1) SECURITIES FRAUD: In re Heritage Bond Litigation, 05-55072 (9th Cir. Oct. 1, 2008). This case arose from the settlement of securities fraud cases involving the sale of municipal bonds for the renovation and construction of health care facilities. The district court approved multiple settlement agreements between different parties pursuant to Fed. R. Civ. Proc. 23, California Code of Civ. Proc. 877.6, and the Private Securities Litigation Reform Act of 1994 ("PSLRA"). In doing so, it issued five orders barring non-settling defendants from bringing against settling defendants any future claims arising out of or related to any of the transactions or occurrences alleged. Talley, a non-settling defendant, objected to the scope of these orders and sought to pursue independent state law claims against several of the settling defendants. Applying the "interrelatedness" test from Wisconsin Investment Board v. Ruttenberg, 300 F. Supp. 2d 1210 (N.D. Ala. 2004), the court determined that Talley's claims were related to and arose out of the litigation involving the same bonds and, that the orders specifically barred his claims. On appeal, Talley challenged the scope of the bar orders and argued that under federal common law, the PSLRA, and Sec. 877.6, the orders should have been limited to claims for contribution and indemnity or disguised claims for such relief. Talley conceded that claims for indemnity, contribution, and comparative fault were appropriately barred by the bar orders. Still, he contested the orders to the extent they barred his allegedly independent state law claims. The appellees claimed that the district court had broad authority to issue bar orders and that the USCA should apply the "interrelatedness" test to determine that Talley's state law claims arose from the same core facts as those extinguished by the district court's approval of the settlement agreement. The USCA vacated the orders and remanded for modification. It adopted the approach taken in Gerber v. MTC Electronics Technologies, 329 F.3d 297 (2d Cir. 2003), in limiting the scope of bar orders issued as part of a securities fraud class action settlement, and held that bar orders issued pursuant to the PSLRA or Sec. 877.6 can only bar claims for contribution and indemnity or disguised claims for such relief. Independent claims-those where the injury is not the non-settling defendant's liability to the plaintiff-may not be barred. The orders issued by the district court did not pass muster under the PSLRA or Sec. 877.6. As they were impermissibly broad, they had to be vacated. Fisher and Paez (author), Circuit Judges, and Robart, District Judge. R. Dreher of San Diego, CA, for the appellant; D. Harkins of Irvine, CA, and G. Templeton of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

2) SHAREHOLDER DERIVATIVE ACTIONS: Potter v. Hughes, 06-56082 (9th Cir. Oct. 10, 2008). In this shareholder's derivative action, Potter alleged that the managers and directors of Public Storage ("PS"), wrongfully managed PS. The district court dis-missed the action on the grounds that Potter failed to make an adequate demand on PS's Board of Directors before filing her suit. The USCA affirmed. Potter's allegations did not create a reasonable doubt as to the Board's overall honesty or independence, and she was not excused from the demand requirement. Quoting Greenspun v. Del E. Webb Corp., 634 F.2d 1204, 1210 (9th Cir. 1980), the USCA explained that "The task of demanding action under Rule 23.1 is not onerous. No policy recommends eviscerating the demand requirement as plaintiff would have us do." Dissenting, Judge Ikuta noted that Potter had filed a state law derivative shareholder suit on behalf of nominal defendant PS. The district court dismissed her suit on the ground that her failure to name herself in the written demand presented by the plaintiffs to PS deprived her of standing to maintain this action under Fed. R. Civ. Proc. 23.1. On appeal, Potter argued that California law does not require her to identify herself by name in the written demand presented to the board of directors. Before addressing this open issue of California law, however, Judge Ikuta thought the USCA should recognize its "independent obliga-tion to inquire into the presence or absence of subject matter jurisdiction," In re Excel Innovations, Inc., 502 F.3d 1086, 1092 (9th Cir. 2007), and dismiss this case for want of subject matter jurisdiction. In bypassing this jurisdictional question, Judge Ikuta thought that the majority had strayed from the Supreme Court's direction in Steel Co. v. Citizens for a Better Env't, 523 US 83, 94 (1998) and Si-nochem Int'l Co. v. Malaysia Int'l Shipping Corp., 127 S.Ct. 1184, 1191 (2007), as well as from the Fifth Circuit's interpretation of these cases. See Rivera v. Wheth-Ayerst Labs., 283 F.3d 315, 319 n.6 (5th Cir. 2002). Wallace, Gould (author), and Ikuta (dissenting), Circuit Judges. E. Gergosian of San Diego, CA, for the appellants; D. Dinielli of Los Angeles, CA, and R. Spector of Irvine, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) BANKRUPTCY: Espinosa v. United Student Aid Funds, Inc., 06-16421 (9th Cir. Oct. 2, 2008). At issue here was whether a debtor may obtain discharge of a student loan by including it in a Chapter 13 plan, if the creditor fails to object after notice of the pro-posed plan. The USCA held that he could: long-standing Ninth Circuit law holds that student loan debts can be discharged by way of a Chapter 13 plan if the creditor does not object, after receiving notice of the proposed plan. The USCA found it highly unlikely that a creditor whose business it is to administer student loans would be misled by customary bankruptcy procedures or somehow be bam-boozled into giving up its rights by crafty student debtors. If the creditor fails to object, it is, the USCA said, with out a doubt the result of a careful calculation that this course is most likely to yield repayment of at least a portion of the debt. In such circumstances, bank-ruptcy courts have no business standing in the way. To this extent the USCA overruled cases such as In re Webber, 251 B.R. 554 (Bankr. D. Ariz. 2000). Kozinski (author), Tashima, and N.R. Smith, Circuit Judges. M. Meehan of Tucson, AZ, for the appellant; M. Wanslee of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) SECURITIES LAW: Thompson v. Paul, 06-15515 (9th Cir. Oct. 27, 2008). Thompson sued the