission ("FCC") that apply to new contractual obligations; 2) Pac-West could exclude calls to paging services before applying an FCC presumption that when terminated calls are more than three times the number of originated calls, the excess calls are bound for internet service providers; and 3) Pac-West is entitled to reciprocal compensation for traffic that appears to originate and terminate within a single exchange by virtue of Pac-West's assignment of a number that appears to be "local," but in fact is not-the so-called "Virtual Local" or "VNXX" traffic. The CPUC ruled that Verizon is entitled to collect call origination charges for its cost of transporting Virtual Local traffic to a distant point of interconnection. The district court found that the CPUC's decision was not arbitrary or capricious. The USCA agreed with the district court, and affirmed all rulings except for the CPUC's determination that Pac-West may disregard paging traffic for purposes of computing the presumptive volume of traffic bound for an internet service provider. As to that issue, federal law is to the contrary. The USCA thus reversed and remanded the ruling on calls to paging customers. Rymer (author), T.G. Nelson, and W. Fletcher, Circuit Judges. B. Gross of San Francisco, CA, for the plaintiff-appellant; D. Rodriguez of San Francisco, CA, for Pac-West Telecomm; L. Brown of San Francisco, CA, for the Commissioners of the PUC. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Oregon Natural Desert Assoc. v. U.S. Forest Service, 05-35637 (9th Cir. Sept. 21, 2006). At issue here was whether the Forest Service's issuance of annual operating instructions ("AOIs") to permittees who graze livestock on national forest land constitutes final agency action for purposes of judicial review under 5 USC Secs. 702-706. The district court held that an AOI is not final within the meaning of Sec. 704 and dismissed plaintiffs' lawsuit for lack of subject matter jurisdiction. The USCA reversed, finding that issuing an AOI is a "final agency action" under Sec. 704 and thus that the plaintiffs' claims were ripe for judicial review. The record supports the conclusion that an AOI is a discrete, site-specific action representing the Service's last word from which binding obligations flow and these obligations have a "direct and immediate" effect on the day-to-day business of the permit holder. Moreover, an AOI imposes substantial and intricate legal obligations on the permit holder. Dissenting, Judge Fernandez thought that the final agency action take place when the Service issues the permits to allow grazing by certain numbers of livestock for certain periods on designated land allotments. These permits provide for the possibility of cancellation or suspension. Moreover, they provide for periodic changes and adjustment , as needed, for resource protection. If every AOI for every permit in every allotment every year is to be open to litigation by the plaintiff, and others, Judge Fernandez thought it difficult to see how the grazing program could continue, if the purpose of the program is to feed animals. But, he said he feared that what is really afoot is an attack by the plaintiff on the whole grazing program. Fernandez (dissenting), Tashima, and Paez (author), Circuit Judges. P. Lacy of Portland, OR, for the plaintiffs; AAG K. Johnson of Washington, DC, for the defendants; K. Budd-Falen of Cheyenne, WY, for the intervenors. See memo decision #8 below. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) ENERGY LAW: Pacific Gas & Electric Co. v. FERC, 04-70635 (9th Cir. Sept. 18, 2006). The California Independent System Operator ("Cal-ISO") and Pacific Gas and Electric Company ("PG&E") petitioned for review, alleging that the Federal Energy Regu-latory Commission ("FERC") committed errors in permitting Cal-ISO to re-run certain Settlement Statements. The USCA dismissed the petitioners for lack of subject matter jurisdiction. It lacked subject matter jurisdiction to consider Cal-ISO's petition for review as it implicated FERC's prosecutorial discretion. In addition, it held that it lacked subject matter jurisdiction to entertain PG&E's petition for review because it constituted an impermissible collateral attack on a prior FERC order. Tashima, Thomas (author), and Callahan, Circuit Judges. P. Mohler of Washington, DC, for the petitioner; C. Robinson of Washington, DC, for the petitioner-intervenors; C. Marlette of Washington, DC, for the FERC. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) LABOR LAW: Healthcare Employees Union, Local 399 v. NLRB, 03-72029 (9th Cir. Sept. 11, 2006). The petitioner sought review of a final order of the National Labor Relations Board ("NLRB") dismissing the Union's unfair labor practice charge against St. Vincent Medical Center. The Union alleged that St. Vincent subcontracted out the work of the hospital's respiratory care department on the eve of a union election to prevent employees in that department from voting in the election, an act that violates Secs. 8(a)(1) and 8(a)(3) of the National Labor Relations Act. An administrative law judge ruled that the Union failed to carry its burden of persuasion that anti-union animus was a motivating factor in St. Vincent's subcontracting decision and dismissed the complaint. That ruling was affirmed by the NLRB. The NLRB also ruled that even if the Union had carried its burden of persuasion, St. Vincent demonstrated that it would have subcontracted out the work of the department in the absence of union organizing activity. The USCA granted the Union's petition for review and remanded for further proceedings because the Board's conclusions were not supported by substantial evidence on the record as a whole. Dissenting, Judge Beezer noted that although the correct standard for review of NLRB decisions appears in the majority opinion, a different standard was applied in its evaluation of the record made by the ALJ and NLRB. Pregerson (author), Canby, and Beezer (dissenting), Circuit Judges. D. Rosenfeld of Oakland, CA, for the petitioner; M. Jason of Washington, DC, for the respondent; G. Letter of Los Angeles, CA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) LABOR LAW: Bliesner v. The Communication Workers of America, 04-35702 (9th Cir. Sept. 13, 2006). Bliesner brought a hybrid fair representation / Sec. 301 suit against her union and employer, alleging that her union breached its duty of fair representation in violation of the National Labor Relations Act and that her employer breached its collective bargaining agreement ("CBA") in violation of Sec. 301(a) of the Labor Management Relations Act. The district court granted summary judgment against Bliesner on the ground that she failed to establish that her employer breached the CBA. The district court did not address the question of whether the union breached its duty of fair representation. On appeal, Bliesner maintained that the district court should not have reached the question of her employer's obligation under the CBA without first addressing the question of her union's duty of fair representation. The USCA disagreed. Bliesner had to prevail on both questions in order to survive the motion for summary judgment. The district court was not required to decide the questions in any particular order, and it properly granted summary judgment against Bliesner after holding that the employer had not breached the CBA. Tashima and W. Fletcher (author), Circuit Judges, and Pollak, District Judge. R. Amaro of Coeur d'Alene, ID, for the appellant; A. Herzfeld of Boise, ID, and T. O'Connell of Seattle, WA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

11) LABOR LAW: Leon v. IDX Systems Corp., 04-35983 (9th Cir. Sept. 20, 2006). Leon worked as the director of medical informatics at IDX Systems Corporation. After he was placed on unpaid leave, he sued IDX, alleging violations of the anti-retaliation provisions of the False Claims Act, Title VII, the Americans with Disabilities Act, and Washington state law. He also filed a complaint with the U.S. Department of Labor ("DOL"), claiming that IDX violated the whistleblower-protection provision of the Sarbanes-Oxley Act. The district court dismissed Leon's claims with prejudice after determining that he had despoiled evidence by deleting files from his IDX-issued laptop during the pendency of the litigation. It also imposed a $65,000 monetary spoliation sanction. Leon appealed the sanctions and IDX cross-appealed the district court's decision not to enjoin, on res judicata grounds, the DOL's proceedings against IDX. The USCA affirmed. It found that the district court did not abuse its discretion when it imposed a terminating sanction dismissing with prejudice Leon's action and imposed a monetary sanction. However, because the court erred in concluding that the privity element of res judicata had not been satisfied, the USCA reversed and remanded for the district court to determine whether an injunction should be issued pursuant to the All Writs Act. Thompson, Tashima (author), and Callahan, Circuit Judges. K. Kieffer of Tacoma, WA, for the appellant; A. Calfo of Seattle, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

12) LABOR LAW: Chamber of Commerce of the United States v. California Labor Federation, AFL-CIO, 03-55166 (9th Cir. Sept. 21, 2006). At issue here was whether California's exercise of its sovereign power to control the use of its funds conflicted with national labor policy as expressed in the National Labor Relations Act. Specifically, two provisions in a California statute barred em-ployers receiving state grant or program funds in excess of $10,000 from using such funds to assist, promote or deter union organizing. The USCA held that California's grant and program funds restrictions do not undermine federal labor policy, are not preempted by the NLRA, and do not violate the First Amendment. Judge Beezer, joined by Judges Kleinfeld and Callahan, dissented. He thought Cali-fornia Assembly Bill No. 1889, Cal. Gov't Code Secs. 16645-16649, violates the First Amendment and was preempted under Machin-ists v. Wisconsin Employment Relations Commission, 427 US 132 (1976), and San Diego Building Trades Council v. Garmon, 359 US 236 (1959). Schroeder, Reinhardt, Beezer (dissenting), Kozinski, Kleinfeld, Hawkins, Thomas, Silverman, McKeown, Wardlaw, Fisher (author), Paez, Rawlinson, Clifton, and Callahan, Circuit Judges. B. Lockyer of Sacramento, CA, for the defendants-appellants; S. Berzon of San Francisco, CA, for the intervenors-appellants; B. Kampas of San Francisco, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

