1) TAXATION / FOIA: Pacific Fisheries, Inc. v. USA, 06-35718 (9th Cir. Aug. 21, 2008). This case arose from a tax investigation by the Russian government of Voloshenko, a Pacific Fisheries employee. Pursuant to a convention between the U.S. and Russia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and Capital ("Treaty"), Russian authorities requested the U.S. government's assistance in its investigation. On April 23, 2004, in furtherance of the Russian authorities' request, the IRS issued two third-party summonses to Bank of America, seeking records relating to Pacific Fisheries and Voloshenko. Pacific Fisheries notified them that the summonses were defective, but the government refused to withdraw them. Pacific Fisheries then filed a petition to quash the summonses for various reasons, including bad faith, relevance, and timeliness. The IRS subsequently withdrew the summonses and did not defend the action. Pacific Fisheries then made several attempts to obtain the documents that served as the basis for the issuance of the summonses. Those attempts included a discovery request in the district court, which the government opposed as moot after withdrawing the summonses, and a FOIA request dated July 27, 2004. In its FOIA request, Pacific Fisheries asked for all documents related to the issuance of the summonses, as well as any and all tax returns, tax information or other documents which may have been provided by the IRS to Russian authorities concerning Pacific Fisheries. When no documents were produced, Pacific Fisheries filed this FOIA action in the district court seeking a court order requiring the IRS to produce the requested documents. The government maintained that all documents responsive to the FOIA request were exempt from disclosure. It cited FOIA exemption three, which applies to documents that are "specifically exempted from disclosure by statute," 5 USC Sec. 552(b)(3), and provisions of the Internal Revenue Code prohibiting disclosure of tax-convention information and third-party tax return information. Pacific Fisheries appealed the district court order granting summary judgment to the IRS on its claim that the IRS improperly withheld or redacted certain documents responsive to Pacific Fisheries' Freedom of Information Act request. The USCA reversed in part, affirmed in part, and remanded to the district court to determine whether the Treaty exemption applies and whether factual portions of certain documents subject to the deliberative process privilege were properly segregated and disclosed. B. Fletcher (author), Paez, and N.R. Smith, Circuit Judges. R. Chicoine of Seattle, WA, for the appellant; J. Cohen of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) SECURITIES: SEC v. Medley, 06-15165 (9th Cir. Aug. 12, 2008). This case arose from the activities of M&A West, Inc., which the district court stated "can fairly be described as a sham incubator for startup companies." Since 1992, Medley has been in the business of assisting private corporations to become publicly-traded corporations through reverse merger transactions. Medley would identify a suitable public shell company into which the private company would merge, advise the private company, coordinate the transaction with both parties, and assist with the paperwork involved in such a transaction. In the transactions at issue here, Medley assisted his co-defendants in arranging reverse mergers for three privately-held companies: M&A West and two of its subsidiaries. The SEC brought a civil law enforcement action against Medley and five co-defendants. This appeal concerns the charges against Medley only. He was charge with violating Sec. 5 of the Securities Act of 1933 for selling unregistered securities. On summary judgment, the district court held that Medley was an underwriter under Sec. 2(11) of the Act, and thus not exempt from Sec. 5's registration requirements under Sec. 4(1). The district court also imposed remedies in the form of a five-year injunction, civil penalties, disgorge-ment and prejudgment interest. On appeal, Medley maintained, as he did before the district court, that he acted in reliance on Rule 144(k), 17 CFR Sec. 230.144(k), a safe harbor under which persons are deemed not to be underwriters as the term is used in Sec. 2(11). The USCA concluded that the district court properly held that Medley was an underwriter, and thus not exempt from the regis-tration requirements. It also concluded that the district court did not err in ordering that Medley disgorge all profits, with interest, he obtained from his transactions. However, it held that genuine issues of material fact precluded the entry of summary judgment as to the imposition of the civil sanctions-specifically, the second-tier penalties and the five-year injunction. The USCA thus vacated the summary judgment on civil sanctions and remanded for an evidentiary hearing. Thomas (author), Tallman, and Ikuta, Circuit Judges. I. Einhorn of Los Angeles, CA, for the appellant; B. Cartwright of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) SECURTIES: In re Gilead Sciences Securities Litigation, 06-16185 (9th Cir. Aug. 11, 2008). A group of individual investors brought this securities fraud action on behalf of themselves and a proposed class comprising all individuals (collectively "the investors") who purchased Gilead Sciences' publicly traded securities between July 14, 2003 and October 28, 20003. They allege that Gilead misled the investing public by representing that demand for its most popular product was strong without disclosing that unlawful marketing was the cause of that strength. The district court dismissed under Federal Rule of Civil Procedure 12(b)(6), holding that the investors failed to sufficiently allege loss causation. The USCA reversed, finding that the investors had sufficiently alleged loss causation and economic loss. It left it to the district court to determine whether they sufficiently alleged the other elements of their claims. Kozinski, Hawkins (author), and Cowen, Circuit Judges. S. Alexander of San Francisco, CA, for the plaintiffs-appellees; J. Dwyer of Palo Alto, CA, for the defendants-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) STOCK PURCHASE AGREEMENTS: Western Filter Corporation v. Argan, Inc., 07-55535 (9th Cir. Aug. 25, 2008). Western Filter Corporation appealed the district court's grant of summary judgment in favor of Argan, Inc. At issue was a matter of first impression under California law: Whether a provision within a Stock Purchase Agreement permitting the representations and warranties of the parties to survive closing, also serves as a contractual statute of limitation that reduces a longer period otherwise provided by California law. Because the provision at issue did not unambiguously state the parties' intent to contractually reduce the applicable California statue of limitation to one year, the USCA reversed and remanded. O'Scannlain and Tallman (author), Circuit Judges, and Singleton, District Judges. G. Long of Los Angeles, CA, for the appellant; J. Clasen of Stamford, Conn., for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) SECURITIES / NAKED SHORT SELLING: Whistler Investments v. Depository Trust, 06-16088 (9th Cir. Aug. 22, 2008). Whistler Investments, a Nevada corporation whose common stock is publicly traded, Salim S. Rana Investments and American Dream Holdings, both shareholders who purchased and sold Whistler Investments common stock in the open market, brought this action for damages under Nevada law against three registered clearing agencies. They alleged that short sellers drove down the market prices for Whistler stock by selling Whistler shares without having stock available for delivery, and then intentionally failed to deliver the stock-a technique referred to as "naked short selling." Their complaint was premised on the claim that naked short selling was facilitated by alleged defects in a program operated by the National Securities Clearing Corporation, a defendant in this lawsuit. The defendants moved to dismiss the action on the ground that federal securities law preempted the claims. The district court granted the defendants motion, holding the claims preempted under the doctrine of field preemption and conflicts preemption. At issue on appeal was whether the Securities Exchange Act of 1934 preempts state-law claims against registered clearing agencies in connection with their clearance and settlement services, where those services are performed pursuant to a program approved of by the SEC. Although it held that the state law claims asserted were not precluded by field preemption, the USCA found them barred by conflict preemption. It thus affirmed the judgment of the district court. Hawkins, Thomas (author), and Clifton, Circuit Judges. M. Morrison of Reno, NV, for the appellants; D. Nomura of Reno, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) ANTITRUST: In re Dynamic Random Access Memory Antitrust Litigation, 06-15636 (9th Cir. Aug. 14, 2008). The plaintiff, Centerprise International, a British computer manufacturer that purchased DRAM (dynamic random access memory) outside of the U.S., appealed the district court's dismissal of its complaint for lack of subject matter jurisdiction under the Foreign Trade Antitrust Improvement Act of 1982 ("FTAIA"). The defendants are U.S. and foreign manufacturers and sellers of DRAM. The plaintiff alleged that the defendants engaged in a global conspiracy to fix DRAM prices, raising the price of DRAM to customers in both the U.S. and foreign countries. The district court dismissed the complaint with prejudice for lack of subject matter jurisdiction under the FTAIA. Relying on F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 US 155 (2004), and the D.C. Circuit's decision in that case on remand, the district court held that Centerprise had not met FTAIA jurisdictional prerequisites because it had not sufficiently alleged that its foreign injury was directly linked to the domestic effect of higher U.S. prices for DRAM. The district court also denied Centerprise leave to amend its complaint as futile because it proposed amendments did not substantively change its theory of recovery. The USCA affirmed. It agreed that the additional allegation Centerprise proposed was similar to those it already made and alleged too indirect a link to support subject matter jurisdiction under the FTRAIA. Centerprise's assertion that the domestic and foreign prices were directly correlated, without more, did not warrant granting leave to amend. The USCA thus held that the district court did not abuse its discre-tion in denying leave to amend as futile. Concurring, Judge Noonan noted that it would seem that reasonably prudent persons in the position of the defendants would see that their actions setting prices in the U.S. would negatively affect customers in the U.S. and elsewhere. But it has been the judgment of Congress and the Supreme Court that the economic interests of consumers outside the U.S. are normally not something that American law protects and it is difficult to persuade a court that injury to foreign consumer has been "caused" by price-fixing in the U.S.