2) TAXATION: CIR v. Dunkin, 05-76004 (9th Cir. Aug. 31 2007). The Commissioner of Internal Revenue appealed a Tax Court decision allowing Dunkin to reduce his taxable income for the 2000 tax year by $25,511-the amount he paid his former spouse, Julie, incident to a division of community property upon marital dissolution. In 1997, a California Superior Court awarded Julie one-half of the marital community's interest in pension benefits provided by Dunkin's employer. However, because Dunkin chose to continue working and did not terminate his participation in the plan following divorce, the pension administrator did not begin making distributions straight away. California courts have recognized that an employee spouse like Dunkin might attempt to defeat a non-employee spouse's community interest in a pension by continuing to work. As a result, under California law, Julie was not required to await John's retirement and instead demanded monthly payments in lieu of her community pension interest pursuant to In re Marriage of Gillmore, 629 P.2d 1 (Cal. 1981). In 2000, Dunkin used $25,511 of the wages he earned by continuing to work to satisfy Julie's Gillmore rights. At issue on appeal was whether Dunkin was entitled to reduce his taxable income by the amount paid over to Julie in 2000. The USCA held that he was not and reversed the Tax Court's contrary ruling. The wages earned in exchange for his continued employment in the year 2000 were clearly income under the Internal Revenue Code. That Dunkin owed money to a creditor-in this case his ex-spouse-did not justify excluding any amount of his wages from income. Dissenting, Judge Reinhardt thought that the ma-jority had passes over a significant ambiguity regarding an issue of California law that has not been addressed by the state's highest court: whether a portion of a divorced employee's wages should be treated as community property when it is used solely for the payment of an ex-spouse's court ordered pension benefits that are community property; in such cases, the former spouse would have received the amount in question as pension benefits (i.e., community property) if her ex-husband had retired at the time he became eligible to do so. Alternatively, Judge Reinhardt thought the amount of wages paid over to the ex-wife as pension benefits could be considered to be exclusively the husband's wages and he would have to pay full taxes on that income even though he neither used nor benefited from it. The majority chose the latter option. Judge Reinhardt said he would have certified the question of how to treat the money involved under California law to the California Supreme Court. D.W. Nelson (author), Reinhardt (dissenting), and Rymer, Circuit Judges. D. Snyder of Washington, DC, for the appellant; J. Dunkin pro se. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) SECURITIES: SEC v. Phan, 05-55269 (9th Cir. Aug. 29, 2007). The SEC alleged that Phan used stock registered for employee compensation purposes to raise capital from the public for his cash-strapped publicly traded company, thereby violating federal securities law. The district court granted the SEC summary judgment, holding that Phan both engaged in an unregistered securities sale and committed securities fraud. On appeal, Phan maintained that the admissible evidence, viewed in the light most favorable to him, supported his position. The USCA affirmed the district court's summary judgment rulings concerning the registration issue. Whether or not the stock was initially issued to compensate bona fide consulting services, Phan was involved in its subsequent resale to raise capital for the company and thereby violated the registration provision of federal securities law. However, the USCA agreed with Phan that the summary judgment record did not show that he made misstatements material as a matter of law. The USCA thus reversed the grant of summary judgment in favor of the SEC with respect to the antifraud claims and vacated some of the relief the district court awarded against Phan. Pregerson, W. Fletcher, and Berzon (author), Circuit Judges. J. Furutani of Pasadena, CA, for the appellant; J. Tao of Washington, DC, for the appellee. ((Download the full text of this decision at www.ce9.uscourts.gov/)

4) TRADEMARK INFRINGEMENT: Jada Toys v. Mattel, 05-55627 (9th Cir. Aug. 2, 2007). Mattel appealed a grant of summary judgment in favor of Jada Toys on Mattel's federal and state trademark infringement counterclaims. It also challenged the district court's entry of summary judgment in favor of Jada as to its dilution and copyright claims. The USCA held that because the district court erred in its application of the relevant infringement test, the entry of summary judgment for Jada as to those claims had to be reversed. It further held that genuine issues of material fact existed as to Mattel's copyright dilution claims and, thus, the district courts entry of summary judgment as to those claims in favor of Jada also had to be reversed. Pregerson and Rawlinson, Circuit Judges, and Sandoval (author), District Judge. A. Fox of Los Angeles, CA, for Jada Toys; J. Pietrini of Los Angeles, CA, for Mattel. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) TRADEMARKS: Grocery Outlet, Inc. v. Albertson's Inc., 06-16380 (9th Cir. Aug. 9, 2007). Grocery Outlet appealed a prelimi-nary injunction granted in favor of Albertson's, a competitor in the retail grocery industry. The district court concluded that Albertson's was the legal owner of the LUCKY mark for retail grocery services and products and rejected Grocery's claim that Albertson's had abandoned the LUCKY mark through its publicly advertised announcement that LUCKY stores were converted to Albertson's stores after a company merger in late 1999. Grocery Outlet did not dispute the district court's finding that Albertson's was the legal owner of various federal and state trademark registrations of the LUCKY mark associated with retail grocery services and products. Nor did it dispute that Grocery Outlet use of the LUCKY mark for retail grocery services was likely to cause consumer confusion. The district court's conclusion that Albertson's was likely to succeed on the trademark infringement claim thus turned on whether Grocery Outlet was likely to prove its abandonment defense. The USCA held that the district court did not abuse its discretion in concluding that Albertson's demonstrated a strong likelihood of prevailing on the merits and the possibility of irreparable injury in the absence of a preliminary injunction. Nor did it abuse its discretion in concluding that Grocery did not establish its defense of abandonment, where Albertson's offered sufficient evidence of its intent to resume use of the LUCKY mark within the reasonably foreseeable future during the short period of alleged non-use. Concurring, Judge Wallace wrote separately on the burden-of-proof issue. In his view, meeting a strict burden requires proof by clear and convincing evidence. Judge McKeown also concurred and wrote separately to express her view on a question she found unanswered by the Ninth Circuit. Although the Circuit has held that "abandonment of a trademark, being in the nature of forfeiture, must be strictly proved," and that because a finding of insufficient control [of a trade-name] essentially works a forfeiture, a person who asserts insufficient control must meet a high burden of poof," but, she added that the Circuit has not elaborated on the meaning of "strict proof" or "high burden." Moreover, in her view, the language of 15 USC Sec. 1127 did not support an elevated standard of "clear and convincing," and did not impose a burden beyond the traditional preponderance of the evidence standard applicable in civil matters. Wallace (concurring), D.W. Nelson, and McKeown (concurring), Circuit Judges. Per Curiam. P. Craigie of San Francisco, CA, for the plaintiff-appellant; M. Williams of San Francisco, CA, for the defendants-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

6) ANTITRUST / ATTORNEYS' FEES / RULE 7 BONDS: Azizian v. Federated Department Stores, Inc., 05-15847 (9th Cir. Aug. 23 2007). This appeal arose from a class member / objector's challenge to the district court's final approval of a settlement of the antitrust claims of a certified nationwide class of consumers of department store cosmetics. Two issues were presented: First, as a matter of first impression, whether, or under what circumstances, appellate attorneys' fees are "costs on appeal" that a district court may require an appellate to secure in a bond order under Fed. R. Appellate Proc. 7. The USCA concluded that a district court may require an appellant to secure appellate attorneys' fees in a Rule 7 bond, but only if an applicable fee-shifting statute includes them in its definition of recoverable costs, and only if the appellee is eligible to recover such fees. The fee-shifting provision in Sec. 4 of the Clayton Act includes attorneys' fees in its definition of costs recoverable by a prevailing plaintiff. However, this provision does not authorize taxing attorneys' fees against a class member / objector challenging a settlement in an antitrust suit. The USCA thus held that the district court erred by requiring security in the Rule 7 bond for attorneys' fees as costs taxable under Clayton Act Sec. 4. It further concluded that a district court may not include in a Rule 7 bond appellate attorneys' fees that might be awarded by the court of appeals if that court hold that the appeal is frivolous under Fed. R. Appellate Proc. 38. The second issue on appeal was whether the appeal on the merits should be dismissed for failure to post the bond. In the circumstances of this case, the USCA held that it should not. In a separate unpublished memorandum disposition, the USCA reached the merits of the appeal and affirmed the district court's approval of the settlement. Hug, Brunetti, and W. Fletcher (author), Circuit Judges. W. Abbott of San Francisco, CA, for the appellant; J. Allured of San Francisco, CA, for the plaintiffs-appellees; T. Garland, G. Nierlich, J. Fousekis, and G. Farnham of San Francisco, CA, and L. Gangnes of Seattle, WA, for the defendants-appellees; A. Kopp of Oakland, CA, for the intervenors-appellants.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Engine Mfg. Assoc. v. South Coast Air Quality Maintenance District, 05-55654 (9th Cir. Aug. 20, 2007). South Coast Air Quality Management District, a political subdivision of California, is responsible for air pollution control in the South Coast Air Basin, an area comprising the City of Los Angeles and portions of surrounding counties. In 2000, the District enacted six "Fleet Rules" requiring operators of vehicle fleets (such a street sweepers, garbage trucks and airport shuttles) to use vehicles meeting specified emissions standards or containing specified alternative-fuel engines when adding to their fleets. At issue on remand from the Supreme Court was whether the Fleet Rules were preempted by the Clean Air Act. The USCA affirmed the district court's holding that, under the market participant doctrine, the Clean Air Act did not preempt provisions of the Fleet Rules directing state and local government entitles' purchasing procuring, leasing, and contract decisions. It vacated the district court's dismissal of the appellants' claims with respect to the Fleet Rules' other provisions. It also granted the District's request for judicial notice and remanded for further proceedings. Silverman, W. Fletcher (author), and Clifton, Circuit Judges. T. French of Chicago, IL, for the appellants; F. Layton of San Francisco for the appellees; J. Masters of Santa Monica, CA, for the intervenors.(Download the full text of this decision at www.ce9.uscourts.gov/) )