13) HOSTILE WORK ENVIRONMENT: Freitag v. Ayers, 03-16702 (9th Cir. Sept. 13, 2006). At issue here was whether a state department of corrections may be held liable for prison officials' failure to correct a hostile work environment that is the result of male prisoners' sexual harassment of female guards? The USCA said "Yes." There was overwhelming evidence presented to the jury that the California Department of Corrections and Rehabilitation ("CDCR") maintained a hostile work environment at Pelican Bay State Prison by failing to take prompt and reasonable corrective action with respect to Freitag's multiple complaints regarding inmate exhibi-tionist masturbation directed at her and other female correctional officers. There was also overwhelming evidence that agents of the CDCR retaliated against Freitag as a result of those complaints. For these reasons, the USCA affirmed the jury's verdict with respect to the CDCR's liability under Title VII. However, due to an intervening Supreme Court decision, the USCA remanded for reconsideration of the jury's finding that Freitag's superiors retaliated against her in violation of her First Amendment rights in light of the instructional error regarding constitutionally protected speech. In this connection, the USCA directed the district court to determine whether such error was harmless. The USCA thus remanded the damages award and the attorneys' fees award. Because of the insufficiency of the evidence, the USCA reversed the Sec. 1983 judgment against Lopez. Finally, it affirmed the district court's grant of injunctive relief. Pregerson (author), Noonan, and Hawkins, Circuit Judges. AAG J. Appelsmith of Sacramento, CA, for the defendants-appellants; P. Price of Oakland, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) ERISA: Bassiri v. Xerox Corp., (9th Cir. Sept. 12, 2006). The district court determined that ERISA applied to Xerox's Long-Term Disability Plan because it pays only 60% of Bassiri's salary. Bassiri challenged that determination. The USCA held that the Plan may qualify as a payroll practice even though it pays less than Bassiri's full salary. Because the district court reached a contrary conclusion on that issue, it had not considered whether the Plan otherwise qualified as a payroll practice. The USCA thus reversed and remanded for the district court to consider, in the first instance, whether the Plan is in fact a payroll practice exempt from ERISA. Pre-gerson (author), Noonan, and Thomas, Circuit Judges. K. Brewer of Westlake Village, CA, for the plaintiff-appellant; R. Pautler of St. Louis, MO, for the defendant-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

15) DISABILITY BENEFITS: Feibusch v. Integrated Device Technology Employee Benefit Plan, (9th Cir. Sept. 7, 2006). Feibusch appealed the district court's decision that Sun Life Assurance Company of Canada did not abuse its discretion in terminating her disability benefits. His principal argument was that the district court incorrectly applied abuse of discretion review rather than de novo review. Feibusch was denied benefits under policy language that states that proof of a disability claim "must be satisfactory to Sun Life." The USCA held that de novo review applies under the policy language at issue. It thus reversed the summary judgment in favor of Sun Life and remanded for trial proceedings. Hug (author), Merritt, and Paez, Circuit Judges. M. DeBofsky of Chicago, IL, for the plaintiff; K. Hiraoka of Honolulu, HI, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