defendants for alleged violations of Sec. 10(b) of the Securities Exchange Act of 1934, Rule 10b-b, and various provision of state law. The district court dismissed her Sec. 10(b) claim with prejudice under Federal R. of Civil Proc. 12(b)(6). After it entered final judgment on all of her claims, Thompson asked the court to certify a question of state law to the Arizona Supreme Court. The district court denied the request. On appeal, she argued that the district court erred by applying state law rather than federal law in dismissing her claim under Sec. 10(b). The USCA reversed the district court in part, holding that under the federal law applicable to her Sec. 10(b) claim, Thompson had stated a claim upon which relief could be granted. However, the USCA agreed with the district court's denial of Thompson's request to certify the question to the Arizona Supreme Court. W. Fletcher (author) and Bea, Circuit Judges, and Miller, District Judge. W. Balin of San Francisco, CA, for the appellant; H. Clyde of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) ENVIRONMENTAL LAW: Salmon Spawning & Recovery Alliance v. Gutierrez, 06-35979 (9th Cir. Oct. 8, 2008). At issue on this appeal was whether three conservation groups have standing to challenge the decision of federal agencies and officials to enter into, and remain a party to, the Pacific Salmon Treaty of 1999 (an effort by Canada and the United States to manage salmon populations originating in Alaska and the Pacific Northeast. The groups maintain that "take levels" permitted under the Treaty have allowed Canadian fisheries to over-harvest endangered and threatened salmon and steelhead. The district court dismissed all three of their claims for standing. The USCA affirmed the dismissal of the first and second claims, but reversed the district court in part because the groups have procedural standing to bring their third claim for relief. It remanded to the district court for it to determine whether attor-neys' fees under the Equal Access to Justice Act should be granted. Tashima, McKeown (author) and W. Fletcher, Circuit Judges. E. Redman of Seattle, WA, for the appellants; M. McKeown of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) ENVIRONMENTAL LAW: North Idaho Community Action Network v. U.S. Dept. of Trans., 08-35283 (9th Cir. Oct. 6, 2008). North Idaho Community Action Network ("NICAN") appealed the district court's grant of summary judgment in favor of the U.S. Dept. of Transportation, the Federal Highway Administration, and Idaho Transportation Department (collectively, the "Agencies"). NICAN challenged a proposed highway construction project on a portion of U.S. Highway 95 located in northern Idaho. NI-CAN maintained that the Agencies violated the National Environmental Policy Act ("NEPA") and Sec. 4(f) of the Department of Transportation Act. The USCA affirmed in part, reversed in part, and remanded with instructions. On the unique facts of this case, the USCA concluded that the scope of injunctive relief should be limited to precluding the Agencies from commencing construction of the remaining three phases of the Project until the Sec. 4(f) evaluation has been fully completed. T.G. Nelson, Hawkins, and Bybee, Circuit Judges. Per Curiam. M. Bishop of Helena, MT, for the appellant; AUSA D. Ferguson Boise, ID, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: American Bird Conservancy v. Federal Communications Commission, 06-15429 (9th Cir. Oct. 6, 2008). At issue here was whether an environmental group may employ the citizen-suit provision of the Endangered Species Act to challenge a FCC decision to issue licenses for seven communications towers in Hawaii. The USCA affirmed the district court's judg-ment dismissing the action for lack of subject matter jurisdiction. It added that its holding did not foreclose future judicial review of the licensing decisions at issue here. Nothing prevents American Bird from continuing to pursue its claims through the FCC's administrative process, obtaining an adverse final order, and challenging that order in the USCA. O'Scannlain (author), Tashima, and M.D. Smith, Circuit Judges. S. Sugarman of Santa Fe, NM, for the plaintiff; M. Gray of Washington, DC, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) PROPERTY / EASEMENTS: McFarland v. Kempthorne, 06-36106 (9th Cir. Oct. 2, 2008). McFarland maintained that the district court erred in granting the defendants' motion for summary judgment. He argued that he is entitled to an easement over Glacier Route 7 to access his property that is surrounded by Glacier National Park. Because McFarland could not claim a common-law ease-ment over federal land and because the National Park Service's denial of his permit request was neither arbitrary nor capricious, and was in accordance with governing law, the USCA affirmed the decision of the district court. McFarland was not entitled to an easement by necessity. Nor was an easement expressly granted in the original land patent implied through the Homestead Act or through McFarland's use of Glacier Route 7. Finally, the Park Service provided adequate explanation of the denial of McFarland's permit re-quest to allow the USCA to determine that it did not act arbitrarily, capriciously, or in violation of law. Alarcon, Graber, Rawlinson (author), Circuit Judges. R. Opsahl of Lakewood, CO, for the appellant; W. Lazarus of Washington, DC, for the appellees; W. Fried-man of Washington, DC, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) INSURANCE: Travelers Property Casualty Company of America v. ConocoPhillips Company, 06-15664 (9th Cir. Oct. 20, 2008). In these consolidated appeals, Travelers Property Casualty Company of America appealed from the district court's judgment in favor of Tosco Corporation and from its award of costs. Travelers maintained that Tosco breached the unambiguous language of the workers' compensation insurance policy that Travelers issued to Tosco. The USCA concluded that the subject provisions of the policy were unambiguous and, properly construed, supported Tosco's position that its waiver of the statutory credit in Cal. Labor Code Sec. 3600(b) did not breach them or the policy as a whole. The USCA thus affirmed the district court's judgment and its award of costs. Tashima (author) and Graber, Circuit Judges, and Timlin, District Judge. D. Capell of San Francisco, CA, for the plaintiff-appellant; J. Day