8) ENVIRONMENTAL LAW: The Access Fund v. U.S. Dept. of Agriculture, 05-15585 (9th Cir. Aug. 27, 2007). Cave Rock is a culturally, historically, and archaeologically significant site. It is a sacred site for Washoe Native Americans, a people who have lived in the Lake Tahoe area for some 1500 years. Since the late 1980s, it also has been a popular site for rock climbers. Because it is located within a National Forest, the Forest Service is authorized to develop management plans to coordinate the multiple use of the land to prevent harm to natural and cultural resources. After considering public comment, including comment from both the Washoe and members of the climbing community, the Service issued a Final Environmental Impact Statement. Its proposal sought "to protect the Cave Rock heritage resource and regulate uses there in a manner that … preserves the historic and cultural characteristics that make the property eligible for listing on the National Register." Following an administrative appeal challenging its prohibition on rock climbing, the Service's decision was affirmed. The Access Fund sued, asserting that the Service's ban on rock climbing violated the Establishment Clause, and was arbitrary and capricious under the Administrative Procedure Act (APA). On cross-motions for summary, the district court entered judgment for the government. Citing Lemon v. Kurtzman, 403 US 602 (1971), it held that the Service had not violated the Establishment Clause and that its decision to ban climbing was not arbitrary and capricious. The USCA affirmed, concluding, as in Cholla Ready Mix, Inc. v. Civish, that the Establishment Clause does not bar the government from protecting an historically and culturally important site simply because the site's importance derives at least in part from its sacredness to certain groups." 382 F.3d 969, 997 (9th Cir. 2004). The USCA was also not persuaded by the claim that the Service's decision to discriminate between climbers and other recreational groups was arbitrary and capricious in violation of the APA. But the USCA thought that the Access Fund missed the point. The value of Cave Rock was not simply geological; it was also cultural and historical and, as documented, rock climbing harms the physical (not necessarily geological) integrity of the rock. The Service's decision to ban climbing, adopted after "deliberate and thoughtful analysis and based on non-arbitrary historical considerations," did not violate the APA. Judge Wallace concurred in the result, but wrote separately because he did not believe that the Lemon test should be applied in analyzing the claim under the Establishment Clause. Instead, he would follow Van Orden v. Perry, 545 US 677 (2005). Wallace (concurring), Cudahy, and McKeown (author), Circuit Judges. L. Gustafson of Dallas, TX, for the appellant; S. Swingle of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) ENVIRONMENTAL LAW: Natural Resources Defense Council v. Winter, 07-56157 (9th Cir. Aug. 31, 2007). The Navy uses Medium Frequency Active (MFA) sonar which bounces a loud noise off the hulls of submarines to detect their presence. That noise may be harmful to whales and other marine mammals. In an earlier round of litigation, the district court approved a settlement allowing Navy sonar training to proceed, but required mitigation measures. Those measures included precautions such as requiring sailors to be on deck looking for whales and reducing the decibel level when whales are present. In this round, the Navy proposed to use MFA sonar in training exercises off Southern California without mitigating measures. The record did not show why the Navy did not propose to use the earlier mitigation measures. The district court issued a preliminary injunction under the National Environmental Policy Act and the Coastal Zone Management Act and prohibited all use of MFA sonar off Southern California between 2007 and 2009. It did not tailor its injunction in any way, such as by requiring the mitigation measures it had found sufficient before, and it offered no reason why the training could not proceed with mitigation measures. The USCA granted a stay pending appeal of the preliminary injunction. Judge Smith dissented in part. He thought the district court did not abuse its discretion when it issued the preliminary injunction. The Navy had not shown a probability of success on the merits had had not raised a serious question about the merits. In weighing the possibility of irreparable injury, balancing hardships, and determining where the public interest lay, the district court considered and weighed the national security and public interest issues presented by this case. Until recently, the Navy employed some environmental mitigation measures it now rejected in the name of national security. It also could continue training its personnel in the use of MFA sonar technology pending the outcome of the merits of this case by conducting MFA sonar exercises outside the Southern California range. In fact, the district court received evidence that the Navy was testing MFA sonar technology "all over the world all the time." Kleinfeld (author), Callahan, and Smith (dissenting), Circuit Judges. K. Kovacs of Washington, DC, for the appellants; R. Kendal of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) PUBLIC LIABILITY / PRICE-ANDERSON ACT: In re Hanford Nuclear Reservation Litigation, 05-35648 (9th Cir. Aug. 14, 2007). The origins of this case trace back more than 60 years to the height of World War II when the federal government solicited E.I. DuPont de Nemours & Company, General Electric, UNC Nuclear Industries, Atlantic Richfield, and Rockwell International (collectively "appellants") to operate the Hanford Nuclear Weapons Reservation ("Hanford") in southeastern Washington. Hanford was a plutonium-production facility that helped make the atomic bomb dropped on Nagasaki in WWII. A Hanford byproduct was radioiodine emitted into the surrounding area. The plaintiffs are some 2,000 residents who claim that these emissions, known as I-131, have caused various cancers and other life-threatening diseases. The first group of plaintiffs sued in 1990 under the Price-Anderson Act ("PAA") which governs nuclear accidents. They claimed they were entitled to damages for injuries arising from a nuclear incident pursuant to 42 USC Sec. 2210. After nearly 20 years of litigation, which included two appeals to the Ninth Circuit, the parties in 2005 agreed to a bellwether trial. The trial was designed to produce a verdict that would highlight the strengths and weaknesses of the parties' respective cases and thus focused on six representative plaintiffs. The purpose of the trial was to promote settlement and bring long-overdue resolution to this litigation. On the current appeal, a threshold issue was whether the defendants could obtain complete immunity under the common law governing contractor defense, because they were operating Hanford at the request of the federal government. The USCA held that this defense is inapplicable as a matter of law because Congress enacted the PAA before the courts recognized the government contractor defense, and the PAA provides a comprehensive liability scheme that precludes the defendants' reliance on such a defense. In the alternative, the defendants argued that even if they are not immune, they are not strictly liable for I-131 emissions, because the amounts of the emissions were within federally-authorized levels; the plutonium-production process was not an abnormally dangerous activity that would create strict liability; and even if it were, the defendants qualify for the "public duty" exception to strict liability. The district court held that none of the defendants contentions were sufficient to relieve them of strict li-ability for the injuries they caused. The USCA agreed. It held that under Washington law, the district court properly instructed the jury that to impose liability, it had to find Hanford was the "but for" cause of the plaintiffs' diseases and not just a contributing cause under the more lenient "substantial factor" test. The court also made a host of evidentiary rulings and held that three of these rulings constitute reversible error with respect to three of the bellwether plaintiffs. The USCA also held that any Hanford plaintiffs who filed independent suits pending class certification lost the benefits of class action tolling, thus potentially rendering their suits untimely. Because the record was incomplete as to the date necessary to measure the appropriate tolling period for various plaintiffs, the USCA remanded the statute of limitations issues to the district court for further proceedings. Finally, the USCA held that the district court properly dismissed any medical monitoring claims as not cognizable under the PAA. This ruling, the USCA found, was consistent with Berg v. E.I. DuPont de Nemours & Company, 293 F.3d 1127 (9th Cir. 2002). Schroeder (author), Goodwin, and Hawkins, Circuit Judges. D. Johnson of Seattle, WA, for the plaintiffs; C. Landau of Washington, DC, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