16) DISABILITY BENEFITS: Lounsburry v. Barnhart, 04-15690 (9th Cir. Sept. 20, 2006). Lounsburry appealed the district court's judgment affirming the Commissioner of Social Security's decision to deny her disability benefits under Title II of the Social Security Act. Her application for benefits was denied initially and on reconsideration, and she requested a hearing before an adminis-trative law judge ("ALJ"). The ALJ found that although Lounsburry had severe exertional and non-exertional impairments that pre-cluded her performing her previous work, those impairments were not disabling because they did not preclude her from performing a single occupation that existed in significant numbers in the economy. Lounsburry maintained that the ALJ committed legal error because Rule 202.00(c) of the Medical Vocational Guidelines, as applied to the ALJ's uncontested findings of fact, directs as a matter of law a determination that Lounsburry is disabled. The USCA agreed. It reversed and remanded with instructions for the payment of benefits. Hug (author), Alarcon, and McKeown, Circuit Judges. K. Dunn of Richmond, CA, for the appellants; S. Ryan of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) DISABILITY BENEFITS: Greger v. Barnhart, 04-35891 (9th Cir. Sept. 20, 2006). Greger appealed the district court's order affirming the Commissioner of Social Security's denial of disability benefits under Title II of the Social Security Act. The USCA af-firmed, finding no miscarriage of justice or error of law in the administrative proceedings. Dissenting, Judge Ferguson noting that, despite the fact that Greger informed the ALJ of his VA rating for Post Traumatic Stress Disorder ("PTSD"), the ALJ made no mention of the VA's finding in his consideration of Greger's disability claim. The ALJ cursorily acknowledged Greger's history of PTSD and completely failed to reference either the VA's rating or its basis. Moreover, it was not apparent from the record that the ALJ otherwise considered the VA's rating. This omission, Judge Ferguson thought, clearly violated McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002). Judge Ferguson would reverse and remand the case with instructions to send the case back to the ALJ for additional factual development and consideration of the impact of Greger's PTSD on his ability to function in the workplace. Ferguson (dissenting) and Callahan, Circuit Judges, and Bolton (author), Circuit Judges. R. Coufal of Spokane, WA, for the plaintiff; R. McCallum of Seattle, WA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) WELFARE BENEFITS: Sanchez v. County of San Diego, 04-55122 (9th Cir. Sept. 19, 2006). In this class action the appel-lants, San Diego County welfare recipients, appealed the district court's summary judgment in favor of the County and various county officials. The appellants maintained that the district court erred in concluding that the County's welfare eligibility program ("Project 100%"), which requires all welfare applicants to consent to a warrantless home visit as a condition of eligibility, does not violate their rights under the U.S. Constitution, the California Constitution, or California welfare regulations prohibiting mass and indiscriminate home visits. The USCA held that Project 100% does not violate the U.S. Constitution, the California Constitution, or California welfare regulations. It thus affirmed the district court. Specifically, Project 100% home visits are not Fourth Amendment searches under Wyman v. James, 400 US 309 (1971), and the Supreme Court's subsequent "special needs" cases. Because Project 100% searches are reasonable, they do not violate the Fourth Amendment or the California Constitution. Finally, MPP Sec. 20-007.33's prohibition against "mass and indiscriminate home visits" was inapplicable to Project 100% home visits because Sec. 20-007.33 applies only to forcause home visits. Dissenting, Judge Fisher could not agree with the majority's conclusion that Wyman "directly controls" the resolution of this case. Unlike the present case, Wyman involved a primarily rehabilitative home visit by a social assistance case-worker "whose primary objective [was], or should [have been], the welfare, not the prosecution, of the aid recipient for whom the worker [had] profound responsibility." That, Judge Fisher said, is a far cry from the program carried out by the County of San Diego, whose Project 100% home visits entail a law enforcement agent walking through the applicant's home in search of physical evidence of ineligibility that could lead to criminal prosecution either for welfare fraud or other crimes unrelated to the welfare application. Kleinfeld, Tashima (author), and Fisher (dissenting), Circuit Judges. E. Isaacson of San Diego, CA, for the plaintiffs. T. Bunton of San Diego, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) EDUCATION LAW: Arizona State Board for Charter Schools v. U.S. Dept. of Education, (9th Cir. Sept. 25, 2006). The parties differed on the interpretation of two federal statutes that define the type of school eligible to receive federal funds as "a non-profit institutional day or residential school, including a public [elementary or secondary] charter school, that provides [elementary or secondary] education, as determined under State law. Individuals with Disabilities Education Act, 20 USC Sec. 1401(6), (27) (2004); Elementary and Secondary Education Act of 1965, 20 USC Sec. 7801(18), (38) (2002). The district court construed "including" to mean "such as." The USCA affirmed, finding this construction consistent with the plain meaning of the language employed by Congress, the legislative history surrounding the provisions, and the reasonable interpretation given the language by the agency Congress directed to supervise the distribution of the funds at issue. Hawkins (author) and Thomas, Circuit Judges, and Miller, District Judge. W. Richards and D. Garner of Phoenix, AZ, for the plaintiffs-appellants; I. Lidsky of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) DISABILITIES EDUCATION ACT / ATTORNEYS' FEES: Park v. Anaheim Union High School Dist., 04-55569 (9th Cir. Sept. 28, 2006). Park and his mother brought this action against the Anaheim Union High School District and the Greater Anaheim Special Education Local Plan Area. They alleged that the defendants failed to comply with procedural and substantive requirements of the Individuals with Disabilities Education Act, and expressly challenged the award of compensatory services and the denial of attor-neys' fees. The district court affirmed the decision of the Hearing Officer of the California Special Education Hearing Office in part and modified minor details in part. The USCA affirmed in part and reversed in part. First, it found that the award was designed to compensate Park for the District's violations by better training his teachers to meet his particular needs. The Act did not require com-pensatory education services to be awarded directly to the student. The Hearing Officer and the district court did not abuse their dis-cretion when they awarded compensatory education services to Joseph in the form of individualized instruction for Joseph's teachers and addressed the implementation of the individualized education plan's self-help goals and objectives. However, the district court abused its discretion in holding that Park and his mother were not the prevailing party. Given the narrow discretion a district court has to deny fees in claims brought under the Act, the district court's decision ignored not only the letter of the law, but also the spirit and purpose of allowing attorneys' fees in cases where parents have been forced to litigate for years against school districts to obtain all or even part of the Act requires in the first place. The USCA thus remanded for a determination of reasonable attorneys' fees. In his concurrence Judge Beezer discussed the standards for awarding attorney's fees in a case such as this. Beezer, Hall (concurring), and Wardlaw, Circuit Judges. Per Curiam. B. Kim of Torrance, CA, for the appellants; J. Mott of Tustin, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) ELECTION LAW: Padilla v. Lever, 03-56259 (9th Cir. Sept. 19, 2006). A provision of the federal Voting Rights Act, 42 USC Sec. 1973aa-1a(c), requires that, in certain States with substantial linguistic minorities of voting age, election materials must be provided in the applicable minority languages as well as English. This requirement applies to any covered State or political subdivision that provides materials or information relating to the electoral process. At issues was whether this requirement attached as well to recall petitions initiated, circulated and paid for by private proponents of a recall, when the proponents are required to draft the petitions in a form specified by the State and county. The USCA held that Sec. 1973aa-1a(c) does not apply to such recall petitions as they are not provided by the State or its subdivision. The USCA thus upheld the district court's ruling which rejected the plaintiffs' challenge to a recall election triggered by petitions circulated only in English. Judge Reinhardt found that the plain meaning of the language of the Voting Rights Act compelled him to concur in the result reached by the majority, because neither the State or the County "provided" the recall petition at issue. But, he did not think the majority had to try to support its decision on practical and policy grounds. Dissenting, Judge Pregerson read Sec. 203 of the Act to require the translation of recall petitions circulated in areas with significant limited-English proficient voter population, as the purpose of the Act would be undermined if the recall petitions were printed only in English and limited-English proficient voters were deprived of their right to fully understand a petition they were solicited to sign. Schroeder, Pregerson (dissenting), Canby (author), Reinhardt (concurring), Kozinski, O'Scannlain, Rymer, Kleinfeld, Fisher, Gould, Paez, Tallman, Rawlinson, Bybee, and Bea, Circuit Judges, and Pollak, District Judge. N. Perales of San Antonio, TX, for the plaintiffs; W. Phillips of Santa Ana, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) CIVIL PROCEDURE / HUMAN RIGHTS: Merrill Lynch, Pierce, Fenner and Smith v. Arelma, (9th Cir. Sept. 12, 2006). In this interpleader action, appeal was made by several parties dissatisfied with a decision of the district court which awarded the funds in dispute to the Class of Human Rights Victims represented by Pimentel. The USCA held that the Republic of the Philippines and the Presidential Commission on Good Government were not indispensable parties under Fed. R. Civ. Proc. 19(b) and affirmed the district court. Noonan (author) and Thomas, Circuit Judges, and Robart, District Judge. S. Bomse of San Francisco, CA, for the Republic of the Philippines; J. Ziegler of Los Angeles, CA, for Arelma and the Philippine National Bank; D. Cathcart of Los Angeles, CA, for Golden Budha Corp. and Estate of Roxas; R. Swift of Philadelphia, PA, for Pimentel. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) FIRST AMENDMENT: Faith Center Church v. Glover, 05-16132 (9th Cir. Sept. 20, 2006). This appeal from the grant of a preliminary injunction involves an evangelical Christian church seeking access to a county library meeting room to conduct religious worship services. The USCA was called upon to navigate between two equally important interests: the church's right to access a gov-ernment building open to other groups, and the government's right to preserve its property for its intended use. The USCA concluded that the district court erred when it found that the church was likely to succeed on the merits of its First Amendment claim and thus abused its discretion in granting preliminary injunctive relief. Prohibiting Faith Center's religious worship services from the library meeting room was a permissible exclusion of a category of speech that is meant to preserve the purpose behind the limited public forum. Religious worship services can be distinguished from other forms of religious speech by the adherents themselves. The USCA thus reversed the injunction in part. Judge Karlton concurred, but wrote separately to express his dismay at the "sorry state of the law" in this area which fails to accept the plain meaning of the First Amendment. He thought the case should address the simple question of whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. Dissenting, Judge Tallman found the "Religious Use" exclusion to constitute an impermissible viewpoint discrimination because the country opened its public meeting room to the community in order "to encourage [its use] for educational, cultural and community related meetings, programs and activities." Notwithstanding the broad and inclusive policy it approved, the county unlawfully excluded certain members of the community from engaging in activities that fell squarely within the policy's scope by examining the way an applicant's viewpoints are expressed. Political organizations like the local Democratic Party were admitted, Judge Tallman noted, while religious groups were not. Paez (author) and Tallman (dissenting), Circuit Judges, and Karlton (concurring), District Judge. S. Marchesi of Martinez, CA, for the appellants; B. Bull of Scottsdale, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) COMMERCIAL SPEECH: Ballen v. City of Redmond, 04-35606 (9th Cir. Sept. 15, 2006). This First Amendment commercial speech case arose from a dispute between Ballen's use of outdoor advertising and a City's commercial signage ordinance. The City appealed the district court's orders granting Ballen summary judgment and attorneys' fees. Ballen had challenged the ordinance which prohibited all portable signs, with ten exceptions, arguing that it did not directly advance the government's interest and, in the alterna-tive, reached further than necessary to accomplish the government's interests. The district court held that the Ordinance was invalid. The USCA agreed and also upheld the fee award. The Ordinance fails to satisfy the four-part test of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 US 557, 561-62 (1980). It impermissibly discriminates against the commercial speech rights of businesses within the City in a content-based manner more extensive than necessary to serve the City's legitimate governmental inter-ests. Tallman (author) and Bybee, Circuit Judges, and Huff, District Judge. J. Lell of Seattle, WA, for the appellant. S. Simpson of Arlington, VA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) CONSTITUTIONAL LAW: Klein v. San Diego County, 04-55819 (9th Cir. Sept. 18, 2006). The plaintiffs challenged the constitutionality of a residential picketing ordinance enacted by San Diego County. The ordinance, San Diego County Code Sec. 311.103, reads: "No person shall engage in picketing activity that is targeted at and is within three hundred (300) feet of a residential dwelling in the unincorporated areas of the County of San Diego." The USCA concluded that the ordinance is not unconstitutional in every conceivable application and is not unconstitutionally vague. It thus affirmed