of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) LABOR LAW / ARBITRATION: Granite Rock Company v. Intl. Brotherhood of Teamsters, 07-15040 (9th Cir. Oct. 22, 2008). Granite Rock sued Teamsters Local 287 and the Int'l Brotherhood of Teamsters ("IBT"), under Sec. 301 of the Labor Man-agement Relations Act ("LMRA"). It asserted claims relating to a collective bargaining agreement ("CBA"). Granite Rock sought remedies against Local 287 for breach of the CBA, and against IBT for tortious interference with the CBA between Granite Rock and Local 287. The district court dismissed the claim against IBT under FRCP 12(b)(6) for failure to state a claim. On appeal, at issue was the district court's denial of Local 287's motion to compel arbitration on the question of contract formation. The USCA reversed that ruling and remanded with instructions to compel arbitration on the entire dispute between Granite Rock and Local 287. It also affirmed the district court's judgment dismissing Granite Rock's claim against IBT. Gould (author) and Bea, Circuit Judges, and Sedwick, Dis-trict Judge. G. Mathiason of San Francisco, CA, for the appellant; J. Day of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) UNCLAIMED PROPERTY: Turnacliff v. Westly, 07-15287 (9th Cir. Oct. 15, 2008). Turnacliff, in his capacity as administrator of the Estate of Kathleen M. Dodd, appealed the district court's summary judgment in favor of defendant Westly, in his individual and official capacity as State Controller of the State of California, and his custodial capacity as administrator of the Unclaimed Property Fund ("Controller"). Turnacliff maintained that the Controller improperly calculated interest due to the Estate for the time that California held the Estate's unclaimed property. Turnacliff argued that when the Controller returned the unclaimed property to the Estate, with interest, he incorrectly construed California Code of Civil Procedure Sec. 15540(c) (amended 2002) by applying a single, statutorily-defined interest rate to the principal for the years that California held the property. Turnacliff argued that the Controller should have applied an average of various interest rates that California earned while holding the property. He further maintained that, if the Con-troller's construction and application of Sec. 1540 was correct, then the Controller's action ran afoul of the Takings Clause of the Fifth Amendment, because he did not pay to the Estate the actual interest the unclaimed property earned while California held it. On appeal, Turnacliff argued for the first time that the Controller violated the Takings Clause by failing to provide adequate notice to the Estate before acquiring the abandoned property. Exercising its discretion, the USCA declined to consider the last argument. It then affirmed the district court summary judgment in favor of the Controller, finding that the Controller correctly construed and applied Sec. 1540(c). The USCA added that, even if the facts were to implicate the Takings Clause, Turnacliff failed to show that the Estate was entitled to additional compensation. Thompson (author) and Wardlaw, Circuit Judges, and Bolton, District Judge. D. Tillotson of San Francisco, CA, for the plaintiff-appellant; E. Brown of Sacramento, CA, for the defendant-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) ELECTION LAW: Alaska Independence Party v. State of Alaska, 07-35186 (9th Cir. Oct. 6, 2008). Alaska requires political parties to nominate candidates for the state's general election ballot in a state-run primary, in which any registered member of a political party may seek the party's nomination. Nominees are then chosen by the vote of party-affiliated voters and any other voters whom the parties chose to let participate. The Alaska Independence Party and the Alaska Libertarian Party maintained that these laws burden their associational rights in violation of the First Amendment because they force them to associate with candidates who, they claim, are not members of their party or are not ideologically compatible with their party. The USCA held that Alaska's primary system is justified by compelling state interests and thus facially constitutional. D.W. Nelson, Tashima, and Fisher (author), Circuit Judges. K. Jacobus of Anchorage, AK, for the plaintiffs-appellants; M. Barnhill of Juneau, AK, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) ELECTION LAW / CAMPAIGN FINANCE REFORM: San Jose Silicon Valley Chamber of Commerce Political Action Committee. v. City of San Jose, 06-17001 (9th Cir. Oct. 14, 2008). The City of San Jose enacted a campaign finance reform measure, incorporating San Jose Municipal Code Sec. 12.06.310, which requires political organizations to collect no more than $250 per person for campaigning in certain local elections. Plaintiffs San Jose Silicon Valley Chamber of Commerce Political Action Committee and COMPAC Issues Fund, which are local political organizations, collected more than $250 per person and actively campaigned in a qualifying local election. The San Jose Elections Commission, the local governmental entity established by the City to enforce its campaign finance laws, investigated the plaintiffs' activities and concluded that they had violated Sec. 12.05.310. The Commission decided to issue a public reprimand and to assess a fine against the plaintiffs. After the Commission issued a public reprimand, but before it could assess the fine, the plaintiffs filed this 42 USC Sec. 1983 action in federal district court. The district court denied the defendants' motion for judgment on the pleadings, which asked the court to abstain under Younger v. Harris, 401 U.S. 37 (1971). The district court held that the contributions limit was unconstitutional and granted declaratory and injunctive relief to the plaintiffs. The USCA held that the district court was required to abstain under Younger. It thus vacated the judgment and remanded with instructions to dismiss the action. Wallace and Graber (author), Circuit Judges, and Schiavelli, District Judge. G. Rios of San Jose, CA, for the defendants-appellants; J. Sutton of San Francisco, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) CREDIT CARDS / CLASS ACTIONS: Hoffman v. Citibank (South Dakota), N.A., 07-55616 (9th Cir. Oct. 14, 2008). Hoffman appealed the district court's order compelling arbitration in her class action suit against her credit card company, Citibank (South