11) WHISTLEBLOWER PROTECTION PROGRAM: Williams v. United Airlines, 05-17072 (9th Cir. Aug. 31, 2007). Williams appealed the district court's dismissal of his complaint alleging violations of the Federal Airline Deregulations Act's Whistleblower Protection Program (WPP), 49 USC Sec. 42121, and related state law claims. At issue was whether an aggrieved employee could bring a suit in federal district court to allege violations of the WPP. The USCA held that the WPP does not create such a right of action and affirmed the district court's dismissal of Williams's action on the basis that the district court lacked subject matter jurisdiction. Siler, McKeown (author), and Bea, Circuit Judges. A. Williams pro se; M. Mankes of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) LANDIS STAYS / ARBITRATION: Dependable Highway Express v. Navigators Insurance Company, 05-56346 (9th Cir. Aug. 22, 2007). In this diversity action, Dependable Highway Express appealed a district court order staying its domestic contract dispute against Navigators Insurance Company pending resolution of arbitration proceedings in England. The USCA held that the district court's indefinite Landis stay was an abused its discretion. See Landis v. North American Co., 299 US 248 (1936). Upholding the stay under the doctrine of international comity also would be inappropriate at this stage, given the limited record. The USCA remanded so that the district court could develop the record and determine whether the parties agreed to arbitrate disputes arising from the insurance contact. It instructed that if there were contested issue of material fact on that issue, the district court might consider conducting a bifurcated trial and proceed to the merits only if the fact-finder determines that there is no arbitration clause in the contract. Conversely, if the evidence shows the existence of the arbitration clause, the district court is free to issue another stay as warranted under principles of international comity or the Federal Arbitration Act. Reinhardt and Tallman (author), Circuit Judges, and Wilken, District Judge. D. Woolley of Los Angeles, CA, for the appellant; A. Leonard of Santa Monica, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) CONTRACTS / ARBITRATION: Shroyer v. New Cingular Wireless Services, 06-55964 (9th Cir. Aug. 17, 2007). At issue here was whether a class arbitration waiver in New Cingular Wireless Service's standard contract for cellular phone services was un-conscionable under California law, and whether the Federal Arbitration Act preempted a holding that the waiver is unenforceable. The USCA held that the waiver is unconscionable under California law, and that refusing to enforce such a provision, as California courts would, is not expressly or impliedly preempted by the Federal Arbitration Act. Due to the non-severability clause, under California law, Cingular's entire arbitration clause was void by its own terms. The USCA thus reversed the district court's order compelling arbitration and remanded for the district court to consider Shroyer's class action lawsuit. Judge Rymer concurred in the result as she thought it followed from the decisions in Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003), Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003), and Nagrampa v. MailCoups, 469 F.3d 1257 (9th Cir. 2006) (en banc), as well as the California Supreme Court's decision in Discover Bank v. Super. Ct. of L.A., 36 Cal. 4th 148 (2005). D.W. Nelson, Reinhardt (author), and Rymer (concurring), Circuit Judges. W. Weinstein of New York, NY, for the appellant; D. Falk of Palo Alto, CA, for appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) INTERSTATE COMMERCE: DHX, Inc. v. Surface Transportation Bd. 05-74592 (9th Cir. Aug. 30, 2007). DHX, a freight forwarder, sought review of a Surface Transportation Board (STB) decision denying its complaint challenging the reasonableness of certain rates and practices of Matson and Horizon, two water carriers operating in the non-contiguous domestic trade between Hawaii and ports in the continental United States. The USCA denied the petition for review. This challenge to the STB's decision on rates of water carriers was not within the narrow category of cases in which the USCA is empowered to override the agency's knowledgeable exercise of its authority over the reasonableness of rates and related practices in a regulated industry. The USCA held that the STB's decisions denying DHX's complaint challenging the reasonableness of certain rates and practices of Matson and Horizon were not arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence. The USCA also concluded that the STB's decisions were in accordance with law. Thomas, Fisher, and Gould (author), Circuit Judges. R. Rude of Falls Church, VA, for the petitioner; C. Keats of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) NURSING HOMES: Resident Council of Washington, v. Leavitt, 05-36065 (9th Cir. Aug. 31, 2007). Resident Councils of Washington, an organization consisting primarily of nursing and boarding home residents and their families, and the Washington State Long-Term Care Ombudsman Program, representing Washington's long-term care facility residents, appealed the adverse grant of summary judgment in their challenge to the Secretary of Health and Human Services' regulations authorizing states to allow the use of paid feeding assistants to feed nursing home residents who do not have complicated feeding problems. They argued that the regulations violated the Nursing Home Reform Law by permitting "nursing or nursing-related services" to be performed by individuals not authorized by the statute. They also argued that the regulations were not entitled to deference as they were contrary to Congress' express intent and, alternatively, that the regulations were not based on a permissible construction of the Reform Law. The USCA affirmed. Congress had not addressed the question directly insofar as the Reform Law neither defined "nursing or nursing-related services," nor specifically states that all feeding tasks (or hands-on care) be performed by certified nurse aides. Neither can such an intent be gleaned from the legislative history or the Reform Law's general purpose or structure. The plaintiffs were unable to show that the Secretary's interpretation of the phrase to exclude the feeding of nursing home residents without complicated feeding problems would frustrate congressional intent or be inconsistent with the Reform Law. The Secretary's permissible construction of the statue was thus entitled to deference. Hawkins (author) and Wardlaw, Circuit Judges, and Pollak, District Judge. E. Carlson of Los Angeles, CA, for the appellants; J. Waldman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) PREGNANCY DISCRIMINATION / DISABILITY LEAVE: Hulteen v. AT&T Corp., 04-16087 (9th Cir. Aug. 17, 2007). This appeal presented an issue decided on virtually identical facts in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992), which held that Pacific Bell violated Title VII in calculating retirement benefits under the effective date of the Pregnancy Discrimination Act of 1978 ("PDA"), 42 USC Sec. 2000e(k), when it gave service credit in those calculations for all pre-PDA temporary disability leave taken by employees, except leave by reason of pregnancy. In the instant case, a three-judge panel, in a now-withdrawn opinion, held that AT&T, successor in interest to Pacific Bell and Pacific Telephone and Telegraph, did not violate Title VII by engaging in similar conduct. The panel reasoned that Pallas no longer controlled as it was inconsistent with intervening Supreme Court authority governing retroactivity principles. Concluding that Pallas is not "clearly irreconcilable" with intervening authority, the USCA sitting en banc, affirmed the district court's application of Pallas to the undisputed facts presented here and its award of summary judgment against AT&T. It also held that Pallas' conclusion that calculation of service credit excluding time spent on pregnancy leave violates Title VII is correct. Schroeder, Reinhardt, O'Scannlain (dissenting), Rymer, Hawkins, Graber, McKeown, Wardlaw (author), W. Fletcher, Fisher, Gould, Paez, Berzon, and Bybee, Circuit Judges, and Wilken, District Judge. J. Guerra of Washington, DC, for the appellant; H. Hewitt of Oakland, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) VEXATIOUS ADA LITIGATION: Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir. Aug. 31, 2007). Molski, who is paralyzed from the chest down, needs a wheelchair to get around. He has filed some 400 lawsuits in the federal courts in California. When he was unable to get his wheelchair in a position that would give him access to a toilet inside a restaurant in Solvang, California, he filed a suit in federal district court claiming that the restroom door "caused trauma" to his hand and that the restaurant contained accessibility barriers "too numerous to list." Two orders issued by the district court were at issue. The first declared Molski a vexatious litigant and ordered him to obtain leave of the court before filing any claims under Title III of the Americans With Disabilities Act (ADA) in the U.S. District Court for the Central District of California. The second order sanctioned the law firm representing Molski by requiring it to obtain leave of the court before filing any claims under Title III of the ADA in the Central District of California. The USCA dismissed two of the defendants-appellees from this appeal for lack of jurisdiction. As to the remaining parties, it held that the district court acted within its discretion in entering the two pre-filing order. Farris and Gould, Circuit Judges, and Duffy, District Judge. Per Curiam. T. Frankovich of San Francisco, CA, for the plaintiffs-appellants; R. Appert of San Gabriel, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) HEALTH RECORDS: Webb v. Smart Document Solutions, 05-56282 (9th Cir. Aug. 27, 2007). Regulations promulgated by the Department of Health and Human Services to implement the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provide for an individual's broad access to his own health records. Under HIPAA, an individual has the right to obtain copies of his medical records for a reasonable, cost-based fee, while third parties who seek the same records may be charged at higher rates. Webb's lawyers requested Webb's records on Webb's behalf from his treating hospital. The hospital passed the request on the Smart Document Systems, which charge the lawyers at a higher rate. Because the lawyers bill their clients for the costs of obtaining the records, they sued Smart Document Solutions for unfair competition under California Business and Professions Code Sec. 17200, asserting that the lower, cost-based fee should apply. In a matter of first impressions for the federal courts, the USCA held that the regulations require the reduced rate only when the individual himself requests the records. It thus upheld the district court's dismissal of the plaintiffs' case for failure to state a claim for relief. Kleinfeld and Paez (author), Circuit Judges, and Hart, District Judge. B. Litt of Los Angeles, CA, for the plaintiffs-appellants; M. Bern of San Francisco, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

19) DISABILITY BENEFITS / JUDGMENT LIENS: Paul Revere Ins. Group v. DeGeorge, 05-56642 (9th Cir. Aug. 30, 2007). DeGeorge recovered a civil judgment award for unpaid disability income. To help pay a previous restitution order that DeGeorge had not satisfied, the United States used California state law procedure to file, and then execute in federal court on, a judgment lien against this award. Although DeGeorge's disability income would have been explicitly exempt from the judgment lien under California law, the government argued that federal , not state, property exemptions should apply in this case. Accepting the government's argument and position on this, the federal district court ordered the government's judgment lien enforced. DeGeorge appealed that order. The USCA concluded that because the government chose to use California execution law, and the federal law did not preempt this state law on execution, the federal property exemptions do not override California's property exemptions. Friedmam, Kozinski, and Gould (author), Circuit Judges. R. DeGeorge in pro per; AUSA B. Whittlesey of Los Angeles, CA, for the appellee (Download the full text of this decision at www.ce9.uscourts.gov/)