the district court's order dismissing the plaintiffs' constitutional claims. Pregerson (author), Cowen, and Thomas, Circuit Judges. M. Kumeta of La Mesa, CA, for the plaintiffs-appellants; W. Johnson of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) NATIVE AMERICAN LAW: Allen v. Gold Country Casino, (9th Cir. Sept. 29, 2006). Allen is a former employee of the Gold Country Casino, which is owned and operated by the Tyme Maidu Tribe of the Berry Creek Rancheria in California. After the Casino fired him, he sued it and the Tribe. The district court dismissed the claims against the Tribe and the Casino on grounds of sovereign immunity. Allen conceded the Tribe's immunity, but argued that the district court erred in extending that immunity to the Casino without scrutinizing the relationship between the Tribe and the Casino. The USCA found no error in the district court's dismissal of the claims against the Casino as the record and the law established sufficiently that it functions as an arm of the tribe. Allen also asserted claims against Mayhew, a tribal member, and John Doe defendants. The USCA reversed in part the district court's dismissal of these claims and remanded for consideration of Allen's claims under 28 USC Secs. 1981 and 1985, along with any state law claims over which the district court may exercise supplemental jurisdiction. Canby (author), Thompson, and Hawkins Circuit Judges. D. Childress of Washington, DC, for the plaintiff-appellant; B. Green of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) IMMIGRATION: Granados-Oseguera v. Gonzales, 03-73030 (9th Cir. Sept. 25, 2006). The petitioner sought review of the BIA's affirmance of an Immigration Judge's denial of cancellation of removal as well as the BIA's denial of his motion to reopen pro-ceedings to allow him to apply for adjustment of status. The USCA denied the petition as to the equal protection claim based on a claim of disparate treatment of different classes of aliens; but, it did not violate the petitioner's equal protection rights to treat aliens permitted voluntarily to depart differently from aliens not eligible for voluntary departure with respect to the amount of time in which they may file a motion to reopen proceedings. However, the USCA granted the petition as to the BIA's denial of the petitioner's motion to reopen proceedings and as to his ineffective assistance of counsel claim. Petitioner's counsel failed to file a petition for review or a motion to reopen proceedings within the 30-day voluntary departure period. Counsel knew or should have known that the petitioner would be barred from relief if he failed timely to file the petition or motion. These failings occurred despite the fact that counsel received several warnings and notices from the IJ as to the consequences of the petitioner failing to depart within that 30-day period; moreover, these failures occurred despite clear case law holding that motions to reopen filed after the voluntary departure period had expired would be denied as untimely petitions for review and dismissed by the USCA. B. Fletcher (author), Tashima, and Callahan (dissenting), Circuit Judges. M. Canty of Tucson, AZ, for the petitioner; A. Rabin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Puri v. Gonzales, 05-36182 (9th Cir. Sept. 28, 2006). Puri, a native and citizen of India, lawfully entered the U.S. with an immigrant visa in 1984. He married an U.S. citizen with whom he had two U.S. citizen children. Following convictions for child molestation and indecent liberties, he was placed in deportation proceedings before an immigration judge and ordered deported to India. After a series of appeals and procedural rulings, Puri moved for reconsideration, raising new evidence of rehabilitation in the form of a psychological evaluation. These were denied by the IJ. The BIA then denied Puri's request for relief. Puri next filed a habeas petition in the district court, challenging a January 15, 1997 order, which ordered him deported to India. The district court also dismissed the petition for lack of jurisdiction pursuant to the REAL ID Act. The USCA affirmed the dismissal of Puri's habeas petition and its implicit denial of his 28 USC Sec. 1631 transfer request. Thompson, Tashima (author), and Callahan, Circuit Judges. D. Kowalski of Austin, TX, for the petitioner; AUSA C. Pickrell of Seattle, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION: Perez-Enriquez v. Gonzales, 03-70244 (9th Cir. Sept. 15, 2006). At issue here was whether an alien's admissibility under the Special Agricultural Worker ("SAW") program is determined solely by the date of admission for lawful temporary residence under 8 USC Sec. 1160(a)(1), or determined both as of that date and the date of adjustment to lawful permanent residence under Sec. 1160(a)(2). The USCA affirmed, holding that admissibility is determined as of the date of admission for lawful temporary residence, and is not redetermined as of the date of adjustment to lawful permanent residence. Dissenting in part, Judge Wardlaw would remand to the BIA to give it an opportunity to rule that the relevant admissibility date for a SAW applicant is the date of admission as a lawful temporary resident. Judge Bybee, joined by Judge Silverman, dissented in part; he thought the majority had over-stepped the bounds of INS v. Ventura, 537 US 12 (2000). Judge Callahan, joined by Judges O'Scannlain, Tallman, and Rawlinson, dissented. He did not agree that Matter of Jimenez-Lopez, 20 I.&N. Dec. 738 (BIA 1993), was dispositive, as the issues decided in there were different from those presented here. Moreover, he thought the sounder perspective was that 8 USC Sec. 1227(a)(1)(A) allows the respondent to use the later date as the adjustment of status date. Schroeder, Reinhardt, O'Scannlain, Thomas, Silverman, McKeown, Wardlaw (dissenting in part), W. Fletcher (author), Fisher, Paez, Berzon, Tallman, Rawlinson, Bybee (dissenting in part), and Callahan (dissenting), Circuit Judges. R. Labrador of Nampa, ID, for the petitioner; F. Fraser of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) IMMIGRATION: USA v. Jawara, 05-30266 (9th Cir. Sept. 15, 2006. Jawara appealed his convictions for document fraud re-lated to his personal asylum application and conspiracy to commit marriage fraud to avoid immigration laws. He challenged the district court's denial of his motions to sever the two counts, to suppress physical evidence, and to conduct a pre-trial hearing addressing the reliability of expert testimony, as well as various evidentiary rulings by the district court. The USCA focused on Jawara's claim of misjoinder and clarified the framework for assessing whether the joined offenses were of the "same or similar character" under Fed. R. Criminal Proc. 8(a). Looking to the indictment, the USCA concluded that the two counts were unrelated in nature and purpose, tempo-ral scope, physical location, modes of operation, and key evidence. To suggest that joinder is proper simply because each involves an immigration matter would stretch the "same or similar character" basis for joinder beyond reasonable limits. Although the USCA held that the counts were misjoined, that error did not warrant reversal. The USCA thus affirmed the convictions. Reinhardt (dissenting), McKeown (author), and Clifton, Circuit Judges. R. Hurvitz of Seattle, WA, for the defendant-appellant; AUSA M. Lang of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) IMMIGRATION: Hosseini v. Gonzales, 03-73734 (9th Cir. Sept. 28, 2006). Hosseini, an Iranian citizen, came to the U.S. on a student visa. He did not attend school and overstayed his visa. He was ordered deported as an overstay, but succeeded in having his deportation proceedings reopened. He sought asylum, withholding of deportation, and adjustment of status. He also sought withholding and deferral of deportation under the Convention Against Torture ("CAT"). An immigration judge denied Hosseini all relief primarily due to his links to the Iranian dissident group Mujahedin-e Khalq ("MEK"), a group designated a terrorist organization by the U.S. Secretary of State. The immigration judge also denied relief under CAT on the ground that Hosseini failed to show that it was more likely than not that he would be tortured if deported to Iran. The Board of Immigration Appeals ("BIA") dismissed Hosseini's appeal, upholding the IJ's rulings. The BIA stated alternatively that it denied asylum as a matter of discretion because of Hosseini's immigration fraud. It affirmed the denial of adjustment of status on the ground of inadmissibility, and, in addition, denied adjustment as an exercise of discretion, due to Hosseini's terrorist-connected activities and fraud. The BIA also stated that Hosseini's terrorist-related activities precluded withholding of deportation not only under the Immigration and Nationality Act ("INA"), but also under the CAT. On appeal, the USCA denied the petition with regard to the BIA's denial of asylum and dismissed the petition with regard to the denial of adjustment of status. It granted the petition with regard to withholding of deportation under the INA, vacate that portion of the BIA's decision, and remanded for further proceedings. The USCA denied the petition for review with regard to withholding of deportation under the CAT. It granted the petition for review with regard to deferral of deportation under the CAT, and reversed that portion of the BIA's decision and remanded for an award of deferral. Canby (author), Gould, and Bea, Circuit Judges. M. Adams of Seattle, WA, for the petitioner; W. Peachey of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION: Padilla-Padilla v. Gonzales, 02-73627 (9th Cir. Sept. 13, 2006). Based on advice of counsel, the Padillas filed an application for asylum shortly before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. After the Act's effective date, the former Immigration and Naturalization Service ("INS") initiated removal proceedings against them. Because these proceedings were initiated after the Act's effective date, a ten-year period of continuous presence in the U.S. was required to qualify for relief from removal rather than the seven-year period that previously had been required to qualify for relief from deportation. The Padillas could not satisfy the ten-year period. The immigration judge denied their application for asylum, and granted them 60 days within which to depart voluntarily, after which an order of removal would be entered if they had not departed. In a streamlined order, the BIA affirmed the IJ's decision, but reduced the voluntary departure period to 30 days. The Padillas moved to reopen before the BIA based on ineffective assistance of counsel. The BIA denied the motion. The USCA consolidated two appeals: 02-73627 in which the Padillas sought review of the BIA's streamlined decision; and, 03-73964 in which the Padillas sought review of the BIA's denial of their motion to reopen. The USCA granted the petition for review in 02-73627 and remanded for further proceed-ings with respect to voluntary departure. It denied the petition in 03-73964. Tashima, W. Fletcher (author), and Callahan, Circuit Judges. M. Van Der Hout of San Francisco, CA, for the petitioners; D. Bernal of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) AIRPORT SEARCHES: USA v. Rowland, 05-10375 (9th Cir. Sept. 13, 2006). Rowland appealed the denial of his motion to suppress evidence and his motion for pretrial discovery related to his conviction for possession of methamphetamine with intent to distribute. The USCA held that Guam Customs officers are statutorily authorized to stop any passenger arriving in Guam if the officer has reasonable suspicion to believe that the passenger is violating Guam's drug laws. The USCA also held that the totality of the cicumstances in this case gave rise to reasonable suspicion of which a violation, and that the district court did not abuse its discretion when it denied Rowland's motion for pretrial discovery. B. Fletcher, Pregerson (author), and Canby, Circuit Judges. J. Gorman of Mongmong, GU for the defendant-appellant; AUSA K. Johnson of Hagatna, GU, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) PRETRIAL DETAINEES: USA v. Howard, 03-50524 (9th Cir. Sept. 15, 2006). On this interlocutory appeal criminal defen-dants challenged a requirement that pretrial detainees making their first appearance before a magistrate wear leg shackles. This district-wide shackling policy was implemented by the U.S. Marshals Service for the Central District of California after consultation with the magistrates. In each cases on appeal, a magistrate denied the Federal Public Defender's motion for the defendant to appear without shackles at the initial appearance. The district court reviewed these adverse rulings in a consolidated appeal and, citing safety concerns, affirmed the magistrates' shackling decision. The record contains evidence that the policy was adopted after consultation between magistrates and the Marshals Service, and that it was implemented to address the security concerns associated with multidefendant proceedings in an unsecured, large courtroom, in a district in which the security personnel must cover several courthouses. The USCA found it undisputed that the policy effectuates some diminution of the liberty of pretrial detainees and detracts to some extent from the dignity and the decorum of a critical state of a criminal prosecution. However, it also found that the shackling policy was adopted with an adequate justification of its necessity. The USCA thus upheld the district court's order upholding the policy. Schroeder (author), Gould, and Clifton, Circuit Judges. C. Gunn of Los Angeles, CA, for the appellants; P. Fitzgerald of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) GUILTY PLEAS: USA v. Castillo, 05-30401 (9th Cir. Sept. 22, 2006). Castillo pleaded guilty to one count of being an illegal alien in possession of a firearm in violation of 11 USC Sec. 922(g)(5). He subsequently appealed the denial of his pre-plea motion to suppress and argued that the delay between the discovery of the firearm and his indictment constituted a violation of his Fifth Amend-ment due process rights. The USCA dismissed, finding that it lacked jurisdiction over the appeal because Castillo had entered an un-conditional guilty plea. However, the government did not argue that the USCA lacked jurisdiction due to Castillo's unconditional plea and its silence presented the undecided question whether the government could waive the jurisdictional defect thereby allowing the court to decide the merits of the appeal. The USCA held that the jurisdictional defect is not waivable and a defendant's failure to preserve his appellate rights by entering a conditional plea pursuant to Rule 11(a)(2) deprives the USCA of the authority to consider the merits of a claim. Dissenting, Judge Bybee thought that Ninth Circuit precedents would only not support, but even contradicted the majority's holding. Beezer (author), Tallman, and Bybee (dissenting), Circuit Judges. D. Reynolds of Dallas, OR, for the defendant-appellant; AUSA K. Bolton of Spokane, WA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