Dakota), N.A. The district court found that Hoffman was party to an arbitration agreement that waived her right to proceed on a class basis. Applying South Dakota law-the law chosen in the credit card agreement-the district court enforced the class arbitration waiver and ordered Hoffman to proceed on a non-class basis. Nevertheless, the district court found substantial grounds for a difference of opinion regarding a controlling issue of law, "whether California law or South Dakota law should be used to determine the enforce-ability of the arbitration agreement," and issued an order for immediate appeal. The case was stayed without completion of discovery. The USCA granted permission for the appeal. Because it was persuaded that the district court's order compelling arbitration errone-ously relied on cases that did not properly apply California choice of law rues, the USCA remanded for a determination of whether California or South Dakota law applies to the class arbitration waiver. The USCA concluded that the district court erred because it did not apply California's choice of law analysis as articulated in Restatement Sec. 187(2) and Nedlloyd Lines B.V. v. Superior Court, 3 Cal. 4th 459 (1992), and more specifically because it did not address whether Citibank's class arbitration waiver, accompanied by a non-acceptance provision, is unconscionable under California law. Judge Trott concurred, but wrote separately to add some observa-tions designed to shed light on the underlying question: Is the arbitration agreement-including a class arbitration waiver-enforceable? California law, he noted, is far from settled and there are mixed signals from the California courts. Trott (concurring), Thomas and Fisher, Circuit Judges. Per Curiam. B. Kramer of Los Angeles, CA, for the plaintiff-appellant; J. Strickland of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) CIVIL ASSET FORFEITURE: Kim v. Real Property, 06-56158 (9th Cir. Oct. 3, 2008). At issue here was whether the Civil Asset Forfeiture Act of 2000 ("CAFRA") permits district courts to authorize ex parte extensions of the deadline to file civil forfeiture complaints. The USCA held that it does. It further held that, in the event of a dismissal of a civil forfeiture complaint by the court, the district court retains jurisdiction to adjudicate competing claims of ownership over the defendant property. Trott, Thomas (author) and Fisher, Circuit Judges. AUSA J. Lee of Los Angeles, CA, for the plaintiff-appellant; R. Rogari of Los Angeles, CA, for the claimants. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) TORTS: Castaneda v. Henneford, 08-55684 (9th Cir. Oct. 2, 2008). While imprisoned by the State of California, Castaneda met with medical staff repeatedly regarding a growing and painful lesion on his penis. He was denied treatment while imprisoned. After being released, he went immediately to a hospital and underwent a biopsy. It confirmed that he was suffering from squamous cell car-cinoma of the penis. His penis was then amputated, leaving a two-centimeter stump. However, the amputation did not occur in time to save his life. The cancer had metastasized to his lymph nodes and throughout his body. At issue on appeal was whether 42 USC Sec. 233(a) establishes the Federal Tort Claims Act as the exclusive remedy for constitutional violations committed by officers and employ-ees of the Public Health Service ("PHS"), precluding the cause of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). The USCA held that it does and that Sec. 233(a) does not entitle the PHS defen-dants to absolute immunity from constitutional torts. Reinhardt, Berzon, and M.D. Smith (author), Circuit Judges. J. Rubiner of Los Angeles, CA, for the appellants; A. Kimmel of Washington, DC, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) ATTORNEY-CLIENT PRIVILEGE: Truckstop.net v. Sprint Communications, 07-35123 (9th Cir. Oct. 28, 2008). At issue here was whether the USCA has appellate jurisdiction under the collateral order doctrine to review a district court's interlocutory order addressing whether an inadvertently disclosed e-mail is protected by the attorney-client privilege. The USCA held that because the privileged information had already been disclosed, it lacked jurisdiction and thus dismissed the appeal. Brunetti, Bybee, and Callahan (author), Circuit Judges. S. Thomas for the appellant; T. Getzoff for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) ESTABLISHMENT CLAUSE / STANDING: Caldwell v. Caldwell, 06-15771 (9th Cir. Oct. 3, 2008. At issue here was whether Jeanne Caldwell, who asserted an interest in being informed about how teachers teach the theory of evolution in biology classes, has standing to pursue an Establishment Clause claim arising out of her offense at the discussion of religious view on the "Understanding Evolution" website created and maintained by the University of California Museum of Paleontology and funded in part by the National Science Foundation. She maintained that that the website endorses beliefs which hold that religion is compatible with evolutionary theory and disapproves belief, such as her own, that are to the contrary, thereby exposing her to government-endorsed religious messages and making her feel like an outsider. The district court concluded that Caldwell's allegations stated only a generalized grievance insufficient for injury in fact, and dismissed her complaint. The USCA agreed that the harm asserted by Caldwell to her interest in being informed about the teaching of evolutionary theory is too generalized and remote to confer standing against the University of California faculty who administer the website and develop its content on behalf of the Museum of Paleontology. The USCA thus affirmed. Judge Fletcher concurred but wrote separately to elaborate more fully why Caldwell lacked standing. Caldwell's injury is limited to "the psychological consequence presumably produced by observation of conduct with which one disagrees. She did not allege that her children's school has incorporated the offending views expressed on the website into its science curriculum or that her children's biology teacher articulated them in response to a student's question. Thus, there is no allegation that Caldwell's children or Caldwell herself were "directly affected" by the offensive content of the website. Caldwell also did not allege that her contact with the offensive views expressed on the website was "frequent and regular" or "unwelcome." There is no allegation that Caldwell had any reason to visit the offending web page more than once. Nor did the single offending web page prevent Caldwell from freely using the rest of the website: the site comprised approximately 840 pages, each of which can be viewed without having fist viewed the offending page. B. Fletcher (concurring) and Rymer (author), Circuit Judges, and Duffy, District Judge. L. Caldwell of Roseville, CA, for the appellant; W. Carroll of San Francisco, CA, and R. Loeb of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) FIRST AMENDMENT: Posey v. Lake Pend Oreille School District # 84, 07-35188 (9th Cir. Oct.15 2, 2008). At issue here was whether, following Garcetti v. Ceballos, 547 U.S. 