-it is so difficult that amendment of the complaint becomes futile and jurisdiction itself is found not to exist. The point is reach not from guidance in words like 'proximate' or 'direct' but from a strong sense that the protection of consumers in another country is normally the business of that country. Noonan (concurring), McKeown, and Fisher (author), Circuit Judges. H. Rossbacker of Los Angeles, CA, for the appellant; J. Sanders and K. O'Rourke of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) BANKRUPTCY / STUDENT LOANS: In re Coleman, 06-16477 (9th Cir. Aug. 1, 2008). Since graduating from college, Cole-man has been irregularly employed as a teacher. She owes over $100,000 in student loans to Educational Credit Management Corpora-tion. She sought a determination that it would constitute an undue hardship under 11 USC Sec. 523(a)(8) for her to repay these loans, and that they should therefore not be excepted from discharge. Educational Credit moved to dismiss for lack of subject matter jurisdic-tion on ripeness grounds. The bankruptcy court denied the motion and the district court affirmed the decision of the bankruptcy court. The USCA affirmed. Coleman is currently making payments under her five-year Chapter 13 plan. She will not be entitled to discharge any of her debts until she complete this plan, and will not be entitled to discharge her student loans unless she can show "undue hard-ship." The issue on appeal was one of timing: Could Coleman obtain an undue hardship determination substantially in advance of the time she completes payments under her Chapter 13 plan? The USCA found that prudential ripeness considerations did not warrant taking the undue hardship determination away from the bankruptcy court at a time when its resolution may be integral to successful completion of the plan. Absent a constitutional ripeness impediment to the undue hardship determination-which does not exist in this case-the USCA saw no prudential reason to delay the determination where the record, as here, was sufficiently developed for the bankruptcy court to undertake the analysis. O'Scannlain and Hawkins (author), Circuit Judges, and Selna, District Judge. C. Zaun of St. Paul, Minn., for the appellant; L. Fuller of San Jose, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) BANKRUPTCY / STUDENT LOANS: In re Ferrell, 06-17243 (9th Cir. Aug. 22, 2008). Chapter 13 bankruptcy trustee McDonald appealed the bankruptcy appellate panel's denial of her request for actual damages, statutory damages, attorneys' fees, and costs under the Truth in Lending Act ("TILA"), and for attorneys' fees and costs under Nevada law. This appeal presented an issue of first impression for the Ninth Circuit: Whether statutory damages are available for violations of 15 USC Secs. 1632(a) and 1638(b)(1). The USCA held that they are not. Smith v. Gold Country Lenders, 289 F.3d 1155, 1157 (9th Cir. 2000), held that in order to receive actual damages for a TILA violation, a borrower must establish detrimental reliance. The consumer must show that she "would either have secured a better interest rate elsewhere, or foregone the loan completely." The trustee recognized that she had not shown detrimental reliance. The trustee also asserted that she is entitled to attorneys' fees and costs under Nevada's consumer fraud act. She claimed that Checks-N-Advance's failure to abide by the TILA constitutes a "deceptive trade practice" under Nev. Rev. Stat. Sec. 598.0923(3) and that this qualified her to receive fees and costs pursuant to Nev. Rev. Stat. Sec. 41.6000(3)(b). The USCA rejected this argument. To recover attorneys' fees and costs on default judgment, the plaintiff must "specify the judgment and the statue, rule or other ground [so] entitling" her. Fed. R. Civ. P. 54(d)(2)(B)(ii). The trustee failed to plead with specificity the statute under which she now claims to be entitled to costs and fees. The complaint requested attorneys' fees and costs under Nev. Rev. State. Sec. 604.164. On appeal, the trustee now insists on fees and costs under Nev. Rev. State. Sec. 41.6000. To enter fees and costs in the trustee's favor would violate Rule 54(c) by imposing a default judgment on grounds that differ from that was "demanded in the pleadings." Farris, Bea, and Siler, Circuit Judges. Per Curiam. C. Burke of Las Vegas, NV, for the appellee; N. Simon of Washington, DC, amici curiae in support of the appel-lant. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) CLEAN AIR ACT / CITIZEN SUITS: El Comite para el Bienestar de Earlimart v. Warmerdam, 06-16000 (9th Cir. Aug. 20, 2008). At issue here was a challenge under Sec. 304 of the Clean Air Act-the "citizen suit" provision. A coalition of community or-ganizations ("El Comite") brought suit against California state officials responsible for designing and implementing a state air quality plan. The approval process for the State Implementation Plan ("SIP") required much back-and-forth between California and the EPA. El Comite took issue with both the process by which California obtained EPA approval of the SIP and the final outcome of that approval process. In particular, El Comite argued that California violated federal law by failing to adhere to the SIP approved by the EPA, which it argued required California to implement additional regulations in five areas where air quality standards for reducing harmful emissions have not been met. California went astray, according to El Comite, by using the wrong data to calculate the baseline for its emission standards and by ignoring deadlines intended to be incorporated into EPA's final approval of the SIP. El Comite's claim turned on the determination of what documents were incorporated into the final SIP and the EPA rule, and interpretation of what the SIP, and hence federal law, requires of California. The district court held that it lacked jurisdiction to review El Comite's claim regarding the data and methodology used by California to calculate the baseline for emissions standards. The court agreed with El Comite's expansive interpretation of the SIP, and ordered relief based on that interpretation. That relief was also built on the methodology El Comite advocated for use in calculating the baseline-the same methodology the district court found it was without jurisdiction to review. As it worked through the parties labyrinthine administrative law arguments, it acknowledged that its rulings were potentially incongruous. The USCA agreed. It thought the district court ultimately exceeded it jurisdiction. Because Sec. 304 provides jurisdiction only to enforce an "emission standard or limitation," and the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy. O'Scannlain, Hawkins, and McKeown (author), Circuit Judges. DAG M. Neville of San Francisco, CA, for the intervenors; B. Newell of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) CLEAN WATER ACT: Southwest Marine v. United States, 07-55229 (9th Cir. Aug. 6, 2008). The petitioner sought review of a district court judgment granting summary judgment for the U.S. and the Secretary of the Navy. At issue was whether fees incurred by the petitioner during its unsuccessful defense of a private party Clean Water Act lawsuit were allowable costs under Subpart 31.2 of the Federal Acquisition Regulation ("FAR"), 48 CFR Secs. 31.201-31.205. The USCA held that the petitioner's costs are not allow-able because the costs are similar to costs disallowed in FAR Sec. 31.205-47(b). FAR Secs. 31.204, 31.205-33, and 31.205-47 constitute permissible constructions of 10 USC Secs. 2324(f) and 2324(k), and the District court's application of these provisions, alone and in combination, did not violate 10 USC Sec. 2324. The USCA thus affirmed. Kozinski, Aldisert (author), and D.W. Nelson, Circuit Judges. P. Jones of Newport Beach, CA, for the petitioner; P. Keiser of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ENVIRONMENTAL LAW: Center for Biological Diversity v. Marina Point Development Company, 06-56193 (9th Cir. Aug. 6, 2008). The defendants appealed the district court's judgment on the merits in favor of the Center for Biological Diversity and Friends of Fawnskin (collectively "the Center") on their claims under the Clean Water Act ("CWA") and the Endangered Species Act ("ESA"). They also appealed the district courts order awarding attorney fees to the Center and the district court's contempt order. The USCA vacated the district court's judgment on the merits and instruct it to dismiss for lack of jurisdiction. The district court had de-termined that the defendants had violated the CWA and had either violated or would violate the ESA. However, because it lacked ju-risdiction over the CWA claims and because the ESA claims had become moot, the USCA vacated its judgment and remanded with directions to dismiss for lack of jurisdiction. Concomitantly, the USCA reversed the award of attorneys' fees and the contempt order. Fernandez (author), Rymer, and Kleinfeld, Circuit Judges. R. Crockett of Los Angeles, CA, for the appellants; B. Conn of Los Ange-les, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) ENVIRONMENTAL LAW: Center for Biological Diversity v. National Highway Traffic Safety Administration, 06-71891 (9th Cir. Aug. 18, 2008). (The opinion filed Nov. 15, 2007 has been withdrawn and replaced with the opinion file Aug. 18, 2008.) Eleven states, the District of Columbia, the City of New York, and four public interest organizations petitioned for review of a rule issued by the National Highway Traffic Safety Administration ("NHTSA") entitled "Average Fuel Economy Standards for Light Trucks, Model Years 2008-2011" ("Final Rule"). Pursuant to the Energy Policy and Conservation Act of 1975 ("EPCA"), the Final Rule set corporate average fuel economy ("CAFE") standards for light trucks, defined by NHTSA to include many SUVs, minivans, and pickup trucks, for Model Years ("MYs") 2008-11. For MYs 2008-2011, the Final Rule set new CAFE standards using its traditional method, fleet-wide average ("Unreformed CAFE"). For MYs 2011 and beyond, the Final Rule created a new CAFE structure that set varying fuel economy targets depending on vehicle size and requires manufacturers to meet different fuel economy levels depending on their vehicle fleet mix ("Reformed CAFE"). The petitioners challenged the Final Rule under the EPCA and the National Environmental Policy Act of 1968 (NEPA). The USCA held that the Final Rule was arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, its failure to set a backstop failure to close the SUV loophole, and its failure to set fuel economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating class. The USCA further held that the Environmental Assessments ("EA") was inadequate and that the petitioners raised a substantial question as to whether the Final Rule may have a significant impact on the environment. The USCA thus remanded to the NHTSA for it to promulgate new standards as expeditiously as possible and to prepare either a revised EA or an Environmental Impact Statement. Judge Siler concurred in the majority's conclusions on all points, except one: He would not find that the NHTSA acted arbitrarily or capriciously in failing to adopt a backstop for a minimum level of average fuel economy. The majority, he noted, admitted that the EPCA does not require NHTSA to adopt a backstop. "We must realize," Judge Siler said, "that the arbitrary or capricious standard is one that grants an agency a significant amount of deference. Its failure to adopt the backstop was not an act which ignored factors that Congress required to be taken into account." Under those circumstances, when the EPCA did not require the adoption of a backstop, Judge Siler would not find that NHTSA acted arbitrarily or capriciously in failing to do so. B. Fletcher (author), Siler (dissenting in part), and Hawkins, Circuit Judges. P. Gallagher of San Francisco, CA, and D. Sivas of Stanford, CA, for the petitioner. R. Knapp of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) INSURANCE: Life Insurance Co. of North America v. Ortiz, 07-55308 (9th Cir. Aug. 1, 2008). This case involves an inter-pleader action over the life insurance proceeds for an officer killed in the line of duty. Although Luis Ortiz's ex-wife, Gloria Ortiz, was designated the beneficiary, Graciela Ortiz maintained that that divorce extinguished Gloria's expectancy interest. The district court awarded the life insurance proceeds to the estate for interstate division among Graciela and the decedent's two sons. The USCA re-versed and remanded for the district court to award 93.55% of the disputed life insurance proceeds to Gloria and 6.45% to Graciela. Dissenting, Judge Kozinski thought the majority had reached a senseless, unjust and cruel result by awarding half a million dollars to