36) SENTENCING: USA v. Mueller, 05-10180 (9th Cir. Sept. 8, 2006). At issue here was whether the district court is authorized to order probation under the probation statute, 18 USC Sec. 3561, for a defendant convicted of receiving child pornography in violation of 18 USC Sec. 2252, which provides for a mandatory minimum sentence of incarceration. Section 2252 establishes a mandatory minimum sentence of five years of incarceration but does not explicitly preclude probation. Probation is precluded for this conviction under the Sentencing Guidelines. Mueller conceded that probation was not available as an alternative at the time of sentencing, when the district court was required to adhere to the Guidelines. In the wake of USA v. Booker, 543 US 220 (2005), however, the Guidelines are no longer mandatory, and Mueller argues that nothing precludes the district court from imposing probation instead of the minimum mandatory sentence. The USCA disagreed. Because such an accidental byproduct of Booker would contradict clearly manifested congressional intent, the USCA held that probation is not available as an alternative and affirmed the sentence imposed by the district court. Bright, McKeown, and Clifton (author), Circuit Judges. H. Trapp of Hagatna, GU, for the appellant; AUSA K. Johnson of Ha-gatna, GU, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

37) SENTENCING: USA v. Baza-Martinez, 05-10282 (9th Cir. Sept. 26, 2006). Baza-Martinez appealed his 70-month sentence, following his guilty plea to illegal re-entry after deportation, in violation of 8 USC Sec. 1326. Ninth Circuit case law recognizes that either psychological or physical harm is necessary to constitute "abuse." Because North Caroline General Statute Sec. 14-202.1 does not make psychological or physical harm to the minor a necessary element of the crimes it proscribes, the USCA concluded that Baza-Martinez's conviction under Sec. 14-202.1 did not qualify as "sexual abuse of a minor" and thus was not a "crime of violence" under Sentencing Guideline Sec. 2L1.2(b)(1)(A)(ii). The USCA thus vacated the sentence and remanded to the district court for resentencing in accordance with this opinion, all applicable provisions of the Sentencing Guidelines, and 18 USC Sec. 3553(a). B. Fletcher (author), Beezer, and Fisher, Circuit Judges. AFPD M. Portillo of Tucson, AZ, for the appellant; AUSA E. Berenguer of Tucson for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) SENTENCING: USA v. Napier, 05-30348 (9th Cir. Sept. 19, 2006). Napier pleaded guilty to one count of fraudulently obtaining, converting, and misapplying federal grant funds. After the sentencing hearing, the district court imposed several nonstandard conditions of supervised release in its written judgment. Napier maintained that the district court acted unlawfully by making these late additions to his sentence and that, in any event, two of the conditions were unwarranted. Napier also argued that the district court lacked authority to order restitution based on two dismissed counts. The USCA concluded that the district court erred in imposing the non-standard conditions of supervised release after the oral sentencing, and that it abused its discretion in imposing the condition requiring drug treatment. It also concluded that, for purposes of this appeal, Napier waived his argument regarding restitution by failing to raise it in the district court. Canby (author), Gould, and Bea, Circuit Judges. AFPD M. Geddes of Anchorage, AK, for the defendant; AUSA S. Cooper of Fairbanks, AK, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) SENTENCING: USA v. Durham, 05-30403 (9th Cir. Sept. 22, 2006). The district court found that Durham knowingly distributed a small quantity of marijuana to her 18-month-old daughter. She was convicted of knowingly and unlawfully distributing marijuana to a person under the age of 21, in violation of 21 USC Secs. 841(a)(1), 859(a), and sentenced to a five-year term of imprisonment. On appeal, she argued that testimony against her was improperly admitted and that the prosecution's evidence was insufficient to support her conviction. The USCA found these contentions lacking in merit and affirmed Durham's conviction. She also argued that her five-year sentence should be vacated because the applicable statutory maximum is two years. Agreeing with this contention, the USCA vacated the sentence and remanded for resentencing. Tashima and W. Fletcher, Circuit Judges, and Pollak (author), District Judge. S. Babcock of Billings, MT, for the plaintiff; M. Hurd of Billings, MT, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) SENTENCING: USA v. Stevens, 05-30597 (9th Cir. Sept. 13, 2006). Stevens appealed a 30-year sentence imposed by the district court after he plead guilty to Receipt of Child Pornography and Possession of Child Pornography, both in violation of 18 USC Sec. 2252A(a). His sole contention on appeal was that the district court's application of Sentencing Guideline Sec. 2G2.2(b)(2)(D), as amended in 2004, violated the constitutional prohibition against ex post facto laws. The USCA vacated and remanded for resentencing. By using the amended definition of "minor" and applying Sec. 2G2.2(b)(2)(D), the district court increased Stevens's total offense level from 34 (151-188 months) to 41 (324-405 months). Despite the district court's disdain for Stevens and the crimes he freely admitted to committing, the USCA could not, on the record, say that the district court would have imposed the same 360-month sentence had it not erred in its base offense level calculation. Goodwin (author), Tashima, and Graber (dissenting), Circuit Judges. M. Werner of Billings, MT, for the defendant-appellant; AUSA M. Hurd of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) SENTENCING: USA v. Washington, 04-50431 (9th Cir. Sept. 6, 2006). A jury convicted Washington of violating 18 USC Sec. 371 (conspiracy), 18 USC Secs. 2113(a) and (d) (armed bank robbery), and 18 USC Sec. 924(c) (using, carrying, or possessing a firearm in furtherance of a crime of violence). The district court sentenced him to 77 months imprisonment for the conspiracy and armed bank robbery convictions. It added a 5-year consecutive sentence for use of a firearm. On appeal, Washington asserted that he is entitled to have his conviction reversed because the district court improperly admitted into evidence statements obtained in violation of Miranda and that he was prejudiced as a result of prosecutorial misconduct when the Government, in front of the jury, referred to his custodial status and to the judge's ruling on a suppression motion. The Government cross-appealed the Sec. 924(c) sentence, claiming that Washington should have been sentenced to seven years on that conviction because it was based on the brandishing of a firearm in furtherance of the armed bank robbery. The USCA affirmed all the convictions, but vacated the sentences and remanded for resentenc-ing. Because Apprendi's prior conviction exception does not apply to juvenile adjudications obtained without the right to a jury trial, it is clear that, in Washington's case, the district court impermissibly relied on his juvenile adjudications to impose a sentence above the maximum sentence authorized by the jury verdict and the mandatory Guidelines in effect at that time. The USCA concluded that if the district judge had known that the Guidelines were advisory and had taken into account Washington's history, including the details and nuances concerning the circumstances and conduct resulting in his juvenile adjudications, along with all of the other factors contained in 18 USCA Sec. 3553(a), he may have imposed a materially different sentence. Hug (author), Pregerson, and Clifton, Circuit Judges. M. Treman of Santa Barbara, CA, for the appellant. AUSA E. Yang of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) RESTITUTION: USA v. Cienfuegos, 05-10201 (9th Cir. Sept. 8, 2006). The Government appealed the district court's denial of its motion to order restitution for future lost income to a manslaughter victim's estate pursuant to the Mandatory Victims Restitution Act of 1996 ("MVRA"). Because restitution for future lost income may be ordered under the MVRA so long as it is not based upon speculation, but is reasonably calculable, the USCA reversed and remanded to the district court to redetermine the amount of restitu-tion to be awarded. Rymer and Wardlaw (author), Circuit Judges, and Selna, District Judge. AUSA L. Boone of Phoenix, AZ, for the plaintiff-appellant; M. Lieberman of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) HABEAS CORPUS: Reynoso v. Giurbino, 05-55695 (9th Cir. Sept. 6, 2006). The State of California, through Warden Giur-bino, appealed the district court's decision to grant Reynoso's habeas petition. It maintained that the claim on which relief was granted was unexhausted and that the state court's rejection of the claim was reasonable. The USCA affirmed the district court. It held that Reynoso's claim was properly exhausted and that, on the merits, he had demonstrated ineffective assistance of counsel under Strickland v. Washington, 466 US 668 (1984). It agreed with the district court that the state court's decision to the contrary constituted an unreasonable application of clearly established Supreme Court law. Dissenting, Judge Trott thought that the appeal was not ripe and that the appropriate action was to remand the matter. Reinhardt (author), Trott (dissenting), and Wardlaw, Circuit Judges. AG B. Lockyer of Los Angeles, CA, for the respondent; FPF M. Stratton of Los Angeles, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/)