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead presents a mixed question of fact and law. Posey sued Lake Pend Oreille School District #84, arguing that by eliminating his job, the School District retaliated for his prior speech, in violation of the First and Fourteenth Amendment to the U.S. Constitution. The district court granted the School District summary judgment, concluding-purely as a matter of law-that the speech in question had been spoken pursuant to Posey's job re-sponsibilities and thus in his capacity as a public employee. It thus was not constitutionally protected. Agreeing with the Third, Seventh, and Eighth Circuits, the USCA held that, following Garcetti, the inquiry into whether a public employee's speech is protected by the First Amendment is no longer purely legal and presents a mixed question of fact and law. Summary judgment thus is inappropriate where, as here, (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justification for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of the plaintiff's employment duties. The USCA thus reversed the grant of summary judgment on Posey's First Amendment retaliation claim and remanded for further proceedings. Hawkins (author), McKeown, and Bybee, Circuit Judges. J. West of Washington, DC, for the appellant; M. Sebastian of Boise, ID, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) FOURTH AMENDMENT: Porter v. Osborn, 07-35974 (9th Cir. Oct. 20, 2008). This case questioned the appropriate standard of culpability to apply to a police officer who kills a suspect in the course of investigating a suspicious car parked alongside an Alaska highway, under circumstances suggesting that the officer may have helped to create an emergency situation by his own excessive ac-tions. The matter arose in the context of a lawsuit brought by the parents of the victim. They claimed that the officer violated their Fourteenth Amendment substantive due process right of familial association with their deceased son. They maintained that the officer's actions were so outrageous as to shock the conscience. The district court found that the parents presented sufficient evidence that the officer's conduct violated their constitutional rights to warrant a jury trial, but the USCA held that it did so only by applying an incorrect standard of culpability. The USCA held that the "purpose to harm" standard governed the applicable level of culpability needed to shock the conscience here, because the officer faced a fast paced, evolving situation presenting competing obligations with insufficient time for the kind of actual deliberation required for deliberate indifference. It remanded to the district court to review Osborn's conduct under the proper Fourteenth Amendment standard and determine whether the facts, when taken in the light most favorable to the plaintiffs, show that the officer's actions shock the conscience because he acted with a purpose to harm for reasons unrelated to legitimate law enforcement objective. D.W. Nelson and Tashima, and Fisher (author), Circuit Judges. AAG R. Botstein of Anchorage, AK, for the appellant; M. Osterman of Kenai, AK, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) ALASKA NATIVE CLAIMS SETTLEMENT ACT: Stratman v. Leisnoi, Inc., 07-35934 (9th Cir. Oct. 6, 2008). In 1976, Stratman began his quest to challenge the Secretary of the Interior's certification of Woody Island as a native village under the Alaska Native Claims Settlement Act ("ANCSA"). At issue here, 32 years later, was whether Congress ratified the Secretary's favorable 1974 eligibility determination when, in 1980, it enacted the Alaska National Interest Lands Conservation Act which listed Woody Island's village corporation, Leisnoi, Inc., as a "deficiency village corporation" entitled to lands under ANCSA. The USCA held that it did. It thus dismissed Stratman's appeal as moot. D.W. Nelson, Tashima (author) and Fisher, Circuit Judges. M. Snider of Anchorage, AK, for the appellants; D. Shilton of Washington, DC, and R. Middleton of Anchorage, AK, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) NATIVE AMERICAN LAW: Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, 05-72739 (9th Cir. Oct. 7, 2008). The Snoqualmie Tribe petitioned for review of a decision of the Federal Energy Regulatory Commission ("FERC") granting Puget Sound Energy ("PSE") a license to operate the Snoqualmie Falls Hydroelectric Project for another 40 years. The Tribe argued that FERC's relicensing decision violated the Religious Freedom Restoration Act ("RFRA") because the FERC employed the wrong legal standard for reviewing claims under RFRA and because substantial evidence did not support the FERC's conclusion that the relicensing decision did not substantially burden the Tribe's free exercise of religion. The Tribe also argued that FERC failed to consult with the Tribe on a government-to-government basis in violation of the National Historic Preservation Act ("NHPA"). PSE cross-petitioned for review of FERC's decision to impose water flow requirements that exceed those established in the Washington State Department of Ecology's water quality certification ("WQC"). The USCA vacated submission pending publication of Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. Aug. 8, 2008) (en banc). Now, in reliance upon that opinion, it denied the petitions for re-view. First, it found that substantial evidence supported the FERC's finding that the relicensing decision did not substantially burden the Tribe's free exercise of religion. Second, although the FERC employed the wrong standard for analyzing RFRA claims, the error was