the former wife, leaving the officer's widow and children out in the cold. That was not necessary, he thought, as the law, the facts, the equities, common sense and district court's findings all support the just result: giving the proceeds of the service life insurance policies mean to protect the officer's loved ones to the people he actually love. Kozinski (dissenting), Aldisert, and D.W. Nelson, Circuit Judges. Per Curiam. R. Foster of Irvine, CA, for the appellant; J. Gaule of Arcadia, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) INSURANCE: Nationwide Life Insurance Company v. Richards, 06-56562 (9th Cir. Aug. 28, 2008). Nationwide Life Insur-ance Company brought this non-statutory interpleader action to resolve conflicting claims to the proceeds of a one million dollar insur-ance policy written on the life of Bryan Richards who was murdered on December 21, 2001. Bryan's wife, Angelina, appealed the dis-trict court's judgment against her and in favor of Bryan's brother, Keith, in his role as guardian ad litem for Bryce and Kendall Richards, the two minor children of Bryan and Angelina. Following a bench trial, the district court made a factual determination that Angelina conspired in, aided, and abetted Bryan's murder, and thus was disqualified from receiving any proceeds of the life insurance policy under California law. Angelina asserted errors in the district court's treatment of her pretrial assertions of the Fifth Amendment privilege against self-incrimination and in its admission of the deposition testimony of witness Strebendt. The USCA affirmed. It held that the district court did not abuse its discretion in precluding Angelina from testifying that she was not involved in Bryan's murder, or in drawing an adverse inference from her assertion of the Fifth Amendment privilege against self-incrimination, and that any error in these rulings was harmless. It also held that the district court properly admitted Strebendt's deposition testimony. Wardlaw and Ikuta, Circuit Judges, and Fogel (author), District Judge. R. Garrigues of Torrance, CA, for the appellant; R. Haskin of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) INSURANCE: Northrop Grumman Corporation v. Factory Mutual Insurance Co., 07-56760 (9th Cir. Aug. 14, 2008). Factory Mutual Insurance Company appealed the district court's summary judgment in favor of Northrop Grumman Corporation. Northrop sued the insurance company after Factory Mutual denied coverage for water damage caused by Hurricane Katrina at Northrop's Mississippi subsidiary. Factory Mutual argued that coverage for water damage was barred by an exclusion for flooding in the policy, but the district court held that the exclusion was ambiguous and construed it in favor of Northrop. The USCA reversed the district court's grant of summary judgment for Northrop, and remanded for a determination of whether California's efficient proximate cause doctrine mandates coverage of the damage notwithstanding the USCA's interpretation of the contractual language. Hall (author) and Rymer, Circuit Judges, and McNamee, District Judge. K. Pasich of Los Angeles, CA, for the plaintiff-appellee; P. Abrahams of En-cino, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) INSURANCE: California v. Altus Finance S.A., 06-55297 (9th Cir. Aug. 25, 2008). This case arose from the 1991 insolvency and subsequent rehabilitation of the Executive Life Insurance Company ("ELIC"), following the largest insurance failure in California history. Pursuant to a judicially supervised rehabilitation plan, Insurance Commissioner John Garamendi oversaw competitive bidding for the assets of the ELIC Estate, which included a large junk bond portfolio. Altus S.A., a subsidiary of Credit Lyonnais S.A., which is controlled by the French government, and MAAF Group, a consortium of French and Swiss insurers, submitted the winning bid. Altus purchased the junk bond portfolio for cash, and the MAAF Group agreed to create a new company to reinsure ELIC's outstanding insurance policies. Artemis S.A., a holding company controlled by Francois Pinault, subsequently purchased a percentage of that junk bond portfolio and the newly formed insurance company. The rehabilitation plan was a resounding success, resulting in a full recovery for 92% of the insolvent insurer's former policy holders and Artemis earned hundreds of millions of dollars in profit from appreciation of the ELIC Estate's junk bond portfolio. In 1999, however, years after the rehabilitation plan had been implemented, the Commissioner learned of a conspiracy between the members of the Altus/MAAF Group to circumvent regulatory barriers to foreign entities, such as Altus, from issuing insurance in California. The Commission thus filed this civil suit against the members of the Altus/MAAF Group, Artemis, and Pinault, alleging intentional misrepresentation, concealment and conspiracy to defraud. The Altus/MAAF Group defendants settled or defaulted on the claims. The case proceeded to a bifurcated jury trial against Artemis and Pinault. The National Organization of Life and Health Insurance Guaranty Associations ("NOLHGA") intervened to protect its interests as a losing bidder for the assets of the ELIC Estate. The jury found Artemis liable for conspiracy only and exonerated Pinault. The jury was unable to answer a special verdict form posing the Commissioner's principal theory of damages-that but for the Altus/MAAF Group conspiracy, the Commissioner would have selected the NOLHGA bid. The district court entered a Post-Verdict Order barring proffer of that theory during the damages phase of trial. The Commissioner presented two alternative theories of damages, and the jury awarded the Commissioner $0 in compensatory damages and $700 million in punitive damages. In an Order Re Punitive Damages, the district court vacated the punitive damages award. It made findings of fact on the Commissioner's equitable claims and awarded him $241 million in restitution. The USCA affirmed the judgment for Artemis on the claims for intentional misrepresentation and concealment. It affirmed the Order Re Punitive Damages, vacating the jury's $700 million punitive damages award under California law. It also reversed the Post-Verdict Order, vacated the award of restitution, and remanded for a new damages phase trial limited to proffer of the NOLHGA premise and a determination of damages (including punitive damages), if any, on that theory. Finally, the USCA vacated the district court's $241 million restitution award with leave to reinstate, if warranted, at the close of the new damages phrase trial. T.G. Nelson, Paez, and Bybee, Circuit Judges. G. Fontana of San Francisco, CA, for the appellant; J. Clark of Los Angeles for the appellee; C. Oliver of Denver, CO, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) LABOR LAW: Local Joint Executive Board of Las Vegas v. NLRB, 07-73979 (9th Cir. Aug. 27, 2008). This is the second time that the petitioner has sought review of a NLRB order dismissing its consolidated complaints against Hacienda Resort Hotel and Casino and Sahara Hotel and Casino ("the Employers") for unilaterally terminating dues-checkoff before bargaining to agreement or im-passe. The dispute centers on the NLRB's application of the unilateral change doctrine as recognized by NLRB v. Katz, 369 US 736 (1962). Under that doctrine, absent a waiver, an employer violates Secs. 8(a)(1) and 8(a)(5) of the National Labor Relations Act, if it makes a unilateral change in a term or condition of employment-so-called "mandatory subjects" or bargaining-without first bargaining over the relevant term. In an earlier decision in this case, the USCA granted the Union's petition, vacated the NLRB's decision and remanded to the NLRB with instructions because it could not discern its rationale for excluding, in the absence of union security, dues-checkoff from Katz' unilateral change doctrine. The USCA then asked the NLRB to "articulate a reasoned explanation for the rule it adopted, or [to] adopt a different rule and present a reasoned explanation to support it." On remand, the NLRB reaffirmed its dismissal of the complaint but, did not rely on the bright-line rule articulated in its original decision. Instead, it interpreted the collective bargaining agreements and found, without resolving whether in the absence of union security dues-checkoff should be excluded from Katz' unilateral change doctrine, that the Union had explicitly waived any right of employees to claim dues-checkoff after the agreements expired. The NLRB thus dismissed the Union's complaint. In its petition for review, the Union maintained that the NLRB side-stepped the issue posed on remand, but the USCA concluded that the NLRB was responsive to its instruction to "adopt a different rule. The NLRB's decision did not, however, properly apply the rule it adopted. Where a unilateral change is defended on a claim of contractual right, the alleged waiver must be-as the NLRB acknowledged on appeal-"clear and unmistakable." There was no clear and unmistakable waiver here. The USCA thus again granted the petition for review, vacated, and remanded. Canby, Graber, and Paez (author), Circuit Judges. M. Anderson of San Francisco, CA, for the petitioner; J. Broido of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) AMERICANS WITH DISABILITIES ACT: Jankey v. Poop Deck, 06-55957 (9th Cir. Aug. 12, 2008). Jankey, an individual with a physical disability requiring that he use a wheelchair, sued Poop Deck, a bar, and Quentin Thelen, its owner, under the Americans with Disabilities Act. Jankey alleged that the defendants failed to remove architectural barriers at a place of public accommodation in violation of the ADA. The parties entered into a settlement agreement, which the district court approved, that required the defendants to remedy the problems. Jankey then sought attorneys' fees as a prevailing party under the ADA. The district court denied the request, ruing that an award of attorneys' fees and costs under the circumstances would be unjust. The USCA reversed and remanded. Jankey had requested access and the defendants proposed modifications to provide it. After four months of silence, plus two more months during in which Jankey accepted and then unaccepted the proposal, Jankey finally proposed a settlement that essentially re-stated the modifications the defendants had offered six months earlier. In the face of these facts, the district court did not clearly err in determining that Jankey had unreasonably protracted the litigation. The USCA left it to the district court's discretion as to whether and to what extent Jankey's protraction of the litigation should affect the award of attorneys' fees. Graber (author) and Berzon, Circuit Judges, and Wilken, District Judge. T. Frankovich of San Francisco, CA, for the appellant; E.T. Moroney of Redondo Beach, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) AMERICANS WITH DISABILITIES ACT: D'Lil v. Best Western Encina Lodge, 06-55516 (9th Cir. Aug. 12, 2008). D'Lil works as an "accessibility consultant," contracting with private attorneys and local governments to evaluate properties for barriers to disabled access. She is a paraplegic who requires the use of a wheelchair for mobility. While traveling from her home in Sacramento to Santa Barbara, California, to conduct a property inspection for attorney Jason Singleton, she called the Best Western Encina to reserve a wheelchair accessible room for the night. She was informed that the hotel had an available room that lacked a roll-in shower, but was fully accessible in all other respects. She reserved the room. When she arrived at the hotel, she encountered what she termed "multiple and severe barriers to disabled access." Steep ramps, lack of handrails, and high counters made it difficult for her to maneuver in the front lobby and desk area. After she checked in, she discovered that the area of the hotel containing the designated disabled access rooms did not