44) HABEAS CORPUS / JURORS: Yee v. Duncan, 05-55265 (9th Cir. Sept. 11, 2006). The district court concluded that the state trial and appellate courts unreasonably determined that Yee failed to show purposeful discrimination. It sole basis for granting Yee's habeas petition was the prosecution's inability to explain one of her peremptory challenges to a juror. However, the USCA held that this inability by itself was not dispositive and did not relieve Yee of his ultimate burden of persuasion. The trial court and the state appellate court determined that Yee did not meet that ultimate burden. That determination, in light of Supreme Court precedent and law from lower federal courts, was reasonable. The USCA thus reversed the district court's decision and denied Yee's petition for habeas relief. Kozinski, Trott (author), and Bea, Circuit Judges. DAG B. Carlton of San Diego, CA, for the respondent; R. Yee pro se. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) HABEAS CORPUS / JURORS: Frierson v. Woodford, 04-99002 (9th Cir. Sept. 14, 2006). Frierson appealed the district court's denial of his 28 USC Sec. 2254 habeas petition which challenged a California jury's special circumstances findings and death penalty verdict for his convictions for assault with a deadly weapon, robbery, kidnapping for the purposes of robbery, and first degree felony murder. The USCA concluded that the trial counsel failed to investigate and present important mitigation evidence at the penalty phase of the third trial. Had counsel's investigation been adequate, the sentencing jury could have heard evidence that Frierson suffered from multiple childhood head trauma and possible organic brain dysfunction, borderline mental retardation and a learning disability, a history of chronic substance abuse, and an emotional disorder. It also concluded that counsel's performance was deficient when he failed to review juvenile court records and failed to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial. There was a reasonable probability that, had the jury been able to consider this evidence, the outcome of the penalty proceedings would have been different. The USCA thus reversed the district court's judgment denying habeas relief with respect to the penalty phase of the trial. Concurring, Judge Silverman noted that the subject of the testimony of one Lewis White concerned whether Frierson had killed Douglas Green, a crime for which Frierson had been convicted in 1972 in juvenile court and for which he was committed to the California Youth Authority. Counsel's error resulted in the loss of evidence that might have convinced a jury that White, not Frierson, killed Green. What could have been more important than that to a jury weighing life or death for Frierson, Judge Silverman asked. Because he was unable to find that counsel's error in this respect was not prejudicial, he joined the majority in reversing the denial of the writ of habeas corpus, as to the penalty phase of the trial, on this basis only. Having come to this conclusion, he did not reach whether counsel also was ineffective in his presentation of mitigating evidence. B. Fletcher, Silverman (concurring), and Paez (author), Circuit Judges. G. Freeman of Glendale, CA, for the petitioner; DAG S. Matthews of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) HABEAS CORPUS: Stephens v. Herrera, 04-56232 (9th Cir. Sept. 13, 2006). Stephen appealed the district court's dismissal of his 28 USC Sec. 2241 habeas petition for lack of jurisdiction. He argued that because the remedy provided by 28 USC Sec. 2255 is "inadequate or ineffective" to test his claim of "actual innocence" based on Richardson v. USA, 526 US 813 (1999), the district court could entertain his Sec. 2241 petition. The USCA concluded that Stephens had not made a sufficient showing of actual innocence within the meaning of Bousley v. USA, 523 U.S. 614, 623 (1998). It thus affirmed the district court's dismissal of his petition. Pregerson, W. Fletcher (author), and Bybee, Circuit Judges. M. Stephens pro se; E. Getreu of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) HABEAS CORPUS: King v. LaMarque, 05-15757 (9th Cir. Sept. 20, 2006. King appealed the denial of his habeas petition, raising four issues, only one of which was listed in the Certificate of Appealability ("COA") at the time of argument. Three of the issues pertain to the California Supreme court's dismissal of King's ineffective assistance claim upon determining that his habeas petition was filed after substantial delay. King asserted that the rule is inadequate and that his case fits the exceptions that allow federal courts to review claims that are otherwise procedurally barred. His fourth claim asserted that the district court erred in finding that he was not prejudiced by his trial counsel's failure to review a videotape of the victim and failure to object to a reference to his parole officer within that tape. The USCA vacated the district court's judgment with regard to the adequacy of the California timeliness rule and remanded for further proceedings consistent with this opinion. Goodwin, Reinhardt, and Hawkins (author), Circuit Judges. M. Alger of Clovis, CA, for the petitioner; DAG L. Ashley of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) HABEAS CORPUS: Comer v. Schriro, 98-99003 (9th Cir. Sept. 13, 2006). Arizona death row prisoner Comer appealed the district court's denial of his 28 USC Sec. 2254 habeas petition challenging his conviction and capital sentence for first degree murder, armed robbery, kidnapping, aggravated assault, sexual assault, and sexual abuse. Before his appeal was heard, however, Arizona and Comer moved to dismiss the appeal because Comer expressed his desire to be executed. On remand, the district court held an eviden-tiary hearing and found Comer to have competently and voluntarily waived his habeas appeal rights. Habeas counsel challenged that determination. The USCA agreed that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, the USCA noted that it would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, and that would violate the Eighth Amendment to the U.S. Constitution. The USCA thus denied the State's and Comer's motions to dismiss the appeal and proceed to review the district court's denial of Comer's federal habeas petition. It held that Comer's sentence was invalid and granted the writ of habeas corpus based on the violation of Comer's due process rights when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted. Pregerson, Ferguson (author), and Rymer (dissenting in part), Circuit Judges. D. Young of Tucson, AR, for the petitioner; AAG J. Todd of Phoenix, AZ for the re-spondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) HABEAS CORPUS: Kesser v. Cambra, 02-15475 (9th Cir. Sept. 11, 2006). Kesser sought habeas corpus on the grounds that the prosecutor struck potential jurors due to their race in violation of the Equal Protection Clause. The USCA held that in light of Miller-El v. Dretke, 545 US 231, 125 S.Ct. 2317 (2005), the California Court of Appeal's findings were "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The California Court of Appeal's conclusion that the prosecutor did not strike a juror because she was Native American was wrong and unreasonably so. The record was so strong on this point that it could not admit of any other reading and even satisfied the more demanding standard of "rebutting the presumption of correctness by clear and convincing evidence." 28 USC Sec. 2254(e)(1). The USCA reversed the district court and granted the writ of habeas corpus. Judge Wardlaw, joined by Paez and Berzon, concurred, believing that the trial court abdicated its duty under Batson v. Kentucky, 476 US 79 (1986), to determine pretext, with particularly egregious results here, in the face of raw prosecutorial bias against Native Americans. Judge Berzon concurred in both the majority and Judge Wardlaw's concurrence, but added that there is a strong argument that the Batson standard should be stricter than the one Judge Wardlaw explicates as embedded in Equal Protection Clause cases. Dissenting, Judge Rymer, joined by O'Scannlain, Kleinfeld, Callahan, and Bea, thought the question was whether the California Court of Appeal's determination upholding the peremptory challenge based on a "mixed motive" was contrary to, or an unreasonable application of, clearly established federal law as declared by the U.S. Supreme Court. She thought it was not, and that, while Batson clearly established that the constitution forbids prosecutors from exercising peremptory challenges purposefully to discriminate against members of a cognizable group, the Supreme Court has never held that the only permissible challenge is one based solely on race neutral reasons. Neither, she thought, has the Supreme Court ever prescribed what test must be applied when a peremptory challenge is based on mixed prosecutorial motives. Schroeder, Kozinski, O'Scannlain, Rymer (dissenting), Kleinfeld, Wardlaw (concurring), Paez, Berzon (concurring), Bybee (author), Callahan, and Bea, Circuit Judges. W. Weiner of San Francisco, CA, for the petitioner; R. Covey of Costa Mesa, CA, for the petitioner; DAG M. Banister of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

1) BANKRUPTCY: Tcherevik v. Rybcomflot, 04-35968 (9th Cir. Sept. 28, 2006) (unpublished). Schroeder, Kleinfeld, and Bea, Circuit Judges.

Tcherevik was the court-appointed bankruptcy receiver of Dalmoreproduct, a Russian corporation. He appealed the district court decision affirming the bankruptcy court ruling. The bankruptcy court, after a state court jury trial and jury verdict, allowed another Russian corporation, Rybcomflot, to collect Dalmoreproduct's debt from court-deposited funds. The record thus reflected that Rybcomflot had an interest in assets located in the Western District of Washington. The USCA reviewed the district court de novo, reexamining for abuse of discretion bankruptcy court decisions concerning cases ancillary to a foreign bankruptcy proceeding. The legal standard governing this case was former 11 USC Sec. 304(c), a six factor discretionary test. Review of the record did not support a claim that the bankruptcy court abused its discretion in ruling against Tcherevik.

2) BANKRUPTCY: In re Michaely, 04-16901 (9th Cir. Sept. 11, 2006) (unpublished). Hawkins and Thomas, Circuit Judges, and Miller, District Judge.

Yehoshua Michaely ("Michaely") challenged two judgments of non-dischargeability entered by the bankruptcy court in favor of appellees Patty Michaely, his former spouse, and Fried and Goldsman, APLC, her counsel. The USCA affirmed. Michaely first argued that the bankruptcy court improperly gave evidentiary value to the Discovery Referee's findings of fact and conclusions of law. But, the bankruptcy court specifically gave no evidentiary value to the Discovery Referee's findings of fact and conclusions of law. Rather, it took testimony over a four day period of time, considered the parties' exhibits at the time of trial, and considered the evidence submitted during the dissolution proceedings. The bankruptcy court independently reviewed the evidentiary record and made findings of fact and conclusions of law based on admissible evidence-none of which were challenged by Michaely. While the bankruptcy court reached the same conclusions, and adopted the findings of the Discovery Referee as his own, such conclusions were based upon the evidentiary record before the bankruptcy court and its independent review of that evidence. Michaely next maintained that the bankruptcy court erred in declining to rule on his request to find that $826,146 in attorneys' fees had been discharged in Patty's bankruptcy case. Pursuant to 11 USC Sec. 524(e), the discharge of her obligations on the debt "does not affect the liability of any other entity on, or the property of any other entity for, such debt." 11 USC Sec. 524(e) (prevents the bankruptcy court from discharging liabilities of non-debtors). As the obligation for payment of attorneys' fees as support or maintenance was imposed on Michaely pursuant to the May 10, 1995 support order entered by the Los Angeles Superior Court, the attorneys' fees debt was Michaely's separate debt, not subject to discharge in Patty's bankruptcy case. Finally, Michaely maintained that Patty's failure to list her fraud and defalcation claims as assets in her own bankruptcy case precluded her from bringing those claims in an adversarial proceeding in his bankruptcy case. In general, when the value of an asset is unknown, as in the case of secreted assets, a "simple statement to that effect" satisfies the scheduling requirement of 11 USC Sec. 521(a). Here, Michaely failed to show that the bankruptcy court abused its discretion in concluding from the factual record that Patty properly disclosed the assets of the estate, to the extent then known, and her belief that Michaely had secreted and transferred community property.