20) DISABILITY INSURANCE: Merrick v. Paul Revere Life Ins., 05-16380 (9th Cir. Aug. 31, 2007). The insurers appealed the district court's jury verdict awarding $1.65 million in compensatory and $10 million in punitive damages to Merrick for breach of contract and of the duty of good faith and fair dealing, stemming from the insurers' denial of Merrick's disability insurance claim. At issue were the constitutional limits upon the use of evidence of injury inflicted upon non-parties as discussed in Philip Morris USA v. Williams, 127 S.Ct 1057, 1063 (2007). The USCA affirmed in part, reversed in part, and remanded for a new trial on punitive damages due to the district court's failure to give an adequate limiting jury instruction under Williams. Hall (author), O'Scannlain, and Ikuta, Circuit Judges. E. Tager of Washington, DC, for the appellants; T. Hudson of Phoenix, AZ, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) LABOR LAW: District Council No. 16 of the Intl. Union of Painters v. B&B Glass, Inc., 05-16258 (9th Cir. Aug. 16, 2007). This labor litigation involves the interplay between the use of standard "work preservation" and "out-of-area" clauses in collective bar-gaining agreements and the strong federal policy favoring arbitration. The clauses herein at issue appear in a collective bargaining agreement signed by a Texas corporation, but a different company in California performed the challenged work. The California union seeking arbitration had signed no agreement with the company doing the work. The USCA concluded, as did the district court, that because the plaintiff union has no agreement with the employer that it sought to take to arbitration, and it could not show that the employer against whom it filed its claim controlled the company doing the work in California, the employer was entitled to judgment. The USCA thus affirmed. Schroeder (author), Canby, and McKeown, Circuit Judges. D. Rosenfeld of Alameda, CA, for the appellant; C. Birenbuam of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