harmless in this case because the FERC's standard was more generous to the plaintiffs than the standard articulated in Navajo Nation and the Tribe failed to show a substantial burden that would meet the Navajo Nation standard. Third, because the record, for purposes of NHPA Sec. 106 consultation, closed in 1997-before the Tribe gained federal recognition in 1999-the FERC was not obligated to consult with the Tribe on a government-to-government basis. Finally, the FERC's amendment of the license order's minimum instream flow provision did not conflict with the conditions in Ecology's WQC and was supported by substantial evidence. Fisher and Tallman (author), Circuit Judges, and Ezra, District Judge. A. Rodgers of Eugene, OR, for the petitioner; M. Schneider of Bellevue, WA, for the intervenor; J. Moot of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) NATIVE AMERICAN LAW: USA v. Fiander, 07-30251 (9th Cir. Oct. 23, 2008). Fiander, a member of the Confederated Tribes and Bands of the Yakama Nation, was charged in a multi-count indictment with violations related to trafficking in contraband cigarettes. The charges included violations of the Contraband Cigarette Trafficking Act ("CCTA"), conspiracy to violate the CCTA, conspiracy to violate RICO and money laundering. He agreed to plead guilty to Count One of the indictment, conspiracy to violate RICO, and the government agreed to move to dismiss the other counts. Shortly thereafter USA v. Smiskin, 487 F.3d 1260 (9th Cir. 2007), was decided. It held that the application of the CCTA to Yakama Indians violated the Yakama Treaty of 1855. It thus upheld the dismissal of the indictment against two members of the Yakama Nation. Pursuant to Smiskin, the district court dismissed the indictment. However, the USCA held that that the government could prosecute Fiander for RICO conspiracy even though it could not prosecute him for the substantive RICO offense of violating CCTA, and that this prosecution would be consistent with Salinas v. USA, 522 US 52 (1997), and with the goal of conspiracy law to address the "distinct evil" of a conspiracy to engage in a criminal enterprise. Fiander's agreement to facilitate the commission of contraband cigarette trafficking by others whose acts are indictable under CCTA is chargeable under Sec. 1962(d) for a RICO conspiracy. The USCA reversed the district court's dismissal of the indictment and remand for further proceedings. Reinhardt, Tashima (author), and McKeown, Circuit Judges. AUSA J. Kirk of Yakima, WA, for the appellant; J. Fiander of Yakama, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

24) IMMIGRATION: Delgado v. Mukasey, 03-74442 (9th Cir. Oct. 8, 2008). Delgado petitioned for review of a decision of the Board of Immigration Appeals ("BIA") ordering him removed to his native El Salvador. The BIA denied Delgado's application for asylum, withholding of removal, and withholding under the Convention Against Torture ("CAT withholding"), finding that his three prior driving under the influence ("DUI") offenses, which were not aggravated felonies, constituted "particularly serious crimes" that made him ineligible for those forms of relief. The BIA also found Delgado ineligible for deferral of removal under the Convention Against Torture ("CAT deferral") because he failed to show the requisite likelihood of future torture. The USCA dismissed in part and denied in part Delgado's petition for review. It deferred to the BIA's view that, for purposes of withholding of removal, the applicable statute permits the Attorney General to decide by adjudication that an alien's individual crime is "particularly serious" even though that crime is not classified as an aggravated felony. The USCA also held that, for purposes of asylum, the AG may determine by adjudication that a crime is "particularly serious" without first so classifying it by regulation. The USCA further determined that it lacked jurisdiction to review the merits of such decisions. Finally, the USCA held that substantial evidence supported the BIA's decision that Delgado failed to meet his burden of proving that he is more likely than not to be tortured if returned to El Salvador. Dissenting, Judge Berzon thought the USCA had jurisdiction to review the BIA's determination that Delgado's DUI convictions constituted a "particularly serious crime" under 8 USC Sec. 1158(b)(2)(B) and that the BIA itself lacked discretionary authority to make such a determination on a case-specific basis. Accordingly, she would remand to the BIA for consideration of the merits of his asylum application. Moreover, because she thought that the IJ and BIA erred as a matter of law in determining that Delgado's convictions rendered him ineligible for withholding of removal under 8 USC Sec. 1231(b)(3)(B), she would also remand for consideration of the merits of that claim. Canby (author), Siler, and Berzon (dissenting), Circuit Judges. N. Frenzen of Los Angeles, CA, for the petitioner; J. Levings of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) IMMIGRATION: Martinez v. Mukasey, 04-72975 (9th Cir. Oct. 6, 2008). Martinez, a native of Guatemala, petitioned for review of a BIA decision on remand which denied his claims for asylum, withholding of removal, and voluntary departure. In its deci-sion, the BIA upheld the Immigration Judge's ("IJ") adverse credibility finding regarding Martinez. In a 2003 decision, the USCA re-manded the matter to the BIA for further proceedings, finding that it failed to provide cogent reasons for rejecting Martinez's testimony in support of his application. Martinez v. INS, 72 F. App'x 564 (9th Cir. 2003). Martinez also petitioned for review of the BIA's decision that denied his motion to reopen to consider the Convention Against Torture claims. The USCA denied on both counts. As the record revealed, Martinez repeatedly and persistently lied under oath with respect to his application for asylum. That his skillful lies were material and went to the heart of his presentation went without saying. The IJ's reasons for his adverse credibility finding "bear a legitimate nexus" to his decision and the USCA said it could discern no flaw in the reasoning of either the IJ or the BIA. Both the IJ and BIA adopted adverse credibility findings that were well supported by substantial uncontroverted evidence in the record. Concurring, Judge Noonan said that Judge Trott had made a compelling case that the USCA's