have van accessible parking spaces nearby. Inside her room, she found that many of the facilities, including the door hardware, lamps, as well as curtains and heating controls, were either too high or too far from a clear path of travel for her to use. The path to the bathroom was blocked by beds and furniture and the bathroom itself lacked sufficient room to approach and safely use the toilet, which was too low to the ground. The grab bars on either side of the toilet were not properly positioned, and were not of the correct length, resulting in "bruises and strains to both [of D'Lil's] arms and legs while trying to use the toilet. The bathtub was similarly inaccessible. D'Lil filed suit against the hotel, seeking injunctive relief under Title III of the Americans with Disabilities Act., injunctive relief and damages under California Civil rights laws, as well as attorneys' fees, litigation expenses, and costs. After three years of litigation, the parties entered into a consent decree that settled all issues related to injunctive relief and damages. The issues of attorneys' fees, litigation expenses, and costs were reserved for future resolution. The district court subsequently concluded that D'Lil failed to meet her burden of establishing article III standing, and thus that it lacked standing over her attorneys' fees motion. D'Lil then filed motions for a new trial and to renew her motion for attorneys' fees. The district court denied the motions and imposed sanctions. The USCA reversed the district court's dismissal of D'Lil's motion for attorneys' fees for lack of standing as well as its imposition of sanctions, and remand for that court to consider the merits of the motion. In light of the testimony at trial, the USCA could not agree with the district court that D'Lil failed to provide evidence of her intent to return to the hotel at the time she filed suit. To the contrary, her testimony plainly evidenced such an intent. The USCA thus held that D'Lil established that she suffered an "actual or imminent" injury sufficient to confer standing. Judge Rymer dissented in part. She would affirm the district court on the grounds that D'Lil failed to show any concrete plan or intent to return to the hotel as of the time she filed her complaint. She thus fell short of the standard for standing to seek injunctive relief. Moreover, Judge Rymer would not fault the district court for credibility concerns based on prior representations of an intent to return to numerous places of public accommodation coupled with the reality that those commitments remain outstanding. B. Fletcher, Reinhardt (author), and Rymer (dissenting in part), Circuit Judges. T. Thimesch of Walnut Creek, CA, for the appellant; J. Baraban of Pasadena, CA, and M. Orlick of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) FIDUCIARY DUTES / RICO: Walter v. Drayson, 07-16284 (9th Cir. Aug. 18, 2008). Robert Walter, a beneficiary of a trust created by his mother, Patricia Ward Walter, asserted RICO violations under 18 USC Secs. 1962(c) and (d), as well as various state law claims against Elizabeth Walter, a trustee, Richard Drayson, Patricia Walter's CPA and also a trustee, and Karen Temple and her law firm, who provided legal services to the trust and the trustees. Robert's RICO theory was that Elizabeth, Drayson, Temple, and Temple's firm, were an associated-in-fact enterprise whose purpose was to gain and maintain control of the trust and to facilitate the wrongful taking of trust assets. The district court dismissed the second amended complaint, holding that Temple's role was limited to providing legal services. She did not operate or manage the enterprise and, thus, could not be liable for conducting its affairs under Reves v. Ernst & Young, 507 US 170, 179 (1993). For this reason, the district court also dismissed the RICO conspiracy allegations. Robert appealed, arguing that the district court misapprehended the "operation and management" test in the context of an associated-in-face enterprise. But, the USCA held otherwise. Lacking the hook of a federal question, Robert's state law claims could proceed only if there were an independent basis for jurisdiction. But his claims sounded in breach of fiduciary duty necessarily implicate Eugene Rock, who became a successor trustee upon Patricia's death, and who, like Walter, was a resident of Colorado. Thus diversity was destroyed and these claims were properly dismissed under Fed. R. Civ. Proc. 19. Goodwin, Rymer (author), and Ikuta, Circuit Judges. R. Walter pro se; M. Bernstein of Honolulu, HI, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) LETTERS OF CREDIT / PROPERTY: Golden West Refining v. SunTrust Bank, 06-56006 (9th Cir. Aug. 18, 2008). In 1998, CENCO acquired two leases from Golden West that resulted in the execution of a May 11, 1998 Letter Agreement. CENCO was wholly owned by UniTrust, for which Pat Robertson is trustee. The Letter Agreement obligated CENCO to defend, indemnify, and hold Golden West harmless against any claims arising from the liabilities imposed on Golden West as tenant under the leases. To secure performance by CENCO of these duties, the Letter Agreement required CENCO to obtain a $5 million irrevocable letter of credit ("L/C"). It also required Golden West to terminate the L/C credit upon satisfaction of the conditions relating to the leases. In May 1998, UniTrust requested that Crestar Bank, the predecessor of SunTrust, issue a $5 million L/C on CENCO's account. On May 21, 1998, Crestar issued an irrevocable L/C containing an express provision for termination that required the consent of both Golden West and CENCO. UniTrust signed a Negative Pledge Agreement under which it agreed to maintain liquid assets in a specified amount, free of encumbrances, while the L/C was in effect. Crestar believed, based on representations by Robertson, that the L/C would only be outstanding for 90 days. In early 2001, SunTrust advised Robertson that it would not renew the L/C unless Robertson secured it. On April 2, 2001, CENCO filed an action against Golden West in the Superior Court of the State of California for the County of Los An-geles, alleging that Golden West had improperly failed to terminate the L/C. In May 2001, SunTrust told Robertson that UniTrust must either provide collateral to secure the L/C or transfer it to another bank. SunTrust then agreed to give UniTrust an additional 90 days to deliver collateral to secure the L/C. On June 4, 2001, the Superior Court entered Golden West's default for failure to answer CENCO's complaint. The Superior Court then ordered that Golden West by default consented to the termination of the L/C on its behalf by SunTrust and held that the L/C was released. At Robertson's request, SunTrust then terminated the credit. On July 20, 2001, the Superior Court by order vacated the default judgment. On October 2, 2001, it entered another order providing that the L/C is rein-stated as it existed on July 12, 2001, immediately prior to entry of the vacated default judgment. Despite CENCO's request that Sun-Trust reinstate the credit, SunTrust did not reinstate the L/C because neither CENCO nor UniTrust offered SunTrust adequate collat-eral. UniTrust refused to reinstate the Negative Pledge, or to provide any other security, taking the position that the L/C had terminated properly on July 12, 2001. During 2004 and 2005, the lessor of the properties leased by Golden West demanded that Golden West comply with the terms of the lease, an obligation for which CENCO had agreed to indemnify Golden West under the Letter Agreement. On January 12, 2005, Golden West demanded that CENCO deliver to the lessor the requested funds. After CENCO failed to do so, on February 2, 2005 Golden West made a draw on the L/C for $1,020,000. SunTrust dishonored the L/C on February 8, 2005 on the grounds that it had been cancelled pursuant to the default judgment and that it was "perpetual" and thus had expired under Uniform Commercial Code ("UCC") Sec. 5-106(d). SunTrust's dishonoring of the L/C, rejecting Golden West's draw, precipitated this law suit. Golden West brought this action in the federal district court, claiming in its amended complaint wrongful dishonor of the L/C and breach of contract. It requested specific performance and declaratory relief. The district court granted Golden West summary judgment and denied SunTrust's motion for summary judgment. It held that, under UCC Sec. 5-106(d), the L/C was not perpetual and thus had not expired and was still in effect on the date of the draw. It also held that the Superior Court default judgment was ineffective because Golden West had not consented to cancellation of the L/C as required in the Letter Agreement. It further held that Golden West had not waived its right to compel CENCO to follow the Superior Court orders reinstating the L/C because the default judgment had not given SunTrust license to terminate the L/C. Finally, it awarded Golden West damages, including consequential damages, for its wrongful dishonor, breach of contract, and specific performance claims. SunTrust appealed judgment for Golden West Refining Company in an action brought by Golden West to draw on a L/C issued to it by Crestar. SunTrust maintained that the district court erred (1) by holding that the L/C was not "perpetual" under UCC Sec. 5-106(d) and thereby had not automatically expired before Golden West made a draw against it, (2) by rejecting SunTrust's waiver argument, and (3) by concluding that Golden West's specific performance and breach of contract claims were not precluded by the exclusive remedies available under UCC Art. 5. The USCA affirmed. It held that the L/C was not a perpetual L/C under UCC Sec. 5-106(d), that SunTrust had not waived its right to assert the affirmative defense of waiver to Golden West's wrongful dishonor claim, and that Golden West had not waived its right to seek a remedy for SunTrust's wrongful dishonor of the L/C by failing to take action to enforce the Superior Court's order requiring CENCO to reinstate the L/C. The L/C was in existence when Golden West made a valid draw on it on February 2, 2005, and SunTrust had to honor the draw. Wallace, Gould (author), and Ikuta, Circuit Judges. S. Mitchell of Los Angeles, CA, for the appellant; D. Arnold of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) INTERNET / MINIMUM CONTACTS: Boschetto v. Hansing, 06-16595 (9th Cir. Aug. 20, 2008). At issue here was whether the sale of an item via eBay provided sufficient minimum contacts to support personal jurisdiction over a nonresident defendant in the buyer's forum state? Boschetto was the winning bidder for a 1963 Ford Galaxie sold on eBay by Hansing for $34,106. When it arrived, it failed to meet either Boschetto's expectations or the advertised description. He sued in federal court, but his complaint was dismissed for lack of personal jurisdiction. The USCA affirmed, concluding that the sale of one automobile via the eBay website, without more, did not provide sufficient "minimum contacts" to establish jurisdiction over a nonresident defendant in the forum state. In addition, given the total absence of any evidence or allegations that the conduct involved more than just this one sale, the district court did not abuse its discretion by refusing to allow jurisdictional discovery. Concurring, Judge Rymer wrote separately to underscore her disagreement with Boschetto's argument that Hansing, as a seller on eBay, necessarily availed himself of the privilege of doing business in each state across the nation. She thought that a defendant does not establish minimum contacts nationwide by listing an item for sale on eBay; rather, he must do "something more," such as individually targeting residents of a particular state, to be haled into another jurisdiction. B. Fletcher (author) and Rymer (concurring), Circuit Judges, and Duffy, District Judge. K. Simoncini of San Jose, CA, for the plaintiff-appellant; R. Krohn of Edgerton, WA, and T. Davis