22) LABOR LAW: Nigg U.S. Postal Service, 05-55650 (9th Cir. Aug. 27, 2007). This appeal involved the relationship between the Fair Labor Standards Act of 1938 (FLSA) and a 1996 statute related to compensation for postal inspectors, 39 USC Sec. 1003(c). Nigg, a U.S. Postal Service inspector, and Lewis, a retired inspector, sued the Service, alleging that inspectors are entitled to overtime pay under the FLSA. The Service does not pay inspectors FLSA overtime, instead claiming that their pay is governed by Sec. 1003(c). The district court granted the Service summary judgment, reasoning that Sec. 1003(c), which requires the Service to pay the inspectors on a basis of "comparability" to other similarly tasked executive branch employees, permits the Service to provide "availability pay" rather than FLSA overtime. The USCA reversed on the overtime pay claim and remanded for a determination of whether inspectors are entitled to FLSA overtime or are administratively exempt. B. Fletcher and McKeown (author), Circuit Judges, and Whyte, District Judge. D. Osborn of New York, NY, for the appellant; AUSA L. Weidman of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) LABOR LAW: McElmurry v. U.S. Bank National Association, 05-36047 (9th Cir. Aug. 8, 2007). McElmurry and Mrazek brought this interlocutory appeal from a district court order denying their motion to issue a notice of a collective action brought under Sec. 16(b) of the Fair Labor Standards Act. The USCA held that the collateral order exception to the final judgment rule was inapplicable here because the district court's order was not "effectively unreviewable on appeal from a final judgment. The USCA thus dismissed the interlocutory appeal for lack of jurisdiction. It also denied appellants' petition for a writ of mandamus. D.W. Nelson, Kleinfeld, and Bybee (author), Circuit Judges. J. Koch of Portland, OR, for the petitioner; T. Volpert of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) AGE DISCRIMINATION IN EMPLOYMENT: Forester v. Chertoff, 05-16517 (9th Cir. Aug. 29, 2007). Chavez, Teran, and Evans alleged under Title VII, 42 USC Sec. 2000e, and the Age Discrimination in Employment Act (ADEA) that their employer, the U.S. Boarder Patrol, failed to promote them due to their age. The district court granted the defendant's motion for summary judgment, concluding that it lacked subject matter jurisdiction because the plaintiffs did not wait 30 days after filing a notice of intent to sue with the Equal Employment Opportunity Commission (EEOC) before filing suit. The district court also declined to provide equitable relief from the timing requirement. The plaintiffs appealed, alleging that the district court had jurisdiction and erred in not granting equitable relief. The USCA vacated the district court's order granting summary judgment and remanded. It granted the plaintiffs equitable relief from filing their complaint prematurely because it determined that the defendant was not prejudiced by the premature filing and relief was supported by the interests of justice. The USCA granted equitable relief, rather than remand the matter to the district court because of the passage of time since the filing of the complaint and the lack of prejudice to the defendant. Dissenting, Judge Bea thought that the plaintiffs, and now the majority, had taken the position: "Don't take things too literally; no harm, no foul." The 30-day notice time is a clear statutory requirement which determines a complainant's ability to seek relief in federal court. Judge Bea also disagreed with the majority's conclusion that because the defendants were not prejudiced, by the early filing in contravention of 29 USC Sec. 633a(d), principles of equitable estoppel should be applied to allow the appellants' case to proceed. No Factor justifying tolling existed. Judge Bea thought that the majority's application of equitable principles in the absence of such a factor effectively sounded the death kneel to Sec. 633a(d)'s 30-day waiting requirement. D.W. Nelson, Callahan (author), and Bea (dissenting), Circuit Judges. P. Bays of Litchfield Park, AZ, for the appellants; AUSA R. Gordon of Tucson, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) ZONING: The League of Residential Neighborhood Advocates v. Los Angeles, 06-56211 (9th Cir. Aug. 21, 2007). An Orthodox Jewish congregation applied for a conditional use permit to operate a synagogue in an area zoned solely for residential use. When neighbors objected, the City denied the application. The Congregation filed a federal lawsuit alleging that the denial of the permit vio-lated its federal and state constitutional rights. All of these claims were later dismissed. However, while the lawsuit was pending, Congress passed the Religious Land Use and Institutionalized Persons Act. Concerned about the force of this new law and seeking to avoid further litigation, the City entered into a settlement agreement that allowed the Congregation to operate the synagogue under certain conditions. Neighbors brought the instant action, alleging that the settlement agreement was void because, in settling the lawsuit as it did, the City effectively granted the Congregation a conditional use permit without providing notice and a hearing to the affected community. This, they argued, violated state law and their right to due process. The USCA agreed with the neighbors on their state law claim. The pendency of litigation is not a blank check for a city when it comes to the rights of its residents. In the settlement agreement, the City granted a conditional use right, without first giving affected persons notice and an opportunity to be heard, thereby violating state law. A settlement agreement cannot override state law absent a specific ruling that federal law has been or will be violated. Since no such finding was made here, the USCA concluded that the settlement agreement was invalid and unenforceable. Silverman (author), W. Fletcher, and Clifton, Circuit Judges. L Werlin of Los Angeles, CA, for the appellants; S. Azad of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) TORTS: Navarette v. United States, 05-16915 (9th Cir. Aug. 29, 2007) Navarette was severely injured when he fell off a cliff at a campground operated by the Army Corps of Engineers near Lake Sonoma in northern California. Alleging that the campground staff had been negligent in failing to undertake safety precautions regarding a "use path" it had developed which led directly from Navarette's campsite to the cliff's edge. He sued the government for damages under the Federal Tort Claims Act (FTCA). The district court granted summary judgment for the government, finding that the discretionary function exception barred jurisdiction under the FTCA. The USCA held that the discretionary function exception did not apply and reversed. The Army Corps had already decided that drop-offs were a "special hazard," or-in the Safety Plan's words-"a dangerous terrain condition." The USCA thus held that the Army Corps' duty to mark or mend the path leading to the cliff was "specific and mandatory," and did not come within the discretionary exception. Dissenting, Judge Rymer said she read the Safety Plan's "dangerous terrain" provision differently from the majority. She thought the Plan referred to drop-offs as an example of the kind of terrain condition that may be dangerous, not as a declaration that all drop-offs are dangerous. So construed, this part of the Plan involves a judgment as to whether a particular drop-off (or other condition of nature) is actually dangerous. Hug, Rymer (dissenting), and Fisher (author), Circuit Judges. A. Schwartz of Emerywille, CA, for the appellant; AUSA O. Martikan of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) PRODUCT LIABILITY: White v. Ford Motor Co., 05-15655 (9th Cir. Aug. 30, 2007). This product liability case arose from the death of the three-year-old son of Ginny and Jimmie White, who was killed when Jimmie Ford pickup truck rolled over him in the family's driveway. The case came before the USCA first following a remand for a new trial on punitive damages. Ford appealed the district court's decision that a second jury's award of $52 million in punitive damages on remand did not violate the Due Process Clause of the Fourteenth Amendment. In addition, Ford argued that during the retrial, the district court committed multiple reversible errors in its pretrial and other jury instructions and evidentiary rulings. In light of the intervening decision in Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007), the USCA reversed and remanded for a new trial on punitive damages so that the district court could provide a proper "harm to non-parties" jury instruction, and to instruct the jury that the Whites received $2,305,435 in compensatory damages, that Ford's brake defect did not proximately cause the accident and that the Whites were found to be 40% responsible for the accident. The USCA did not address whether the jury's $52 million award was constitutionally excessive. Kozinski and Fisher (author), Circuit Judges, and Block, District Judge. M. Wheeler of Denver, CO, for the appellant; S. Specter of Philadelphia, PA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) CATTLE IMPORTS / "MAD COW" DISEASE: Ranchers Cattlemen Action Legal Fund v. USDA, 06-35512 (9th Cir. Aug. 28, 2007). This case involves a challenge to the government's regulation of Canadian cattle imports in the wake of the "mad cow dis-ease" scare of the late 1990s. The Ranchers Cattlemen Action Legal Fund United Stockgrowers of America, argued that the U.S. De-partment of Agriculture (USDA) issued an arbitrary and capricious rule relaxing a ban on Canadian beef and cattle imports. The district court granted the USDA summary judgment. The USCA affirmed. It concluded that the agency considered the relevant factors and articulated a rational connection between the facts found and its decision to designate Canada a minimal-risk country. The plaintiffs extra-record evidence failed to convince the USCA that the agency's review was unauthorized, incomplete, or otherwise improper. Hall (author) and Smith, Circuit Judges, and Duffy, District Judge. R. Frye of Washington, DC, for the appellant; J. Waldman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) CROP DISASTER ASSISTANCE: Aageson Grain & Cattle v. U.S. Dept. of Agriculture, 05-36172 (9th Cir. Aug. 31, 2007). The USDA appealed the district court's order remanding this case to the National Appeals Division (NAD) of the USDA to determine eligibility for an attorneys' fees and costs award under the Equal Access of Justice Act (EAJA). The farmers prevailed on appeals before the NAD challenging their local Farm Service Agency's denials of claims under the 2003 Noninsured Crop Disaster Assistance Program (NAP). They then applied for EAJA fees, which the NAD denied on the ground that EAJA did not apply to NAD proceedings. On the farmers petition for judicial review, the district court ruled that the EAJA applies to NAD proceedings and remanded. The USCA affirmed. The statutory scheme that creates and implements NAD satisfies all three procedural protections stated in Sec. 554 of the Administrative Procedure Act (APA). Adversarial proceedings before the NAD thus are "subject to" Sec. 554 and the EAJA ap-plies. Canby, Hall, and Callahan (author), Circuit Judges. J. Koppel of Washington, DC, for the appellant; B. Baumstark of Bismarck, ND for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) FIRST AMENDMENT: White v. Sparks, 05-15582 (9th Cir. Aug. 29, 2007). White is an artist who earns a living by setting up an easel on city sidewalks and parks and selling his paintings to by-passers. A painter of nature scenes, he believes his paintings convey the message that human beings are driving their spiritual brothers and sisters, the animals, into extinction. The City of Sparks, Nevada, prohibits the sale of merchandise in its parks and limits sales in the area known as Victorian Square to vendors having permits. White brought a facial challenge to Sparks' vendor-permitting scheme. The district court agreed with White for the most part. At issue on appeal was what protection the First Amendment extends to the sale by an artist of his paintings. The USCA held that an artist's sale of his original artwork constitutes speech protected under the First Amendment. B. Fletcher (author) and Clifton, Circuit Judges, and Shea, District Judge. T. Riley of Sparks, NV, for the appellant; T. Keyser-Cooper of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) CIVIL CONFINEMENT / QUALIFIED IMMUNITY: Hydrick v. Hunter, 03-56712 (9th Cir. Aug. 30, 2007). The plaintiffs represent a class of some 600 civilly committed persons and those awaiting commitment as Atascadero State Hospital pursuant to Cali-fornia's Sexually Violent Predators Act. They alleged that the conditions of their confinement violate their constitutional rights. They requested declaratory and injunctive relief, as well as monetary damages. The defendants moved to dismiss based largely on qualified immunity. When the district court denied the motion, the defendants appealed. The USCA affirmed the district court's decision to deny qualified immunity on the plaintiffs' first, second, seventh, eighth, ninth, and tenth causes of action. It reversed in part and held that the defendants have qualified immunity from suit on the plaintiffs' Ex Post Facto, Double Jeopardy, Procedural Due process, and Eighth Amendment clams. Judge Trott agreed with the majority that the plaintiffs could not seek damages in this lawsuit against state officials in their official capacities, and that they could not seek damages from the State either. But, on the record, and under the circumstances of this case, he thought that the state officials, as individuals, were entitled to qualified immunity against both suit and damages. Schroeder, Pregerson (author) and Trott (dissenting in part), Circuit Judges. DAG R. Murphy of Los Angeles, CA for the defendants-appellant; K. Davis of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION: Kalouma v. INS, 03-74488 (9th Cir. Aug. 28, 2007). Kalouma entered the United States in March 2001, was intercepted by the Border Patrol, identified himself as Sudanese, and was promptly charged with inadmissibility. At a hearing before an Immigration Judge (IJ) in 2001, he admitted the charged and applied for relief. He testified that he was a Christian who was persecuted by Muslims or Arabs-he used the terms interchangeably. In April 2002, the IJ denied relief. Kalouma petitioned for review of the Board of Immigration Appeals (BIA) summary affirmance of the IJ's denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture. Holding that the IJ committed an error of law that permeated his decision, the USCA reversed and remanded. After the IJ called Kalouma "a person of unknown identity, it became Kalouma's burden to prove who he was. After reviewing the testimony, the IJ held that "The Court is unsure of his identity." In the IJ's mind, Kalouma failed to meet what the IJ saw as a legal precondition to the asylum application. The IJ's doubt as to Kalouma's identity and the legal limbo he thus inhabited, permeated the IJ's decision. A man who identified himself in terms of his parents, birth date, birth place, tribe and religion and who testified knowledgeably about a variety of specific sites in Sudan, appeared to the IJ to be simply a stranger who had accidentally arrived at the border. The USCA rejected this conclusion and the legal error on which it was based. Dissenting, Judge Tallman noted that the IJ found Kalouma incredible and substantial evidence supported that determination. The record did not compel a reasonable fact-finder to conclude otherwise. He would deny Kalouma's petition for review based solely on the adverse credibility determination. The majority took no issue with that credibility determination and that should be the end of the petition. Noonan (author), Paez, and Tallman (dissenting), Circuit Judges. M. Teeter of Newport Beach, CA, for the petitioners; AUSA C. Federichi of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) IMMIGRATION: Ghahremani v. Gonzales, 04-71072 (9th Cir. Aug. 17, 2007). In this consolidated case, Ghahremani sought review of the BIA's separate denials of his motions to reconsider and reopen his immigration proceedings. After multiple hearings before the immigration judge, Ghahremani was found removable for having committed an aggravated felony and two crimes of moral turpitude arising out of separate schemes. Following an unsuccessful appeal to the BIA, Ghahremani filed a motion for reconsideration, which was denied. He then moved to reopen, alleging that his original counsel provided ineffective assistance. The BIA denied his motion as untimely. Ghahremani then petitioned for appellate review of the BIA's denials. The USCA denied his petition for review as to the motion to reconsider and granted his petition for review as to the motion to reopen. It held that Ghahremani waived his challenge to the BIA's denial of his motion to reconsider by failing to put forth any argument in support of his position. Moreover, because Ghahremani's appeal raised a mixed question of law and fact, the USCA retained jurisdiction under 8 USC Sec. 1252(a)(2)(D) to review the BIA's denial of his motion to reopen. It found that the BIA abused its discretion by denying Ghahremani's motion to reopen as untimely, despite his demonstrated due diligence in learning of the possible ineffectiveness of his second attorney for proceedings before the immigration judge. The USCA left to the BIA on remand to determine whatever merit there might be to Ghahremani's ineffective assistance claim. Pregerson, Silverman, and Tallman (author), Circuit Judges. E. Quinn of San Francisco, CA, for the petitioner; M. Haney of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) IMMIGRATION: Gomez v. INS, 06-70941 (9th Cir. Aug. 21, 2007). The Garcias, natives and citizens of Mexico, petitioned for review of the Board of Immigration Appeals' denial of their motion for leave to file a late brief and denial of their application for can-cellation of removal. They submitted declarations explaining that their brief was late due to the mail carrier's failure to deliver the notice of the briefing schedule to the correct address. Denying the motion, the BIA conclusorily said: "We find the reason state by the respondents insufficient for us to accept the untimely brief in our exercise of discretion." The USCA remanded. Although the BIA recognized its discretion to grant the motion, its order did not offer "some reasoned explanation" for denying the motion. The BIA's order was thus inadequate for the USCA to perform any meaningful appellate review. O'Scannlain, Hawkins, and Wardlaw, Circuit Judges. Per Curiam. S. Hill of Los Angeles, CA, for the petitioners; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