3) BANKRUPTCY: Morgal v. Northwest Title Agency, Inc., 05-16321 (9th Cir. Sept. 14, 2006) (unpublished). Pregerson, T.G. Nelson, and Graber, Circuit Judges.

John and Patricia Morgal appealed pro se a district court's judgment dismissing for lack of subject matter jurisdiction their action alleging that Northwest Title Agency violated the automatic stay provided by 11 USC Sec. 362 when it obtained an equitable mortgage on property the Morgals purchased from individuals who subsequently filed for bankruptcy. The USCA had jurisdiction under 28 USC Sec. 1291, and affirmed following its de novo review. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). The district court correctly concluded that it lacked jurisdiction to consider the Morgals' action because they sought invalidation of the state court judgment permitting foreclosure of Northwest's equitable mortgage. Id. at 1158. The Morgals' action was thus a de facto appeal of the state court judgment, and the district court had to "refused to decide any issues raised in the suit "inextricably intertwined" with an issue resolved by the state court. Id. The USCA rejected the Morgals' contention that they have standing to pursue an independent action based on Northwest's alleged violation of the automatic bankruptcy stay.

4) TAXATION: Shannon v. CIR, 05-76135 (9th Cir. Sept. 15, 2006) (unpublished). Pregerson, T.G. Nelson, and Graber, Circuit Judges.

Shannon appealed pro se the Tax Court's decision, entered after trial, permitting the Commissioner of Internal Revenue ("CIR") to proceed with a collection action for tax years 1999 and 2002 related to the purchase and sale of real property. The USCA had jurisdiction pursuant to 26 USC Sec. 7482 and reviewed the Tax Court's findings for clear error and its legal rulings de novo. It affirmed. At trial Shannon conceded the validity of the tax deficiency and did not identify any errors in the administrative hearing. Shannon maintained, as he did on appeal, that the collection action should not proceed because various third parties involved in selling the property to him perpetrated fraud. As the Tax Court noted, although the petitioner may have a cause of action against the previous owner, title company, and other entities, that issue was not relevant for purposes of determining whether collection could proceed. Under the circumstances, the Tax Court did not error by permitting the CIR to proceed with the collection action.

5) TAXATION: Nicklaus v. CIR, 05-76983 (9th Cir. Sept. 15, 2006) (unpublished). Pregerson, T.G. Nelson, and Graber, Circuit Judges.

Brian and Tina Nicklaus appealed pro se from the Tax Court's decision, entered after trial, permitting the CIR to proceed with a collection action regarding their joint income tax liability for 1993 and 1994, and Brian's individual income tax liability for 1995 through 2000. The USCA affirmed. The appellants waived the Tax Court's determination that they are collaterally estopped from alleging irregularities in the assessment of tax liabilities for 1993 through 1996 after challenging those liabilities in Nicklaus v. CIR, 117 T.C. 117 (2001), because they did not challenge that determination on appeal. The Tax Court properly sustained the deficiency determination for 1997 through 2000 based on Forms 4340 for the years in question. It did not abuse its discretion by not considering appellants' motion to vacate because it was filed 62 days after the final decision was entered. See Tax Ct. R. 162 (requiring a motion to vacate to be filed within 30 days after entry of the Tax Court's decision). The USCA found the appellants' remaining contentions to be unpersuasive.

6) TAXATION: Stang v. CIR, 05-76003 (9th Cir. Sept. 15, 2006) (unpublished). Pregerson, T.G. Nelson, and Graber, Circuit Judges.

Stang appealed pro se from a Tax Court's decision, following a trial, in favor of the CIR in Stang's action contesting an unreported income determination for tax years 2000 and 2001. The USCA affirmed. The Tax Court did not err in according a presumption of correctness to the CIR's determination that Stang received unreported income based on the affidavit of his employer and other documentation introduced at trial, or in determining that Stang failed to rebut this presumption with evidence showing an error in the unreported income assessed. See Hardy v. CIR, 181 F.3d 1002, 1004-05 (9th Cir. 1999) (shifting to taxpayer the burden of showing unreported income determination was erroneous after the CIR presents substantial evidence of unreported income).

7) TAXATION: Major v. U.S. Internal Revenue Service, 05-36118 (9th Cir. Sept. 15, 2006) (unpublished). Pregerson, T.G. Nelson, and Graber, Circuit Judges.

Major appealed pro se from the district court's judgment dismissing his action for injunctive relief and damages against the Internal Revenue Service and its employees for actions associated with the collection of federal taxes. The USCA affirmed. The district court properly dismissed Major's damages claims against the IRS based on sovereign immunity. Major's request for injunctive relief also was barred by the Anti-Injunction Act. The district court property dismissed the claims against individual IRS for actions taken to collect taxes because Congress has established a comprehensive statutory scheme for seeking redress in federal tax matters and, contrary to Major's contentions, he failed to properly invoke these administrative remedies. See 26 USC Sec. 7422; Adams v. Johnson, 355 F.3d 1179, 1186 (9th Cir. 2004) (because the Internal Revenue Code gives taxpayers meaningful protections against government transgressions in tax assessment and collection, Bivens relief is unavailable for a suit against IRS auditors and officials). The district court also properly dismissed Major's RICO claim because he failed to allege the elements of such a claim. See Miller v. Yokohama Tire Corp., 358 F.3d 616, 620 (9th Cir. 2004) (holding that a prima facie RICO claim must articulate the conduct of an enterprise through a pattern of racketeering activity). Wagh v. Metris Direct, Inc., 348 F.3d 1102, 1111-12 (9th Cir. 2003) (holding that a RICO plaintiff must articulate the existence of an enterprise beyond that which was inherent in the alleged racketeering activity, and the mechanisms for controlling and directing the enterprise on an ongoing basis). Major's remaining contentions were unpersuasive.

8) ENVIRONMENTAL LAW: Oregon Natural Desert Assoc. v. U.S. Forest Service, 05-35689 (9th Cir. Sept. 21, 2006) (unpublished). Fernandez, Tashima, and Paez, Circuit Judges.

Oregon Natural Desert Association and Center for Biological Diversity, appealed the district court's dismissal of their challenge to the Forest Service's management of livestock grazing on national forest lands in the Blue Mountains of eastern Oregon. The district court dismissed the action, finding that it lacked jurisdiction to review the plaintiffs claims under Sec. 10(e) of the Administrative Procedure Act, 5 USC Sec. 706(2)(A), because the challenged Annual Operating Instructions ("AOIs") did not constitute a final agency action under 5 USC Sec. 704. The USCA reviewed de novo the district court's determination that it lacked subject matter jurisdiction. It reversed and remanded. Concurrent with the filing of this memorandum, the USCA decided Oregon Natural Desert Association v. U.S. Forest Service, 05-35637, which disposed of the jurisdictional argument at issue here. See Opinion summary #7 above. In the published opinion, the USCA held that the Forest Service's issuance of AOIs to grazing permit holdings constituted final agency action under Sec. 704 and thus that the plaintiffs' action was ripe for judicial review. In the present case, the district court erred in dismissing their Sec. 706(2)(A) claims for lack of subject matter jurisdiction. Judge Fernandez dissented for the reasons stated in his dissent in the published opinion.

9) WATER LAW: Creveling v. Washington, 05-36018 (9th Cir. Sept. 14, 2006) (unpublished). Pregerson, T.G. Nelson, and Graber, Circuit Judges.

Creveling appealed pro se the district court's judgment dismissing on Eleventh Amendment grounds his action arising from the State of Washington's seizure of a water diversion. The USCA had jurisdiction pursuant to 28 USC Sec. 1291, and following de novo review, it affirmed. Under the Eleventh Amendment of the U.S. Constitution, a State is immune from suit brought in federal court by its own citizens as well as citizens of another state. Although a state may waive its sovereign immunity by consenting to suit in federal court, such waiver must be unequivocally expressed. Washington's waiver of immunity in its own courts does not waive its immunity in federal court. Because Creveling named only the State of Washington as a defendant, the district court did not err in determining that his action was barred by the Eleventh Amendment. This decision did not preclude any action Creveling might file in state court. Creveling also objected to the denial of his motion for a default judgment, but he failed to set forth any basis for concluding that he is entitled to a default judgment or that the district court abused its discretion. The USCA denied the motion for injunctive relief that Creveling filed on August 24, 2006.

10) ATTORNEYS' FEES: Crawford v. San Dieguito Union School District, 04-56268 (9th Cir. Sept. 15, 2006) (unpublished). Pregerson, Clifton, and Bybee, Circuit Judges.