of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) CIVIL CONTEMPT: Koninklijke Philips Electronics, N.V. v. KXD Technology, Inc., 07-15310 (9th Cir. Aug. 20, 2008). Koninklijke Philips Electronics ("Philips") sued the defendants, alleging that they had infringed Philips' registered trademark and knowingly offered counterfeited Philips goods for sale in the United States. The defendants appealed an order of the district court im-posing monetary sanctions for civil contempt. Finding that it lacked jurisdiction, the USCA dismissed the appeal. Holding that a civil sanction is directly appealable if it is immediately payable runs the risk of eviscerating the fundamental rule that compensatory sanctions are civil and not appealable on interlocutory review. Moreover, the defendants will have the opportunity to appeal the sanctions after a final judgment. It was not persuaded that the defendants faced irreparable harm and, in any event, found that, due to the defendants' conduct, any risk of harm was appropriately placed upon them. Schroeder, Walker (author), and N.R. Smith, Circuit Judges. A. Handal of San Diego, CA, for the defendants-appellants; J. Joyner of Beverly Hills, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) PROPERTY: Shanks v. Byrd, 06-35665 (9th Cir. Aug. 27, 2008). The Dressels remodel and convert private homes into student residences. A group of homeowners and community organizations concerned that the Dressels' construction was degrading and devalu-ing the historic character of their neighborhood, brought suit in federal district court seeking injunctive and declaratory relief. They maintained that the city's alleged failure to enforce provisions of its zoning code intended to preserve historic districts violated the Fourteenth Amendment's Due Process Clause. Notwithstanding the plaintiffs' concerns about the neighborhood aesthetics and ambi-ance, the USCA concluded that they had not stated a federal constitutional claim. Although not preempted by the Fifth Amendment's Takings Clause, the plaintiffs' due process claim nonetheless failed. The USCA thus affirmed the district court's judgment against the plaintiffs. Fisher (author), Gould, and Ikuta, Circuit Judges. C. Cleveland of Spokane, WA, for the appellants; J. Craven of Spokane, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) MAINTENANCE & CURE PAYMENTS / CHILD SUPPORT: Aguilera v. Fishing Company of Alaska, Inc., 07-35148 (9th Cir. Aug. 4, 2008). Aguilera was injured in May 2004 while working onboard the F/T Alaska Juris, a factory trawler fishing vessel. At the time, he was employed by the Fishing Company of Alaska ("FCA"). As a result of this injury, FCA began paying him maintenance and cure in the amount of $20 per day. Shortly thereafter, FCA began withholding $10 per day from those payments in satisfaction of a child support order FCA received from the State of Texas. The order stated that FCA was "required by law" to deduct $241 per month from Aguilera's "income." The USCA held that maintenance and cure payments are subject to withholding for child support obligations, so long as the payments constitute income under relevant state law. The order was issued under Texas law which requires courts to calculate "resources" for purposes of determining child support liability. "Resources" are defined broadly under Texas law to include all other income actually be received, including disability and workers' compensation benefits. Tex. Fam. Code Ann. Sec. 154.062(b)(5). The only items that a court may deduct to calculate the "net resources" that are subject to withholding are social security taxes, federal income taxes, state income taxes, union dues, and health insurance expenses or cash medical support for the obligor's child pursuant to court order. Id. Sec. 154.062(d). Notably, Texas law does not exclude maintenance and cure payments from its definition of "resources." In light of this broad definition, the district court correctly denied Aguilera's motion seeking a ruling that his maintenance and cure payments did not constitute income. FCA thus acted appropriately when it withheld portions of those payments in order to satisfy its duties under the order. The district court thus correctly held that Aguilera's maintenance and cure payments were subject to withholding pursuant to a Texas child support order. Clifton and N.R. Smith (author), Circuit Judges. J. Merriam, Seattle, WA, for the appellant; M. Barcott of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) SECTION 340b DRUG DISCOUNTIING PROGRAMS: County of Santa Clara v. Astra USA, 06-16471 (9th Cir. Aug. 27, 2008). Certain federally funded medical clinics-so-called "Section 340B covered entities"-are able to purchase prescription drugs at a discount from drug manufacturers under a standardized agreement between the federal government and the drug companies. In this lawsuit, covered entities claim that they had been overcharged for those drugs in violation of pharmaceutical pricing agreements be-tween the Secretary of Health and Human Services and the drug manufacturer defendants. Applying the federal common law of con-tracts, the USCA held that the covered entities were intended direct beneficiaries of these agreements and thus had the right to enforce the agreements' discount provision against the manufactures and sue them for reimbursement of excess payments. The USCA thus re-versed the district court's dismissal of the complaint under Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim. Reinhardt, Brunetti, and Fisher (author), Circuit Judges. P. Coughlin of San Francisco, CA, for the appellant; R. Litt of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) CIVIL RIGHTS: Mendez v. County of San Bernardino, 05-56118 (9th Cir. Aug. 27, 2008). Mendez brought this suit against the County of San Bernardino, the City of Hesperia, the San Bernardino Sheriff's Department and various individual defendants (col-lective "the county") under 42 USC Sec. 1983 and state law, alleging violations of her civil rights. The case arose from the aftermath of an officer-involved shooting that resulted in the death of Mendez's deaf-mute son, Ignacio. Although the legality of the shooting itself was not challenged, Mendez alleged that the county falsely arrested her and another son after the shooting, illegally searched their home and was negligent in the supervision and training of its officers. Some of Mendez's claims were resolved on summary judgment, others were voluntarily dismissed before trial, and the remainder were tried before a jury, which found in Mendez's favor on the false arrest and illegal search claims and awarded her nominal and punitive damages. Mendez challenged the district court's decisions limiting the jury's consideration of her emotional damages, remitting her punitive damages award and granting summary judgment to the county on her state law negligent training claim. She also appealed the court's ruling denying her all attorneys' fees and costs and its sanctioning of her attorney. She requested reassignment of the case to a different judgment on remand. The USCA affirmed in part and remanded without reassignment. Because the district court did not make a bad faith finding before imposing sanctions, and the record did not support such a finding, the USCA reversed and vacated the sanction order. Trott, Hawkins, and Fisher (author), Circuit Judges. S. Hufstedler of Los Angeles, CA, for the appellants; E. Ramirez of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) CIVIL RIGHTS: Torres v. Los Angeles, 06-55817 (9th Cir. Aug. 26, 2008). In 2004, Torres, who was then 16 years old, was arrested, without a warrant, on charges of murder and attempted murder. After 162 days of incarceration, he was released when the district attorney dismissed the charges. Torres and his mother brought a civil rights action under 42 USC Sec. 1983 against the City of Los Angeles, its police department ("LAPD"), and four individual detectives (Roberts, Hickman, Park and Rains) who had investigated the shooting. The plaintiffs sought damages under both federal and state law. After granting summary judgment for the City and its police department, the district court denied two of the plaintiffs' motions in limine and, after all the parties had presented their evi-dence to the jury, granted the remaining defendants' motion for judgment as a matter of law. The USCA affirmed in part, reversed in part, and remanded. It concluded that the district court abused its discretion in denying the plaintiffs, in limine motion. It instructed the court on remand and upon proper motion by the plaintiffs, to require that the defendants, pursuant to Fed. R. Civ. Proc. 26(a)(2)(B), provide the plaintiffs with an expert report prepared by Officer Peters if they wish to call him as an expert witness. However, the USCA did not reach the same conclusion with respect to Detective Giroud. While the defendants conceded that Giroud was an expert witness, not all expert witnesses need provide an expert report. By exclusion, Rule 26(a)(2)(B) contemplates that individuals who are employed by a party and whose duties do not regularly involve giving expert testimony need not provide an expert report. The USCA found no evidence in the record that the duties of Giroud, who was employed by the LAPD, regularly involved giving expert testimony. However, on the record on appeal, the USCA could not determine whether Rule 26(a)(2)(B) applied to him. The USCA thus left it to the district court on remand to determine whether Rule 26(a)(2)(B) requires the defendants to provide the plaintiffs with an expert report prepared by Giroud. The USCA affirmed the district court's dismissal of the plaintiffs' case against Detective Hickman and of the plaintiffs' Sec. 1983 claim against Detective Rains. It reversed the grant of judgment as a matter of law as to Detectives Roberts and Park. It reversed in part the denial of the plaintiffs' in limine motions. B. Fletcher (author) and N.R. Smith, Circuit Judges, and King, District Judge. N. Brestoff of Valencia, CA, for the plaintiffs-appellants; R. Delgadillo of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) NATIVE AMERICAN LAW: Cachil Dehe Band of Wintun Indians v. California Gambling Control Comm., 06-16145 (9th Cir. Aug. 8, 2008). This appeal concerns the joinder requirements of Fed. R. Civ. Proc. 19 and their effect on litigation brought by an Indian tribe engaged in casino gaming. The Cachil Dele Band of Wintun Indians of the Colusa Indian Community ("Colusa") entered into a gaming compact with California in 1999. Colusa brought this action for declaratory and injunctive relief against the State, its Governor, and the California Gambling Control Commission (collectively "the State"). It challenged the Commission's interpretation of the compact and the Commission's assumption of authority to administer unilaterally the licensing of electronic gaming devices. The district court concluded that the many other Indian tribes that had entered into identical gaming compacts with the State in 1999, as well as California's non-gaming tribes, were required parties to this action. Because Indian tribes enjoy sovereign immunity and the action could not proceed in their absence, the district court granted the state's motion for judgment on the pleadings. Colusa appealed. Finding that the absent tribes were not required parties to this action, the USCA reversed the district court judgment (with one minor exception) and remanded for further proceedings. Canby (author), Kleinfeld, and Bybee, Circuit Judges. G. Forman of San Rafael, CA, for the appellant; DAG C. Murphy of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) NATIVE AMERICAN LAW: Navajo Nation v. U.S. Forest Service, 06-15371 (9th Cir. Aug. 8, 2008). In this case, American Indians asked the USCA to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. The plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. At issue was whether this government approved