initial decision was mistaken. Martinez had lied grossly and repeatedly in his sworn asylum application and in his testimony three years later before the asylum officer. His explanation for what is politely called "discrepancies" was as unconvincing to Judge Noonan as it had been to the IJ who heard him in person. Martinez was articulate and intelligent and made articulate and intelligent misrepresentations under oath going to the heart of his asylum claim. Dissenting, Judge Pregerson noted that the USCA had already decided the issue in this case, which was whether the false statements in Martinez's initial asylum application and interview provided a sufficient basis to deny his asylum claim, and the majority had decided to disregard the law of the case because they believed that the court's previous disposition was "clearly erroneous and would work a manifest injustice." However, believing that the previous disposition was neither clearly erroneous nor would work a manifest injustice, Judge Pregerson dissented. Pregerson (dissenting), Noonan (concurring), and Trott (author), Circuit Judges. K. Hong of Los Angeles, CA, for the petitioner; A. Rabin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) IMMIGRATION: Balam-Chuc v. Mukasey, 06-72887 (9th Cir. Oct. 24, 2008). The petitioner sought review of a dismissal of his appeal to the Board of Immigration Appeals ("BIA"). He argued that the BIA improperly decided that the April 30, 2001 filing deadline in Sec. 245(i) of the Immigration and Nationality Act is a statute of repose, and thus not subject to equitable tolling for a claim of ineffective assistance of counsel. He further argued that his counsel's ineffective assistance constituted a due process violation under the Fifth Amendment. The USCA denied the petition. The petitioner had sought an immigrant visa after April 30, 2001, the deadline imposed by Congress to receive an adjustment of status under the LIFE Act amendments and the BIA properly ruled that the deadline imposed by Congress operates as a statute of repose, for which equitable tolling based on ineffective assistance of counsel is not available. In addition, the petitioner's counsel's failure to comply with the statutory filing requirements did not implicate the Fifth Amendment because it did not affect the fundamental fairness of any ongoing hearing. The petitioner had no remedy in the USCA. T.G. Nelson, Hawkins, and Bybee (author), Circuit Judges. C. Edward of Seattle, WA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

27) IMMIGRATION: Shin v. Mukasey, 06-71955 (9th Cir. Oct. 23, 2008) (The opinion filed earlier in this case has been withdrawn to replace by the current opinion.) At issue here was whether an alien who overstayed her tourist visa, and then paid $10,000 for the purchase of a fraudulent alien registration card (a "green card") manufactured by a corrupt federal immigration employee, can bar the government from removing her from the United States on the grounds that the government is estopped to assert that the green card is bogus. The USCA held that the government cannot be saddled with the felonious, unauthorized issuance of residence documents by a thieving employee. D.W. Nelson and Bea (author), Circuit Judges, and Oberdorfer, District Judges. A. Park of Santa Clara, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Estrada-Espinoza v. Mukasey, 05-75850 (9th Cir. Oct. 20, 2008). At issue here was whether a conviction under any of four California statutory rape provisions, California Penal Code Secs. 261.5(c), 286(b)(1), 288a(b)(1), or 289(h), consti-tutes the aggravated felony "sexual abuse of a minor" within the meaning of 8 USC Sec. 1101(a)(43). The USCA concluded that each statute defines conduct that is categorically broader than the generic definition of "sexual abuse of a minor" and granted the petition for review. Convictions under these four sections do not categorically constitute "sexual abuse of a minor." In this case there is no sugges-tion of abuse in any form. The couple had a relationship, approved by both parents, and lived together in the home of the petitioner's parents. They had a child together, and ultimately moved into a separate residence, and the petitioner worked to support this family. If they had solemnized their relationship by marriage, no prosecution would have been possible under Sec. 261.5(c). Kozinski, Preger-son, Reinhardt, Kleinfeld, Hawkins, Thomas (author), Silverman, Gould, Paez, Tallman, and Clifton, Circuit Judges. S. Ahmad of Fremont, CA, for the petitioner; G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) WARRANTLESS SEARCH: USA v. Delgado, 07-50238 (9th Cir. Oct. 7, 2008). Delgado was convicted of possession of co-caine with the intent to distribute base after cocaine was found during a warrantless inspection of his commercial truck in Missouri. He challenged the district court's denial of his motion to suppress and maintained that commercial trucking is not subject to warrantless inspections as a pervasively regulated industry under New York v. Burger, 482 U.S. 691 (1987). Delgado also asserted that the state trooper's search if his truck violated the Fourth Amendment by going beyond the proper regulatory scope of an administrative search. Additionally, he challenged the district court's denial of his motion for judgment of acquittal due to improper venue. He maintained that venue was improper in the Southern District of California because there was no evidence that the cocaine was placed in his truck in southern California, and the government impermissibly relied on his confession with out introducing independent corroborating evidence to support its veracity. The USCA affirmed. The district court committed no error when it denied Delgado's motion to suppress the drugs discovered in his commercial vehicle. The warrantless administrative search did not violate the Fourth Amendment. Venue in the Southern District of California was established by evidence in the record other than Delgado's statement of the origin of the trip. Silverman, Rawlinson (author), and M.D. Smith, Circuit Judges. M. Prevost of San Diego, CA, for the appellant; AUSA L. Spong of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