35) IMMIGRATION: Sembiring v. Gonzales, 04-74076 (9th Cir. Aug. 24, 2007). The petitioner, an Indonesian who feared persecution at home because of her Christian religion, applied for asylum in May 2003. She appeared in Immigration Court on August 5, 2003, the date originally scheduled for her hearing, only to find that she had been ordered removed in absentia six days earlier. The INS maintained that it sent to her by regular mail a notice that her hearing had been rescheduled to an earlier date. The petitioner maintained that she never received the notice. Revisions to the relevant notice provisions authorize the government to use regular first class mail to fulfill the requirements for "service by mail," where the original provision required the government to use certified mail. Here the government mailed the notice by regular first class mail, but the petitioner presented sufficient evidence in the Immigration Court to overcome the presumption of effective service, and thus to show that she had not receive notice. Moreover, her evidence was credible, corroborated, and wholly unrefuted by the government. Because the petitioner demonstrated that she did not receive service, it was an abuse of discretion for the IJ to refuse to reopen proceedings in order to rescind the in absentia removal order. The BIA affirmed. Now, more than four years later, the USCA evaluated a petition for review in which she sought a hearing on her application. The USCA granted the petition and remanded. Salta v. INS, 314 F.3d 1076 (9th Cir. 2002), established that the presumption of effective service that applies to a notice to appear sent, or purportedly sent, by regular mail is weaker than the "strong presumption" that applies to service or attempted service by certified mail. The petitioner presented sufficient evidence to overcome the presumption of effective service and thereby to show that she did not receive notice. The USCA remanded to the BIA with directions to remand to the IJ to grant the motion to reopen in order to rescind the in absentia removal order entered against her more. Silverman, W. Fletcher (author), and Clifton, Circuit Judges. R. Sembiring pro se; J. Paisner of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) IMMIGRATION: Mejia v. Gonzales, 04-74001 (9th Cir. Aug. 24, 2007). In 2002, the Attorney General promulgated a rule de-signed to guide Immigration Judges in deciding whether to grant waivers of inadmissibility to the United States based on certain criminal grounds. The rule provides that in cases where individuals have committed "violent or dangerous crimes," the AG will not exercise discretion to grant wavers under 8 USC Sec. 1182(h) unless the individual can show "exceptional and extremely unusual hardships." 8 CFR Sec. 212.7(d). At issue on appeal was Mejia's challenge to the application of this rule to his removal proceedings. The USCA held that adoption of Sec. 212.7(d) was a permissible exercise of the AG's authority and that the rule may be applied to convictions that became final before the effective date of the regulation. B. Fletcher and McKeown (author), Circuit Judges, and Whyte, District Judge. R. Godinez of Los Angeles, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) IMMIGRATION: Singh v. Gonzales, 05-16005 (9th Cir. Aug. 24, 2007). Singh, a native and citizen of India, brought three ineffective assistance of counsel (IAC) claims through a habeas petition filed with the district court pursuant to 28 USC Sec. 2241. Singh's habeas petition was filed after the enactment of the REAL ID Act. The district court dismissed the action for lack of subject matter jurisdiction on the ground that the REAL ID Act foreclosed Singh's habeas claims. The USCA affirmed in part, reversed in part, and remanded in part. Sections 1252(a)(5) and 1252(b)(9) do not preclude habeas review over Singh's second IAC claim. In light of this conclusion, the USCA declined to address the parties' dispute as to whether the REAL ID Act violates the Suspension Clause, and the due process and equal protection guarantees of the Fifth Amendment. See Jean v. Nelson, 472 US 846 (1985): "Prior to reaching any constitutional questions, federal courts must consider non-constitutional grounds for decision." Concurring, Judge Wallace agreed with the majority that Singh's claim against one lawyer was barred because he did not exhaust administrative remedies, but he would remand the res judicata issue to the district court. Under the compulsion of precedent, Judge Wallace said he had to agree with the majority's jurisdictional determination with respect to Singh's claim against a second lawyer. Wallace (concurring) D.W. Nelson, and McKeown (author), Circuit Judges. J. Bennett of El Cerrito, CA, for the petitioner; P. Keisler of Washington, DC, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) IMMIGRATION: Estrada-Espinoza v. Gonzales, 05-75850 (9th Cir. Aug. 16, 2007). At issue on this appeal was whether a violation of California Penal Code Sec. 261.5(c), a California statutory rape provision, constitutes "sexual abuse of a minor" under 8 USC Sec. 1101(a)(43)(A). Applying Afridi v. Gonzales, 442 F.3d 1212 (9th Cir. 2006), the USCA concluded that it does, and denied the petition for review. Judge Thomas concurred in the opinion because there was no principled distinction between the present case and Afridi. But he wrote separately to suggest that Afridi was incorrectly decided and should be reconsidered. Kleinfeld and Thomas (con-curring), Circuit Judges, and Leighton, District Judge. Per Curiam. S. Ahmad of Freemont, CA, for the petitioner; P. Keisler of Wash-ington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) IMMIGRATION: Gulla v. Gonzales, 04-70957 (9th Cir. Aug. 13, 2007). The Immigration Judge found Gulla credible and statu-torily eligible for asylum, but he denied his asylum application discretionary ground. He thought it improper to allow Gulla relief because: (1) he had traveled through three other countries before arriving in the United States; (2) he was in good health and not of tender age; and (3) he had used fraudulent travel documents to reach the United States. The IJ granted withholding removal and did not reach the Convention Against Torture claim. The BIA's decision summarily affirming the IJ's decision. The USCA found that the IJ abused his discretion and granted the petition. Judge Fernandez dissented. He could not say that the BIA abused its discretion and could not say that it acted in a manner that was arbitrary, capricious or contrary to law when it denied asylum. As Judge Fernandez saw it, the majority's decision to the contrary was another example of Circuit judges picking apart the opinions of the agency, while purporting to apply an abuse of discretion standard. Pregerson (author), Fernandez (dissenting), and Siler, Circuit Judges. D. Nelson of San Diego, CA, for the petitioners; K. DeAngelis of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

40) IMMIGRATION: Im v. Gonzales, 05-70027 (9th Cir. Aug. 13, 2007). In 1975 the Khmer Rouge seized power in Cambodia. The petitioner-then 22 years old and one year out of high school-was impressed into service as a forced laborer for the new regime, and his family was killed. Four years later, Vietnam invaded Cambodia, removing the Khmer Rough from power. Vietnamese troops arrested the petitioner in July 1979. No criminal charges were ever filed against him and the army installed him as a prison guard in PJ, a small prison in Phnom Penh housing between 35 and 70 prisoners, including a number of Khmer rouge. All of the guards were Cambodian and none belonged to the Communist party. At the top of the prison hierarchy was the prison chairman, followed by the vice-chairman and five guards. Two of the guards, including the petitioner, worked in the administrative section. The three remaining guards worked in the political section. Im filed for asylum on March 6, 2001, identifying his wife as a derivative asylum beneficiary. On July 23, 2001, the INS issued NTA's as to Im and Ngin, finding that they were subject to removal under INA Sec. 237(a)(1)(B) because of their status as non-immigrant aliens who had remained in the country beyond their required departure date. At the removal hearing, IM and Ngin conceded that they were subject to removal. Im also renewed his application for asylum and withholding of removal, as well as for protection under the Convention Against Torture (CAT) He again listed Ngin as a derivative asylum applicant. The Immigration Judge (IJ) found Im and Ngin removable as charged, and denied Ngin's application for asylum and ordered her removed because he did not believe that she could receive derivative relief under CAT. The IJ informed Im that he was barred from re-ceiving asylum relief or the withholding of removal because he had worked as a prison guard, which the IJ believed rendered him a former persecutory. The IJ acknowledged, however, that he was "going to find all of [Im's testimony regarding the threats to his safety] completely believable and true," and that "there's no dispute that [the assassination attempt] happened." The IJ echoed this position in his written order, stating, "applicant presented testimony which was believable, consistent and sufficiently detailed, there-fore he was found to be credible." The IJ added "that [Im] has established by a preponderance of the evidence, that it is more likely than not he would be tortured, that is to say, subjected to extreme cruel abuse by the security forces … if he were returned to Cambodia." Because of the significant risk that Im would be tortured if returned to Cambodia, the IJ granted him a deferral of removal under CAT. The BIA adopted and affirmed the IJ's decision, dismissed the appeals by Im and the Department of Homeland Security, and denied Ngin's motion to remand. Im appealed. Because the IJ found that Im had established both past persecution and a well-founded fear of future persecution, the USCA granted the petition for review, vacated, and remanded so that the Attorney General could exercise his discretion as to whether to grant asylum. The USCA also noted that Ngin was eligible for asylum pursuant to the derivative status provision of INA Sec. 208(b)(3). The USCA thus granted the petition for review. B. Fletcher (author), Siler, and Hawkins, Circuit Judges. E. Enyinwa of San Francisco, CA, for the petitioner; M. Palau of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