use of artifi-cial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 ("RFRA"). The USCA held that it did not, and affirmed the district court's denial of relief on all grounds. Dissenting, Judge Fletcher noted that the RFRA was passed to protect the exercise of all religions, including the religions of American Indians. If their land-based exercise of religion is not protected by RFRA in this case, Judge Fletcher said he could not imagine a case in which it would be. He added that the majority as effectively read American Indians out of RFRA. Kozinski, Pregerson, O'Scannlain, Rymer, Kleinfeld, Silverman, W. Fletcher (dissenting), Fisher, Clifton, Bea (author), and Ikuta, Circuit Judges. H. Shanker of Tempe, AZ, for the plaintiffs-appellants; C. Stetson of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) IMMIGRATION: Sowe v. Mukasey, 06-72938 (9th Cir. Aug. 19, 2008). Sowe, a native and citizen of Sierra Leone, appealed to the BIA from the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He presented evidence to the IJ that he and his family were persecuted by the Revolutionary United Front. On appeal, the USCA denied Sowe's application for withholding of removal and for protection under CAT. The evidence he relied upon to show that he was tortured was the same evidence he cited in support of his asylum claim. However, just as changed country conditions can defeat an asylum claim, they can defeat a claim for CAT protection. As in the asylum context, Sowe's arguments did not establish that the conditions in Sierra Leone have remained stagnant. The BIA's conclusion that Sowe would not be tortured because conditions in Sierra Leone have changed was supported by substantial evidence. The USCA remanded his application for asylum to the BIA for it to determine his eligibility pursuant to 8 CFR Sec. 1208.13(b)(1)(iii)(A). Finally, the USCA denied Sowe's request for attorneys' fees as premature. Alarcon (author), Graber, and Rawlinson, Circuit Judges. M. Nerheim of Seattle, WA, for the petitioner; M. Guyton of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION: Castro de Mercado v. Mukasey, 06-70361 (9th Cir. Aug. 21, 2008). At issue here was whether the USCA had jurisdiction to review the IJ's decision that the removal of a husband and wife would not impose an "exceptional and extremely unusual hardship" on their four U.S.-born children and the husband's elderly parents, both of whom have legal status to reside in the United States. The wife entered the U.S. without inspection in 1990 and the husband entered without inspection in 1989. The hus-band's parents were sponsored by his brother, a U.S. citizen. In 2004, the Department of Homeland Security charged the husband and wife with removability as aliens present in the U.S. without admission or parole under 8 USC Sec. 1182(a)(6)(A)(i). They conceded the charges but sought the cancellation or removal, arguing that their departure would impose an "exceptional and extremely unusual hardship" on their children and parents. In 2005, an IJ denied their applications, acknowledging that their removal would impose a hardship on their relatives, but concluding that such hardship did not rise to such an extreme level as to warrant relief. The IJ granted their alternative applications for voluntary departure. The BIA affirmed without opinion. The USCA dismissed the Mercados' appeal for lack of jurisdiction. Even if the Mercados could demonstrate that the IJ misunderstood the support Sec. 1183a requires the husband's brother to provide, their claim is simply an argument that the IJ underestimated the hardship their removal would cause. The USCA lacked jurisdiction over such a question. Thompson, O'Scannlain (author), and Tallman, Circuit Judges. J. Mbacho of El Centro, CA, for the petitioners; C. Cantor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) IMMIGRATION: Cui v. Mukasey, 05-72185 (9th Cir. Aug. 19, 2008). Cui, a native and citizen of China, petitioned for review of a final order of the BIA affirming an IJ's ruling that pretermitted Cui's application for withholding of removal and relief under the Convention Against Torture ("CAT"). At issue was whether the IJ abused his discretion in refusing to grant Cui's motion for a con-tinuance so that she could resubmit fingerprints for a background security check. The USCA granted relief and remanded. Because of the IJ's arbitrary invocation of an ambiguous rule as to which Cui had no notice, Cui was deprived entirely of an opportunity to present her case. As a result of the IJ's decision to deny the continuance, Cui's claims for withholding of removal and CAT relief were pre-termitted before she could present any evidence to support them. The factors considered by the USCA-the importance of the evidence excluded, the reasonableness of the immigrant's conduct, the inconvenience to the immigration court, and the prior continuances-strongly militate in favor of Cui. Pregerson (author), Archer, and Wardlaw, Circuit Judges. W. Kiang of San Gabriel, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. ( (Download the full text of this decision at www.ce9.uscourts.gov/)

34) IMMIGRATION: Lopez-Rodriguez v. Mukasey, 06-70868 (9th Cir. Aug. 8, 2008). The petitioners sought review of a decision of the BIA upholding an order of the IJ removing them to Mexico. They argued that the IJ and BIA erred in denying their joint motion to suppress their Forms I-213 (Record of Deportable / Inadmissible Alien) and a sworn statement by one of them, because the evidence contained in these documents was obtain by egregious violation of their Fourth Amendment rights. The USCA agreed that the evidence should have been suppressed. Because the government did not introduce any other evidence tending to show the petitioners' alienage, the USCA granted the petition for review. It reversed the BIA's decision and remanded with instructions to dismiss the removal pro-ceedings against the petitioners. Judge Bybee concurred in the majority opinion but wrote separately to caution that USCA precedent has set it on a collision course with the Supreme Court. INS v. Lopez-Mendoza announced a straightforward rule: the exclusionary rule does not apply in civil deportation proceedings to suppress evidence obtained in violation of the Fourth Amendment. 468 US 1032 (1984). The Supreme Court determined that the high costs of the exclusionary rule rendered it too costly to apply in immigration proceedings. The exclusionary rule improves the behavior of law enforcement even as it stymies the enforcement of the law, and Americans of all sensibilities continue to debate its merits. Judge Bybee thought that USCA caselaw seemed destined to import the exclusionary rule, with all of its attendant costs, back into immigration proceedings, after the Supreme Court has taken it out. At some point, he thought, the Ninth Circuit may wish to revisit its position. Canby (author), Bybee (concurring), Circuit Judges, and Quackenbush, District Judge. S. O'Connell of San Diego, CA, for the petitioners; A. Poczter of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) IMMIGRATION: Choin v. Mukasey, 06-75823 (9th Cir. Aug. 12, 2008). On December 4, 1998, Choin, a native and citizen of Russia, arrived in the U.S. with her two children on a K visa as the fiancée of U.S. citizen Tapia. Choin and Tapia were married on February 20, 1999. On April 14, 1999, Choin applied to adjust her status to that of a lawful permanent resident. On April 9, 2001, five days short of two years from the date Choin filed her application, and while she was still waiting to have an interview with the INS on her application, Choin and Tapia were divorced. On August 27, 2001, the INS denied Choin's application for adjustment of status because of her divorce. The Department of Homeland Security subsequently began removal proceedings against her. The IJ ordered her removed and the BIA dismissed her appeal. The USCA granted the petition. It found nothing in the plain language of INA Sec. 245(d) suggesting that an application that was valid when submitted should be automatically invalid when the petitioner's marriage ends by divorce two years later. The purpose and context of Sec. 245(d) also did not support the government's reading of the statute that re-quires the automatic removal of immigrants whose marriages end in divorce while their application for adjustment of statute languishes in the agency's file cabinet. The USCA concluded that the BIA's reading of Sec. 245(d) was incorrect. Goodwin, Pregerson (author), and D.W. Nelson, Circuit Judges. D. Ungar of San Francisco, CA, for the petitioner; A. Nicastro of Washington, DC, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) IMMIGRATION: Romero-Ruiz v. Mukasey, 06-74494 (9th Cir. Aug. 13, 2008). At issue on this petition was whether an immigrant who did not have lawful permanent resident status at the time of his mother's naturalization is eligible for derivative citizenship. The USCA concluded that he was not and denied the petition. Trott and Thomas (author), Circuit Judges, and Hogan, District Judge. V. Badrinath of Tucson, AZ, for the petitioner; L. Fascett of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) IMMIGRATION: Dzyuba v. Mukasey, 06-74372 (9th Cir. Aug. 25, 2008). Dzyuba, a citizen of the former USSR was born in Georgia. Seven years later, he and his family traveled to the Ukraine. After suffering what he considered persecution due to his Pente-costal religion, he left the Ukraine-when it was still part of the USSR-in July 1991 to emigrate to the United States. Two years after entry as a refugee, the U.S. granted him legal permanent residence. However, when he applied for naturalization in 2002, a Department of Homeland Security officer arrested him on the basis that he was removable from the U.S. for two convictions for crimes involving moral turpitude, 8 USC Sec. 1227(a)(2)(A)(ii); a conviction for an aggravated felony, Sec. 1227(a)(2)(A)(iii); and a conviction for a crime involving domestic violence, Sec. 1227(a)(2)(I)(i). Conceding removability, Dzyuba applied for withholding of removal and protection under the Convention Against Torture. The BIA determined that Dzyuba should be removed to the Ukraine pursuant to 8 USC Sec. 1231(b)(2)(E)(i). It based its holding on a finding that Dzyuba entered the U.S. with an Ukranian passport. The USCA vacated and remanded. Substantial evidence did not support the BIA's finding. Rather, the passport in the record reflects that Dzyuba entered the U.S. with a passport issued by the USSR and stamped with the date of his entry to the U.S., July 5, 1991. Because the BIA relied on this erroneous finding when applying Sec. 1231(b)(2)(E)(i), it failed to address Dzyuba's novel legal question: whether the Ukraine, as of the date of Dzyuba's entry, qualified as a "country" from which he was admitted, as the term is used in the Immigration and Nationality Act. The question the BIA must address in the first instance is whether "country" as used in the INA, requires an independent political entry or encompasses a non-sovereign region within another sovereign. Wardlaw, Clifton, and N.R. Smith, Circuit Judges. Per Curiam. V. Dobrin of Seattle, WA, for the petitioner; A. Bosque of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) IMMIGRATION: Doissaint v. Mukasey, 06-73218 (9th Cir. Aug. 18, 2008). The petitioner, a Haitian citizen, entered the U.S. in 1992. He was granted asylum in 1993 and became a lawful permanent resident in 1995. In 2000, a jury convicted him on three counts of second-degree assault under Oregon law. He was sentenced to 70 months' imprisonment. Upon release from prison the government placed him in removal proceedings. He applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The IJ ruled that he was statutorily ineligible for asylum or withholding of removal because he had conceded removability as an aggravated felon. The IJ denied the CAT claim because he did not believe that the petitioner was credible and