Crawford's parents sought attorneys' fees after partial success in their dispute with the San Dieguito School District. The parents opposed moving their son to a public high school, and challenged the district's proposed accommodations for him. They did not achieve private placement following their administrative hearing, but they did win a transition plan to help Michael adjust to the new school. The District did not appeal the decision, and Michael now attends public school. Noting the parents' limited success at the hearing, the district court declared the parents to be prevailing parties but awarded attorney's fees at a 40% reduction. The USCA found that this decision was not an abuse of discretion. A party may be awarded fees even if he does not prevail on all issues, provided he obtains "some relief by the court." Buckhannon Bd. & Care Home, Inc. v. West Virginia DHHR, 532 US 598, 603 (2001). The litigant must succeed, on the merits of at least some claims, but need not obtain a favorable judgment on all. Here, the Crawfords prevailed on one significant aspect of their claim, and were correctly considered prevailing parties for purposes of the Individuals with Disabilities Education Act ("IDEA"), 20 USC Sec. 1401 (2004). That designation, however, did not require that the parents receive full attorneys' fees. The Supreme Court has noted that, with respect to Sec. 1988 civil rights actions, a reduced fee is appropriate if the relief, "however significant, is limited in comparison to the scope of the litigation as a whole." Hensley v. Eckerhart, 461 US 424, 440 (1983). This degree of success standard is "generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party.'" Id. at 433 n.7; see also Farrar v. Hobby, 506 US 103, 113-14 (1992), and is controlling in IDEA cases, Aguirre v. Los Angeles Unified Sch. Dist., 2006 WL 2473479, *6 (9th Cir. 29, 2006). Both Hensley and the fee-shifting statute at issue here require that the district court award only "reasonable" attorneys' fees. 20 USC Sec. 1415(i)(3)(B); Hensley, 461 US at 433-34. Hensley's test does not require apportionment "mechanically" on the basis of success or failure on enumerated issues, but does require that judges properly consider the parties' achievement in a multi-claim context, considering, for example, hours spend on winning versus losing claims, the level of success achieved, and the degree of overlap between successful and unsuccessful claims. Hensley, 461 US at 434-35. In this case, the judge provided a scant but adequate analysis of the parties' degree of success, citing the hearing officer's page-long evaluation of prevailing party status and reducing fees because plaintiffs did not prevail on "a substantial number of issues." Although the judge did not consider the relative time spent on successful and unsuccessful claims, he did evaluate the reasonableness of the attorney's hourly rate and his fees for costs, staff, and expert witnesses. The judge noted that he based the fee award on his thorough review of the record, and considering the plaintiff's degree of success in this matter. The USCA found it troubling that the district court appears to question the accuracy of some of the hearing officer's findings-overturning her ruling, for example, that the parents' repeated failure to cooperate with the district amounted to bad faith. The district court may award fees for successful litigants, not revisit the merits to determine if the parties should have attained a greater degree of success. However, the district courts enjoy a great deal of discretion in carrying out the degree of success test, and the USCA did not think any errors in these calculations amounted to an abuse of discretion. It thus affirmed.

11) SANCTIONS: Jacobs v. Lanterman Developmental Center, 04-57170 (9th Cir. Sept. 18, 2006) (unpublished). Skopil, Boochever, and Leavy, Circuit Judges.

Jacobs appealed pro se the district court's order dismissing her action with prejudice as a sanction for her repeated motions to recuse the presiding judge. The USCA affirmed. Jacobs sought recusal pursuant to 28 USC Sec. 144 and 28 USC Sec. 455. The substantive standard for recusal under either statute is the same: "Whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." USA v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997). The alleged bias or impartiality must arise from "an extrajudicial source and not from conduct or rulings made during the course of the proceedings." USA v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995). Under this standard, the USCA held that the district court did not abuse its discretion by denying Jacobs' motions for recusal. The district court correctly noted that Jacobs sought four times to disqualify the presiding judge based solely on adverse rulings. In such instances, recusal is not required. See Taylor v. Regents of Univ. of California, 993 F.2d 710, 712-13 (9th Cir. 1993) (holding that adverse rulings alone are insufficient to demonstrate bias and to compel recusal). A district court may "dismiss an action for failure to comply with any order of the court." See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Nevertheless, because dismissal is a "harsh penalty," the USCA looks to various factors to determine whether the dismissal is an abuse of discretion. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing factors). Here the factors generally supported the court's decision to dismiss Jacobs' action. See Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (affirming dismissal based on three of the five factors). Moreover, this was not a case where the court gave no warning of the possibility of dismissal as a sanction. Jacobs was informed of the deficiencies in her motions and warned that filing another deficient motion would result in sanctions. When she ignored this warning, the court issued a show cause order, specifically noting the possibility of dismissal. The court dismissed the action only after Jacobs failed to respond to the court's order. Under these circumstances, there was no abuse of discretion. See Ferdik, 963 F.2d at 1261 (noting that the district court sufficiently warned a pro se litigant by explaining deficiencies in pleadings and stating twice that failure to comply with the court's order would result in dismissal). Finally, the USCA rejected Jacobs' contentions that the presiding judge should not have referred the recusal motions to another judge, that the referral judge lacked authority to rule on the motions or to dismiss the action, and that she was not given sufficient time to respond to the show cause order.

12) DISABILITY BENEFITS PLANS: LaMantia v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan, 05-16744 (9th Cir. Sept. 14, 2006) (unpublished). Canby, Thompson, and Hawkins, Circuit Judges.

LaMantia appealed the district court's summary judgment for the defendant disability-benefits Plan. Under the Plan an independent claims administrator, Voluntary Plan Administrator ("VPA"), determines whether a claimant qualifies for benefits. LaMantia sought review of the VPA's denial of her petition for long-term benefits, asserting that the denial was an abuse of discretion. Abatie v. Alta Health & Life Insurance Co., 03-55601 (9th Cir. Aug. 15, 2006), fundamentally changed how the USCA reviews administrator determinations under the Employee Retirement Security Act, 29 USC Secs 1001-1461. Under Abatie an abuse-of-discretion review is merited, in almost all cases, when the plan confers sufficient discretion to the plan administrator. The Plan here sufficiently vests such discretion. LaMantia v. Voluntary Plan Adm'rs, Inc., 401 F.3d 1114, 1123 (9th Cir. 2005). But Abatie also changed how courts are to apply the abuse-of-discretion standard, including 1) eliminating the need for plaintiffs to produce evidence of a serious conflict, id. at 9644; 2) allowing courts to "tailor review" after weighing "all the facts and circumstances" that might indicate a conflict of interest; and 3) allowing the court to weigh facts and circumstances outside the administrative record. Because Abatie creates such a significant shift in analysis and because of the district court's ability to conduct fact finding beyond the administrative record, the district court should apply Abatie in the first instance. The USCA thus remanded the case to the district court for further proceedings consistent with this disposition.

13) DISABILITY BENEFITS PLANS: Carter v. Hewlett-Packard Company Income Protection Plan, 05-16231 (9th Cir. Sept. 14, 2006) (unpublished). Canby, Thompson, and Hawkins, Circuit Judges.

Carter appealed the district court's judgment for the defendants. Under Hewlett-Packard's disability-benefits Plan, an independent claims administrator, Voluntary Plan Administrator ("VPA"), determines whether a claimant qualifies for benefits. Carter sought review of the VPA's denial of her petition for long-term benefits, asserting that the denial was an abuse of the VPA's discretion. Abatie v. Alta Health & Life Insurance Co., 03-55601 (9th Cir. Aug. 15, 2006), filed the day before argument in the present case, fun-damentally changed how the USCA reviews administrator determinations under the Employee Retirement Security Act, 29 USC Secs. 1001-1461. Abatie states that abuse-of discretion review is merited, in almost all cases, when the plan confers sufficient discretion to the plan administrator. The Ninth Circuit has held that the Plan here sufficiently vests such discretion. LaMantia v. Voluntary Plan Adm'rs, Inc., 401 F.3d 1114, 1123 (9th Cir. 2005). But Abatie also changed how courts are to apply the abuse-of-discretion standard, including 1) eliminating the need for plaintiffs to produce evidence of a serious conflict, id. at 9644; 2) allowing courts to "tailor review" after weighing "all the facts and circumstances" that might indicate a conflict of interest, id. at 9646, 9648; and 3) allowing the court to weigh facts and circumstances outside of the administrative record, id. at 9650. Because Abatie creates such a significant shift in analysis and because of the district court's ability to conduct fact finding beyond the administrative record, the district court should apply Abatie in the first instance. The USCA thus remanded to the district court for proceedings consistent with this disposition.

14) DISABILITY BENEFITS PLANS: Wright v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan, 04-16754 (9th Cir. Sept. 14, 2006) (unpublished). Canby, Thompson, and Hawkins, Circuit Judges.

The Hewlett-Packard Company Employee Benefits Organization Income Protection Plan appealed the district court's summary judgment for Wright. Under the Plan, an independent claims administrator, Voluntary Plan Administrator ("VPA"), determines whether a claimant qualifies for benefits. The district court held that Wright's organic brain syndrome fit an exception to the Plan's limitations regarding mental illnesses and that VPA ignored the condition and evidence that the condition fit the Plan's limited exception, thereby abusing its discretion. The USCA held that VPA misconstrued this exception. The phrase "other organic, degenerative, progressive diseases as determined by the Claims Administrator" means that any disease the VPA determined, or should have determined, to be "organic, degenerative, and progressive" fits the exception. If this was the only basis for finding that the VPA abused it discretion, the case had to be remanded to the administrator to apply the correct definition of the exception. Under Abatie v. Health & Life Insurance Company, 03-55601 (9th Cir. 15, 2006), abuse-of-discretion review is merited, in almost all cases, when the plan confers sufficient discretion to the plan administrator. The Plan here sufficiently vests such discretion. LaMantia v. Voluntary Plan Adm'rs, 401 F.3d 1114, 1123 (9th Cir. 2005). But Abatie changed how courts are to apply the abuse-of-discretion standard, including 1) eliminating the need for plaintiffs to produce evidence of a serious conflict; 2) allowing courts to "tailor review" after weighting "all the facts and circumstances" that might indicate a conflict of interest; and 3) allowing the court to weigh facts and circumstances outside of the administrative record. Because Abatie creates such a significant shift in analysis and because of the district court's ability to conduct fact finding beyond the administrative record, the USCA remanded so that it could apply Abatie in the first instance.

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