41) IMMIGRATION / CHILD ASYLUM: Hernandez-Ortiz v. Gonzales, 04-71509 (9th Cir. Aug. 8, 2007). Hernandez-Ortiz and his brother, natives of Guatemala and of Mayan descent, petitioned for review of a BIA decision which affirmed without opinion a decision of an Immigration Judge (IJ) denying their requests for asylum and withholding of removal. In 1982, the Guatemalan army had come into their village, beat their father, and killed their older brother. The USCA held that the IJ erred as a matter of law. It granted the petition and remanded. It joining the Second, Sixth, and Seventh Circuits in affirming the legal rule that injuries to a family must be considered in an asylum case where the events that formed the basis of the past persecution claim were perceived when the petitioner was a child. While the IJ acknowledged the ages at which the brothers experienced the injuries to which they testified, she did not look at the events from their perspective, nor measure the degree of their injuries by their impact on children of there ages. She thus committed legal error. In addition, the USCA concluded that the IJ's credibility findings were not supported by substantial evidence. She did not take into consideration the ages of the brothers in 1982. The legal error infected her conclusion that the brothers failed to meet their burden of proof as to whether they were subjected to past persecution. Noonan (author), Bybee, and Smith, Circuit Judges. T. Pickles of San Francisco, CA, for the petitioner; B. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) IMMIGRATION: Hernandez de Anderson v. Gonzales, 05-74132 (9th Cir. Aug. 9, 2007). The petitioner sought review of the BIA's dismissal of her appeal from an order of removal. She maintained, first, that the BIA erred in holding that she failed to meet the requirements for termination of her removal proceedings under 8 CFR Sec. 1239.2(f). Second, she maintained that the BIA's holding that she was ineligible to apply for suspension of deportation under former Immigration and Nationality Act. Sec. 244(a)(2) was an impermissible retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The USCA agreed with the petitioner's second contention and granted her petition. Graber, W. Fletcher (author), and Tallman (dissenting in part), Circuit Judges. J. Ayala of Los Angeles, CA, for the petitioner; J. Grimes of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) IMMIGRATION: Vargas-Hernandez v. Gonzales, 04-73343 (9th Cir. Aug. 3, 2007). Vargas petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from the Immigration Judge's order of removal. The BIA rejected his attempt to remand his case so that he could apply for adjustment of status, and held that Vargas failed to make a heightened showing to justify discretionary relief under former Immigration and Nationality Act. Sec. 212(c). The BIA also found that the record did not show that the IJ was biased against Vargas to the extent that she denied him due process. The USCA dismissed the petition concerning the treatment of Vargas' juvenile conviction, and denied the petition regarding his due process claim. Vargas' prosecution and conviction in California as an adult precluded the IJ and the BIA from treating his conviction as a juvenile adjudication. As a result, his 1991 voluntary manslaughter conviction made him removable as an aggravated felon for having committed a crime of violence, and the USCA did not have jurisdiction to review that order of removal. In addition, because discretionary grants of adjustment of status and Sec. 212(c) relief involved the same equitable balancing, and the USCA upheld the denial of Sec. 212(c) relief, Vargas could not show prejudice from the denial of a continuance to pursue his adjustment of status application. Finally, although the IJ and Vargas' counsel had "exchanged words" and the IJ denied a request for recusal, the USCA review of the record show that the IJ did not exclude evidence, precluding testimony, or otherwise prevent Vargas from fully presenting his request for a Sec. 212(c) waiver, and her decision was not based on an improper bias against Vargas or his attorney. Hall and Callahan (author), Circuit Judges, and Robart, District Judge. L. Gordon of Los Angeles, CA, for the petitioner; J. Paisner of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

44) IMMIGRATION: Camins v. Gonzales, 05-70291 (9th Cir. Aug. 28, 2007). Prior to the passage of Sec. 301(a)(13) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a lawful permanent resident (LPR) who pled guilty to an offense making him "inadmissible" retained the right under Former Sec. 101(a)(13) of the Immigration and Nationality Act, as interpreted by Rosenberg v. Fleuti, 374 US 449 (1963), to make "innocent, casual, and brief" overseas trips without being classified as seeking "entry" upon return and thus bring exposed to a charge of being inadmissible. Two questions were presented: First whether IIRIRA Sec. 301(a)(13) abrogated the old INA Sec. 101(a)(13) and the Fleuti doctrine. If so, an LPR who has been convicted of, or who has admitted to, commission of an offense making him inadmissible cannot travel overseas, even for an innocent, casual and brief trip, without being exposed to a charge of inadmissibility upon returning to the United States. Second, if IIRIRA Sec. 301(a)(13) did abrogate the old INA Sec. 101(a)(13) and the Fleuti doctrine, the USCA must decide whether this provision may be applied retroactively to LPRs who acted in reasonable reliance on the old INA Sec. 101(a)(13), as interpreted by Fleuti. The USCA held that Sec. 301(a)(13) did abrogate the old Sec. 101(a)(13) and the Fleuti doctrine, but that the new law could not be applied retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRA's effective date. Hug and W. Fletcher (author), Circuit Judges, and Holland, District Judge. Z. Miller of San Francisco, CA, for the petitioner; A. Housman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) IMMIGRATION: Sandoval-Lua v. Gonzales, 05-77103 (9th Cir. Aug. 28, 2007). Lua sought review of a BIA decision affirming a final order of removal, seeking relief from conceded removability. The BIA affirmed the Immigration Judge's decision finding Lua removable on the basis of his conviction for a controlled substance offense, 8 USC Sec. 1227(a)(2)(B)(i), and denying his application for cancellation of removal. At issue was whether Lua carried his burden to show eligibility for cancellation of removal. 8 USC Sec. 1229b(a). More precisely, the issue was whether Lua had demonstrated that his prior state conviction under California Health & Safety Code Sec. 11379(a) was not an "aggravated felony" as defined in the Immigration and Nationality Act, 8 USC Sec. 1101(a)(43)(B). Applying the principles of Taylor v. USA, 495 US 575 (1990), the USCA first held that Sec. 11379(a) is categorically broader than the definition of aggravated felony in Sec. 1101(a)(43)(B). The USCA then held that the judicially noticeable documents in the administrative record satisfied Lau's burden of showing by a preponderance of the evidence that his earlier conviction did not constitute a aggravated felony. The USCA thus granted Lua's petition. Goodwin, Thomas (concurring), and Bea (author), Circuit Judges. L. Peckham of Santa Rosa, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

46) IMMIGRATION: Miguel-Miguel v. Gonzales, 05-15900 (9th Cir. Aug. 29, 2007). At issue here was whether the Attorney General may through an adjudicative decision create a strong presumption that a drug trafficking offense resulting in a sentence of less than five years is a "particularly serious criminal" under 8 USC Sec. 1231(b)(3)(B). Miguel, a native of Guatemala, sought withholding of removal based on his alleged fear that his life or freedom would be threatened if he were returned to Guatemala. The BIA agreed, de-claring Miguel eligible for withholding removal, but nonetheless ordered him removed because it found that his 1999 conviction for selling $20 of cocaine was a particularly serious crime. In so finding, the BIA followed the presumption set forth in Matter of Y-L-, 23 I&N Dec. 270 (Op. Att'y Gen. 2002), disapproved of on other grounds by Zheng v. Ashcraft, 332 F.3d 1186 (9th Cir. 2003), even though Matter of Y-L- was issued after Miguel had pled guilty to his 1999 offense. The USCA held that the Attorney General did have the authority to create the presumptive standard in Y-L-, but that the BIA erred by applying it retroactively in Miguel's case. Hug, Rymer, and Fisher, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; D. Knauss of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) ARRESTS / QUALIFIED IMMUNITY: Rodis v. City and County of San Francisco, 05-15522 (9th Cir. Aug. 28, 2007). Ro-dis brought suit against the City and Country of San Francisco, the San Francisco Police Department, the police chief, and two police officers under 42 USC Sec. 1983, alleging a violation of his Fourth Amendment rights during an arrest. The district court dismissed the suit against the City and the police chief, and rejected an assertion of qualified immunity by the two officers. The defendants then brought an interlocutory appeal. The USCA affirmed, finding that the defendants were not entitled to qualified immunity. Probable cause requires "information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense." Allen v. City of Portland, 73 F.3d 232, 237 (9th Cir. 1996). Given the circumstances surrounding Rodis' arrest, no prudent person could have concluded reasonably that there was a fair probability Rodis had committed a crime. The defendants thus were not entitled to qualified immunity. Dissenting, Judge Callahan thought that arresting Rodis due to a failure to recognize an older series of 100 dollar bill was not an intentional violation of his constitutional rights, nor was the law that probably cause for arresting someone on suspicion for violating 18 USC Sec. 472 requires proof of the suspect's subjective intent clearly established. Judge Callahan thus thought the officers were entitled to qualified immunity. D.W. Nelson (author) and Callahan (dissenting), Circuit Judges, and Carney, District Judge. S. Wiener of San Francisco, CA, for the defendants-appellants;; L. Fasano of San Francisco, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