concluded that he had not shown a "clear probability" of a risk of torture if returned to Haiti. The BIA dismissed the appeal, ruling that the petitioner did not contest on appeal the denial of his application for cancellation of removal or his request for protection under CAT. The BIA thus deemed those issues abandoned and did not address them. The BIA then proceeded to discuss and reject the merits of the petitioners' claims for asylum and withholding of removal. The petitioner sought review of the BIA's order dismissing his appeal (No. 06-73218). In connection with that petition, he conceded that he is removable and ineligible for asylum and withholding of removed, but he challenged the BIA's denial of his CAT claim. The petitioner also sought review of the BIA's order denying his motion to reopen (No. 06-75390). The USCA granted review in 06-73218, but dismissed 06-75390 as moot. The BIA could not, as a procedural shortcut, deny the petitioner's motion to reopen and proceed as if its legal error had never occurred. Alarcon (author), Graber, and Rawlinson, Circuit Judges. C. Strawn of Seattle, WA, for the petitioner; D. Lefort Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) IMMIGRATION: Zhao v. Mukasey, 07-75041 (9th Cir. Aug. 26, 2008). Zhao and Duan petitioned for review of the BIA's denial of their asylum claims. They are a married couple from China and practitioners of Falun Gong, a spiritual practice banned by the Chinese government. The USCA held that the petitioners are eligible for asylum because the evidence, especially when viewed in light of Zhou v. Gonzales, 437 F.3d 860 (9th Cir. 2006), and Zhang v. Ashcroft, 388 F.3d 713 (9th Cir. 2004), compels the conclusion that they have established a well-founded fear of future persecution. The USCA found it unnecessary to determine whether Zhao experi-enced past persecution or whether members of the Falun Gong movement were eligible for asylum under a theory of pattern or practice of persecution. Reinhardt (author), Miner, and Berzon, Circuit Judges. K. Long of Monterey Park, CA, for the petitioner; G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) IMMIGRATION: de Rincon v. Dept. of Homeland Security, 04-15411 (9th Cir. Aug. 21, 2008). De Rincon, a native and citizen of Mexico, first entered the U.S. in 1995. In 1997, she married a lawful permanent resident; the two had a daughter born in Las Vegas about that time. In 1999, de Rincon traveled to Mexico to visit her ailing mother. When she returned to the U.S. in later April 1999, she was detained at the border. After being placed in secondary inspection, she was interviewed by in Immigration Officer on April 23, 1999 and admitted that she had falsely claimed to be a U.S. citizen in an attempt to gain entry into the country. She also ad-mitted that she knew it was illegal to misrepresent her citizenship, and that she had no documentation to gain lawful entry. Based on these statements, an expedited removal order was issued, deeming her removable as an alien who had falsely attempted to gain admission as a U.S. citizen. Within days of her expedited removal, she re-entered the U.S. unlawfully and returned to her husband and daughter in Las Vegas. Between 1999 and 2002, she and her husband purchased a home in Las Vegas, and had another child. Other than her unlawful entries, she has been law-abiding and productive. She was denied adjustment of status based on her false claim of citizenship, a non-waivable ground for removal. She was removed from the U.S. that evening. The USCA dismissed the appeal for want of jurisdiction. 8 USC Sec. 1252(e) largely divests the USCA of jurisdiction to review the merits of an expedited removal order-an order that summarily removes an alien who attempts to gain entry into the U.S. by falsely claiming citizenship. Schroeder, Walker, and N.R. Smith (author), Circuit Judges. J. Garde of Las Vegas, NV, for the petitioner; L. Perez of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) NO-FLY LISTS: Ibrahim v. DHS, 06-16727 (9th Cir. Aug. 18, 2008). Ibrahim, a Malaysian Muslim who studied in the U.S. un-der a student visa, tried to fly from San Francisco to Malaysia, but when she presented her ticket at the United Air Lines counter, the airline discovered her name on the federal No-Fly List. It refused to let her board and called the police. The police called the Transpor-tation Security Intelligence Service, where an employee named Bondanella instructed them to prevent Ibrahim from flying, to detain her for further questioning and to call the FBI. Without explaining their reason, the police then handcuffed Ibrahim in front of her 14-year old daughter and took to the police station. Two hours later, the FBI told the police to release her. The following day, she again attempted to fly from San Francisco to Malaysia. This time she was permitted to do so, but only after "enhanced" searches. She sought an injunction directing the government to remove her name from the No-Fly List and to cease certain policies and procedures imple-menting the No-Fly List. The district court dismissed her claims against the federal government, the United Air Lines defendants and Bondanella. The USCA affirmed in part, reversed in part, and remanded. It held that because putting Ibrahim's name on the No-Fly List was an "order" of an agency not named in 49 USC Sec. 46110 and because the statute says nothing about "intertwining," escapable or otherwise, the district court retained jurisdiction to review that agency's order under the Administrative Procedure Act. However, all of Ibrahim's Sec. 1983 claims failed because none of the appellees acted under color of state law. Except for Bondanella, Ibrahim sued the federal officials in their official capacities. These officials, like their employers, cannot be liable for state-law torts unless Congress has waived the United States' sovereign immunity. Dissenting, Judge N.R. Smith thought that Ibrahim's claims against the Terrorist Screening Center constituted a challenge to an order of the Transportaiton Security Administration and were thus subject to Sec. 46110(a), depriving the district court of jurisdiction over claims against that agency. At the very minimum, her claims against the Terrorist Screening Center were "inescapably intertwined" with an order of the Transportation Security Administration and thus still subject to Sec. 46110(a). Kozinski (author), N.R. Smith (dissenting), Circuit Judges, and S.J. Otero, District Judge. M. Elzankaly of San Jose, CA, for the appellant; J. Waldman of Washington, DC, S. Mayo of Los Angeles, CA, and R. Grotch of Redwood City, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) ALIEN SMUGGLING: USA v. Hernandez-Orellana, 06-50584 (9th Cir. Aug. 20, 2008). The issue here was left open in USA v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc): to explain what actions render a co-conspirator criminally liable for an alien smuggling conspiracy for profit even though there is no evidence that the conspirator herself committed an actual overt act of smuggling aliens across the border but her co-conspirators did. The USCA held that a reasonable jury could have determined that Drewry and Hernandez-Orellana participated in a conspiracy to bring aliens from Mexico to the U.S. for financial gain in violation of 18 USC Sec. 371 and 8 USC Sec. 1324. The en banc decision in Lopez, decided during the pendency of the present case, compelled the reversal of Drewry's and Hernandez's convictions on the substantive "bringing to" counts, 8 USC Sec. 1324(a)(2)(B)(ii). The USCA thus affirmed in part and reversed in part the judgment of the district court. Because it was unclear whether the district court would have imposed the same sentence in light of it decision to reversed the substantive "bringing to" counts, the USCA also remanded for resentencing. O'Scannlain and Tallman (author), Circuit Judges, and Singleton, District Judge. S. Lubliner of Petaluma, CA, and D. Zugman of San Diego, CA, for the appellant; AUSA W. Narus of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) HUD-INSURED LOANS / FALSE GIFT LETTERS: USA v. Peterson, 07-50120 (9th Cir. Aug. 13, 2008). Defendants Paul and William Peterson ran a home building business in California. They subsidized down payments to home buyers and then submitted misleading gift letters to the Department of Housing and Urban Development ("HUD") falsely stating that a family member or friend of the buyer had provided the money for the down payment. The defendants appealed their jury convictions for: 1) causing false material statements to be made in a matter within the jurisdiction of an agency of the U.S., in violation of 18 USC Sec. 1001; 2) aiding and abetting in the violation of Sec. 1001, in violation of 18 USC Sec. 2; and 3) conspiring to make such false statements, in violation of 18 USC Sec. 371. They also appealed the district court's order of restitution in the amount of $1,258,775, imposed pursuant to 18 USC Sec. 3663A. The USCA affirmed. It held that although it would be preferable for district courts to use a definition of materiality track-ing the language approved in USA v. Gaudin, 515 US 506 (1995), the district court here did not commit plain error by giving the jury instruction it gave. It also found that the false gift letters and the source of the down payment for HUD-insured loans were material to HUD. Finally, it held that the defendants' actions were the actual and proximate cause of HUD's losses. It thus affirmed the restitution order for the full amount of HUD's loss. Trott (author), Wardlaw, and Fisher, Circuit Judges. W. Genego of Santa Monica, CA, for the appellants; AUSA W. Crowfoot of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

44) WILLFUL FAILURE TO PAY TAXES: USA v. Easterday, 07-10347 (9th Cir. Aug. 22, 2008). Easterday appealed his conviction for willful failure to pay over employee payroll taxes, in violation of 26 USC Sec. 7202. He sought an "ability to pay instruction" in order to contend that his failure to pay over the taxes was not "willful," because he had spent the money on other business expenses and thus could not pay the taxes when due. The district court refused to give the instruction, and Easterday was convicted and sentenced to 30 months in prison. The requested instruction was drawn from a portion of USA v. Poll, 521 F.2d 329 (9th Cir. 1975), that the Circuit has never subsequently cited favorably in the context of a prosecution for failure to pay taxes. Moreover, the holding of Poll that formed the basis for the proposed instruction was effectively eradicated by subsequent Supreme Court authority. Easterday maintained that Poll was binding because the Circuit has never expressly overruled it. The district court held that Poll was no longer good law. The USCA agreed. Poll's requirement that the government prove that the taxpayer had sufficient funds to pay the tax was prem-ised on a definition of willfulness that included some element of evil motive. The Supreme Court subsequently rejected any such defi-nition of willfulness in the tax statutes. USA v. Pomponio, 429 US 10, 12 (1976) (per curiam). "Willful" in the tax context means a voluntary, intentional violation of a known legal duty. USA v. Cheek, 498 US 192, 201-02 (1991). In other words, if you know that you owe taxes and do not pay them, you have acted willfully. While Poll has continued to be referred to occasionally in other contexts, principally in the child support area, it is not good tax law. Dissenting, Judge Smith agreed that Poll was bad tax law, but thought that the USCA had to follow Poll or make a sua sponte en banc call. He disagreed with the majority's approach to write around Circuit precedent in order to avoid a result it does not like. Schroeder (author) and N.R. Smith (dissenting), Circuit Judges, and Fairbank, District Judge. G. Davis of Washington, DC, for the appellee; D. Riordan of San Francisco, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) CHILD PORNOGRAPHY: USA v. Goddard, 07-50402 (9th Cir. Aug. 11, 2008). Goddard, who was convicted of possession of child pornography in violation of 18 USC Sec. 2252(A)(a)(5)(B), challenged certain special conditions of his supervised release, in-cluding conditions that restricted his use of computer-related devices, those with whom he may associate, and use of a post office box. The parties agreed to strike portions of several conditions where the written judgment differed from the oral pronouncement. The USCA thought that two of the computer conditions were problematic if broadly construed, because they could be read to prohibit all use of a computer except for work and make the use of a work computer impracticable. However, these conditions involve no greater a deprivation of liberty than reasonably necessary if narrowly construed to allow personal computer use as approved by the probation officer and not to condition routine or automatic software additions, deletions, upgrades, updates, installations, repairs, or other modi-fications on prior approval. 18 USC Sec. 3583(d)(2). So construed, the USCA approved the computer conditions and conclude that the remaining conditions were also reasonable. Hall, Rymer (author), and Kleinfeld, Circuit Judges. DFPD E. Newman of Los Angeles, CA, for the appellant; AUSA J. Corbet of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) SENTENCING / ARSON: USA v. Tankersley, 07-30334 (9th Cir. Aug. 12, 2008). From 1996 through 2001, the Earth Liberation Front and the Animal Liberation Front committed arson and other crimes against government and private entities in several Western states. The groups' membership changed over the lifetime of the conspiracy but included as many as 16 conspirators. Tankersley actively participated in both an attempted and a subsequently completed arson that destroyed the headquarters of U.S. Forest Industries, a private timber company in Medford, Oregon. Tankersley appealed her 41-month sentence imposed follower her guilty plea to a three-count Information charging her with conspiracy to commit arson and destruction of an energy facility in violation of 18 USC Sec. 371, aiding and abetting attempted arson in violation of 18 USC Secs. 2 and 844(i), and aiding and abetting arson in violation of Sec. 844(i). The district court imposed a sentencing enhancement for the commission of a "federal crime of terrorism," pursuant to Sentencing Guideline Sec. 3A1.4 (2000), against several of her co-defendants who targeted government property. It did not impose this enhancement on Tankersley because she targeted only private property. It did, however, impose a 12-level upward departure pursuant to Guideline Sec. 5K2.0, which had the effect of making her base offense level the same as if she had been subject to the terrorism en-hancement. On appeal, Tankersley maintained that her sentence was unreasonable and that the district court abused its discretion by imposing the upward departure. She argued that the terrorism enhancement should not apply to her because she did not target government property, and that the 12-level upward departure amounts to an imposition of the terrorism enhancement. She argued that the district court was not empowered to depart upward based on what she viewed as just its disagreement with congressional policy concerning the applicability of the terrorism enhancement, and that there were insufficient aggravating circumstances to remove her offense from the heartland of arson offenses. At issue on appeal was whether a sentence outside the applicable Guidelines range is per se unreasonable when it is based on the district court's efforts to achieve sentencing parity between defendants who engaged in similar con-duct: with some targeting government property and who were properly subject to the terrorism enhancement, and others targeting only private property who were not. The USCA affirmed. Such a sentence is not per se unreasonable and that the district court did not clearly err by declining to apply a four-level downward adjustment for a minimal role in the offense. In light of the district court's proper application of the statutory factors set forth in 18 USC Sec. 3553(a), the USCA held that Tankersley's 41-month sentence was reasonable. Tallman (author), Clifton, and N.R. Smith, Circuit Judges. G. Johnson of Denver, CO, for the appellant; AUSA S. Peifer of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) INEFFECTIVE ASSISTANCE: USA v. Gamba, 06-35021 (9th Cir. Aug. 28, 2008). Gamba was convicted and sentenced for witness tampering in violation of 18 USC Sec. 1512(b). He appealed the district court's denial of his petition for relief filed under 28 USC Sec. 2255. Specifically, he argued that the district court erred in denying his Sec. 2255 motion because it did not find his appel-late counsel ineffective when he failed to challenge on appeal the magistrate's jurisdiction to preside over closing argument without Gamba's personal consent. The USCA affirmed because the magistrate had proper jurisdiction over closing argument at Gamba's trial. Defense counsel may waive a defendant's right to have an Article III judge conduct closing argument without the defendant's express, personal consent where the decision is one of trial tactics or strategy. Goodwin, Fisher, and M.D. Smith (author), Circuit Judges. D. Wilson of Kalispell, MT, for the appellant; AUSA J. Van de Wetering of Missoula, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) HABEAS CORPUS: Wooten v. Kirkland, 06-56575 (9th Cir. Aug. 26, 2008). Wooten was convicted of murder in the first de-gree in California state court. After unsuccessful direct appeals, he sought a writ of habeas corpus in federal district court. The district court dismissed his petition because of his failure to exhaust all issues that were the subject of the petition. Wooten appealed, claiming that he was entitled to a stay of his petition under Rhines v. Weber, 544 US 269 (2005), because he had "good cause" for his failure to exhaust. Specifically, he argued that he was "under the impression" that his counsel had included all the issues raised before the Cali-fornia Court of Appeal in his petition to the California Supreme Court. The USCA affirmed, finding that the district court did not abuse its discretion in concluding that Wooten did not have "good cause" for failing to exhaust his cumulative error claim. As a result, the USCA did not need to reach the other two factors in the Rhines test. . Canby, Bybee, and M.D. Smith (author), Circuit Judges. J. Price of Santa Monica, CA, for the petitioner; DAG C. Henry of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) HABEAS CORPUS: McMurtrey v. Ryan, 03-99002 (9th Cir. Aug. 21, 2008). Arizona appealed the district court's grant of habeas corpus relief to McMurtrey in this pre-AEDPA case. The district court held that McMurtrey's due process rights were violated when the Arizona trial court failed to hold a hearing to determine whether he was competent to stand trial, despite considerable evi-dence suggesting that he was not. This violation, the district court held, was not cured by a subsequent hearing. It also found that McMurtrey's trial counsel rendered ineffective assistance because his failure to renew a request for a competency hearing regarding McMurtrey's competence at the time of trial was objectively unreasonable. The USCA agreed that there was substantial evidence, par-ticularly by the time of sentencing, to suggest that McMurtrey's due process rights were violated when the trial court failed to hold a hearing on his competency to stand trial and be sentence. McMurtrey's memory problems, erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a rea-sonable doubt as to McMurtrey's competence to stand trial. A competency hearing held 13 years after trial was insufficient to cure this due process violation. Pregerson (author), W. Fletcher, and Bybee, Circuit Judges. G. Kuykendall of Phoenix, AZ, for the petitioner; AAG P. Nigro for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

50) PRISONERS' RIGHTS: Ngo v. Woodford, 037-16042 (9th Cir. Aug. 21, 2008). Ngo, a prison inmate serving a life sentence, was placed in administrative segregation on October 26, 2000, for inappropriate activity with a prison church volunteer. At a Decem-ber 22, 2000, hearing, the prison classification committee informed Ngo that he would be released from administrative segregation the next day, but that he could not participate in prison "special programs." Three months later, on March 20, 2001, Ngo wrote to Deputy Warden Kane, asking whether he could play on the prison's baseball team and whether he was "entitled to participate in any and all special programs." Kane explained that Ngo could participate in "any recreational programs," and that the prison's community resources manager was authorized "to review [Ngo's] request to participate in any other program." On June 18, 2001, Ngo submitted a formal appeal to the prison's Appeals Coordinator. The appeal was denied as untimely under Cal. Code Regs. tit. 15, Sec. 3084.6(c), which requires prisoners to "appeal within 15 working days of the event or decision being appealed." Ngo resubmitted his appeal one weak later, arguing that his exclusion from special programs was a continuing violation of his constitutional rights. The next day the appeal was again rejected as untimely. Ngo sued in federal district court under 42 USC Sec. 1983, alleging First Amendment and due process violations. The district court dismissed for failure to exhaust administrative remedies. On an earlier appeal, the USCA reversed, holding that Ngo was not required to exhaust administrative remedies. The Supreme Court then reversed the USCA, explaining that the Prison Litigation Reform Act ("PLRA") requires "proper exhaustion of administrative remedies," Woodford v. Ngo, 126 S.Ct. 2378, 2382 (2006), so "a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court." At issue on the current appeal was whether Ngo exhausted his administrative remedies. He had ample notice: At the December 22, 2000 hearing, he was informed that he would be barred from all special programs after being released from administrative segregation. This restriction was presumptively permanent. If a warden bars a prisoner from activities and does not set a date when this restriction lapses, the restriction remains in force until the prisoner is trans-ferred or the warden reconsiders. Neither Deputy Warden Kane nor the prison classification committee told Ngo that the restriction was temporary. Indeed, Ngo's March 20, 2001, letter recognized that the restriction was still in effect when he asked for permission to play on the baseball team and participate in special programs. Kane partially rescinded the restriction and allowed Ngo to participate in recreational activities, but this did not change the fact that Ngo had notice on December 22 that he was subject to an indefinite restric-tion. If Ngo wanted to challenge this restriction, he needed to appeal within 15 working days of the date he learned of it. Having failed to do so, he did not exhaust his administrative remedies and could not sue in federal court. Judge Pregerson concurred in the determination that Ngo did not exhaust his administrative remedies, as he had not challenged the decision by prison authorities until three months after the decision was made. But, he wrote separately to note his concerns about the constitutionality of California's prisoner grievance process. It was not clear to him that California's system provides a meaningful opportunity for prisoners to raise meritorious grievances. He focused on two problems with the process: (1) the requirement that appeals must be filed within 15 days, and (2) the lack of clarity about how appeals should be filed. Kozinski (author), Pregerson (concurring), and Bybee, Circuit Judges. M. Feder of New York, NY, for the plaintiff-appellant; DAG K. Roost of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)