48) AIRPORT SCREENING SEARCHES: USA v. Aukai, 04-10226 (9th Cir. Aug. 10, 2007). Some 700 million passengers board commercial aircraft in the U.S. each year. The Transportation Security Administration (TSA) is tasked with ensuring their safety. To do so, it conducts airport screening searches of all passengers entering secured areas of the airport. The Circuit has previously held that airport screening searches are constitutionally reasonable administrative searches. It now clarifies that the reasonableness of such a search does not depend, in whole or in part, upon the consent of the passenger being searched. Aukai arrived at the Honolulu International Airport intending to take a Hawaiian Airlines flight from Honolulu to Kona. He proceeded to check in at the ticket counter but did not produce a government-issued picture identification. The ticket agent thus wrote "No ID" on Aukai's boarding pass. Aukai then proceeded to the security checkpoint, at which signs were posted advising passengers that they and their carry-on baggage were subject to search. He entered the security checkpoint at approximately 9:00am, placed his shoes and a few other items into a plastic bin, and voluntarily walked through the magnetometer. The magnetometer did not signal the presence of metal as Aukai walked through. Nor did his belongings trigger an alarm or otherwise raise suspicion as they passed through the x-ray machine. Aukai then presented his boarding pass to TSA Officer Motonaga. Pursuant to TSA procedures, a passenger who presents a boarding pass on which "No ID" has been written is subject to secondary screening even if he has passed through the initial screening without triggering an alarm or otherwise raising suspicion. As conducted here, the secondary screening consisted of a TSA officer passing a handheld magnetometer, known as a "wand," near and around the passenger's body. If the wand detects metal, it sounds an alarm. The TSA officer then discerns the cause of the alarm, using techniques such as feeling the outside of the passenger's clothes in the area that caused the alarm and, if that area is near a pocket, directing the passenger to empty his pocket. Motonaga directed Aukai to a nearby, roped-off area for secondary screening. Aukai complied but complained he was in a hurry to catch is flight which, according to the boarding pass, was scheduled to leave minutes later at 9:05a.m. Although Aukai went into the roped-off area as directed, he did not stay there. When Motonaga noticed that Aukai had left the area and was gathering his belongs from the plastic bin, she instructed Aukai that he was not allowed to retrieve his property and that he had to stay in the roped-off area. Aukai appealed to TSA Officer Misajon, who was to perform the secondary screening, explaining again that he was in a hurry to catch his flight. Misajon nevertheless had Aukai sit in a chair and proceeded to use the want to detect metal objects. At some point, Misajon had Aukai stand, and when he passed the wand across the front of Aukai's body, the wand alarm sounded at Aukai's front right pants pocket. Misajon asked Aukai if he had anything in his pocket. Aukai responded that he did not. Misajon passed the wand over the pocket a second time; again the want alarm was triggered. Misajon again inquired whether Aukai had anything in his pocket; again Aukai said he did not. Misajon then felt the outside of Aukai's pocket and concluded that something was inside the pocket. Misajon could also see the outline of an unknown object in Aukai's pocket. Aukai then informed Misajon that he no longer wished to board a plane and wanted to leave the airport. At this point, TSA Supervisor Vizcarra approached Misajon as asked whether he needed assistance. Misajon related the events and Vizcarra directed Aukai to empty his pocket, Aukai again protested that he had nothing in his pocket. Vizcarra touched the outside of Aukai's pocket and felt something in the pocket. He again directed Aukai to empty his pocket. This time Aukai reached into his pocket and removed either his keys or change, but bulge was still visible in his pocket. Vizcarra directed Aukai to remove all contents from his pocket. After again claiming there was nothing more, Aukai removed an object wrapped in tissue paper and placed it on a tray. Suspecting that the object might be a weapon, Vizcarra summoned a nearby law enforcement officer. Vizcarra then unwrapped the object and discovered a glass pipe used to smoke methamphetamine. The officer then escorted Aukai to an office near the security checkpoint where he was placed under arrest and searched incident to his arrest. During that search, the police discovered in Aukai's front pants pockets several transparent bags containing a white crystal substance. Aukai was subsequently taken into federal custody, where he was advised of and waived his Miranda rights. He then gave a statement in which he inculpated himself in the possession of methamphetamine. He was indicted for knowingly and intentionally possessing, with the intent to distribute, 50 grams or more of methamphetamine. The district court denied his motion to suppress the evidence and his statement. He then pleaded guilty pursuant to a written agreement that preserved his right to appeal the denial of his suppression motion. The district court sentenced him to a term of 70 months plus 5 years supervised release. The USCA affirmed, holding that the search was a constitutionally reasonable administrative search. The detention associated with the search last no more than 18 minutes. That was reasonable, especially in light of Aukai's conduct, and it was not prolonged beyond the time reasonably required to rule out the presence of weapons or explosives. Judge Graber, joined by Hawkins and Wardlaw, concurred in the result and nearly all the reasoning but wrote because she could not join the majority's "irrelevant" references to 9/11 and terrorists. She thought the search of Aukai's person fell squarely within the confines of a reasonable administrative search. Schroeder, Kozinski, Kleinfeld, Hawkins, Silverman, Graber (concurring), McKeown, Wardlaw, W. Fletcher, Gould, Rawlinson, Bybee, Callahan, Bea (author), and Wardlaw, Circuit Judges. P. Tower of Honolulu, HI, for the appellant; AUSA J. Drennan of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

49) EVIDENCE: USA v. Grigg, 06-30368 (9th Cir. Aug. 22, 2007). Grigg appealed the district court's denial of his motion to sup-press an unregistered automatic firearm that police officers discovered while conducting an investigative stop of Grigg pursuant to a citizen's complaint that Grigg had been playing his car stereo at an excessive volume earlier in the day. The USCA reversed the denial of the motion to suppress the firearm and post-arrest statements, and remanded for further proceedings. The USCA held that under the balancing test set forth in Hensley, a court reviewing the reasonableness of a stop to investigate a past misdemeanor (or other minor infraction) must assess the potential risk to public safety associated with the nature of the offense. Under the circumstances presented here, it was unreasonable for the police to pull over Grigg on suspicion of having played his music too loudly where they did not duly consider the lack of any threat to public safety, especially give the untested alternative means of ascertaining Grigg's identity. See USA v. Hensley, 469 US 221 (1985). Gould (author), Paez, and Rawlinson, Circuit Judges. T. Monaghan of Boise, ID, for the appellant; AUSA A. Lucoff of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

50) EVIDENCE: USA v. Stanton, 06-10519 (9th Cir. Aug. 31, 2007). A magistrate found Stanton guilty of driving while under the influence of alcohol to a degree that rendered him incapable of safe operation. The district court reversed, holding that insufficient evidence supported the magistrate's decision. The United States appealed, contending that the district court erred in concluding that no rational trier of fact could have found Stanton guilty beyond a reasonable doubt. Stanton countered that the USCA lacked subject matter jurisdiction over the government's appeal, and, in the alternative, that the government did not adduce sufficient evidence to support his convicton. On the record evidence with all reasonable inferences arising therefrom considered in the light most favorable to the government, a rational trier of fact could have found beyond a reasonable doubt that Stanton was impaired to the point that he could not safely operate his vehicle. The USCA thus reversed the district court and remanded, ordering the district court to reinstate the magistrate's guilty verdict. Goodwin (author), Bybee, and Smith, Circuit Judges. AUSA P. Levitt of Las Vegas, CA, for the appellant; J. Watkins of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

51) SENTENCING: USA v. Lambert, 07-30060 (9th Cir. Aug. 16, 2007). Lambert appealed the sentence imposed following his guilty plea to conspiracy to defraud the United States, in violation of 18 USC Sec. 286, arising from his submission of, and payment for, invoices to the Fort Peck Indian Tribes Education Department for educational grant-writing services Lambert never performed. Lambert challenged the district court's application of a two-level enhancement under Guideline Sec. 2B1.1(b)(8)(A) after it ruled that Lambert's offense involved a misrepresentation that he was acting on behalf of an educational organization or a government agency. The USCA affirmed. Neither the Guideline's text nor commentary supported Lambert's argument that Sec. 2B1.1(b)(8)(A) applies only where a defendant exploits the charitable impulses of his victim, and a Tenth Circuit decision to the contrary can be distinguished in light of subsequent Guideline changes. Lambert's conduct thus fell within the plain language of Sec. 2B1.1(b)(8)(A), and the district court did not abuse its discretion in applying the enhancement. Alarcon, Hawkins (author), and Wardlaw, Circuit Judges. H. Naber of Great Falls, MT, for the appellant; AUSA C. Rostad of Great Falls, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

52) UNLAWFUL SEXUAL ACTIVITY WITH A MINOR: USA v. Goetzke, 05-30267 (9th Cir. Aug. 1, 2007). A jury found Goetzke guilty of attempting to persuade, induce, entice, or coerce a minor, W, to engage in unlawful sexual activity in violation of 18 USC Sec. 2422(b). He argued that the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt. The facts we