30) SEARCH & SEIZURE: USA v. Maes, 07-10495 (9th Cir. Oct. 10, 2008). Maes was stopped on Department of Veterans Affairs ("VA") property by a VA police officer who saw her driving the wrong way down a one-way street. That officer summoned another officer, who upon stopping her observed drug paraphernalia on Maes' dashboard. Maes admitted that there might be drugs in the vehicle, and the officers searched the car. The search revealed a small bag of marijuana, bongs, pipes, cleaning rods, and other drug paraphernalia. Maes was charged with one court of possession of a controlled substance in violation of 21 USC Sec. 844(a), and one count of driving in the wrong direction on a posted one-way street in violation of 38 CFR Sec. 1.218(b)(32). She pleaded not guilty and moved to dismiss the possession charge, contending that she was improperly charged under 21 USC Sec. 844(a). She argued that she should have been charged, so far as drug possession was concerned, under 38 CFR Sec. 1.218(a)(7), a VA regulation that reads: "The introduction or possession of alcoholic beverages or any narcotic drug, hallucinogen, marijuana, barbiturate [or] amphetamine on [VA] property is prohibited, except for liquor or drugs prescribed for use by medical authority for medical purposes." A magistrate heard oral argument on Maes' motion to dismiss, and denied the motion. Maes later withdrew her not-guilty plea as to both counts, entered a conditional guilty plea, and received a fine of $1000 and a special assessment of $25 for the first count and a fine of $25 and a special assessment of $10 on the second court. Maes then appealed this order to the district court, which affirmed the magistrate's decision. Maes appealed again. The USCA affirmed, concluding that the district court did not error by upholding the sentence under 21 USC Sec. 844. Gould (author) and Bea, Circuit Judges, and Sedwick, District Judge. D. Broderick of Sacramento, CA, for the appellant; M. Scott of Fresno, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) CHILD PORNOGRAPHY / DOUBLE JEOPARDY: USA v. Schales, 07-10288 (9th Cir. Oct. 20, 2008). Schales, who was 45 years old at the time of this incident, approached a 14-year old girl at a Wal-Mart store, surreptitiously placed a digital camera underneath her miniskirt, and took a photo. Caught red-handed by another shopper, he tired to delete the photos stored on his camera. Despite his efforts, the police recovered several photos of two young girls from his camera and then sought a warrant to search his resi-dence where they discovered an immense quantity of child pornography. After a four-day trial, Schales was found guilty of receiving or distributing materials involving the sexual exploitation of minors, possessing materials involving the sexual exploitation of minors, and receiving or producing a visual depiction of a minor engaging in sexually explicit conduct that is obscene, 18 USC Sec. 1466A(a)(1). On appeal, he challenged his convictions and sentence. The USCA rejected, for lack of merit, Schales' "facial" and "as applied" challenges to Sec. 1466A(a)(1) which proscribes obscene visual depictions of minors engaging in sexually explicit conduct. The scope of this statute extends only to obscene visual depictions, as articulated in Miller v. California, 413 US 15 (1973), and, thus, the existence of an actual minor is unnecessary. The USCA also rejected Schales' sufficiency of evidence claim, his evidentiary challenge to the admission of the Wal-Mart evidence, and his claim that the district court erred by refusing to adjust his sentence for acceptance of responsibility. However, it remanded the case back to the district court to vacate either his conviction for receiving material involving the sexual exploitation of minors in violation of 18 USC Sec. 2252(a)(2) or for possessing material involving the sexual exploitation of minors in violation of 18 USC Sec. 2252(a)(4)(B). In this case, convictions for both receipt and possession of materials involving the sexual exploitation of minors violated the Double Jeopardy Clause. Schroeder, Clifton, and Callahan (author), Circuit Judges. D. Broderick of Fresno, CA, for the defendant-appellant; AUSA D. Gappa of Fresno, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) WITHDRAWAL OF GUILTY PLEA: USA v. McTiernan, 07-50430 (9th Cir. Oct. 21, 2008). McTiernan appealed a judgment of conviction and sentence entered in the district court following his guilty plea to a single count information charging him with making a false statement to an FBI agent in violation of 18 USC Sec. 1001. Prior to sentencing, he moved to withdraw his plea, claiming that he had not been informed of his right to seek suppression, pursuant to 18 USC Secs. 2511 and 2515, of an incriminating recording seized by the government. The district court denied the motion upon finding that McTiernan had simply changed his mind once he learned that the government intended to seek a custodial sentence. It then sentenced McTiernan to four-months imprisonment, two-years of supervised release, a fine of $100,000, and a special assessment of $100. On appeal, McTiernan argued that he should have been allowed to withdraw his guilty plea because he was not informed by his previous counsel at or before the time of his guilty plea that he could move to suppress the incriminating recording seized by the government and allegedly used to persuade McTiernan to plead guilty. McTiernan claimed that such a motion would have been successful. He also argued that the district court clearly erred by determining that his effort to withdraw his guilty plea was based on an improper motive. The USCA vacated the district court's judgment and remanded so that the district court could conduct a full evidentiary hearing as to whether there exists a fair and just reason for McTiernan to withdraw his plea. Reinhardt, Miner (author), and Berzon, Circuit Judges. C. Sevilla of San Diego, CA, for the defendant-appellant; S.T. Neal of San Diego, CA, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

33) BANK FRAUD / SENTENCING: USA v. Armstead, 06-30550, (9th Cir. Oct. 15, 2008). A jury convicted Armstead of nine counts of bank fraud in violation of 18 USC Sec. 1344 and one count of conspiracy to commit bank fraud in violation of 18 USC Sec. 1349. On appeal, he maintained that the district court committed numerous procedural errors during sentencing and that his 210-month sentence was substantively unreasonable. Because it agreed that the district court miscalculated the number of victims under Sentencing Guideline Sec. 2B1.1(b)(2) and erred under Sec. 5G1.3(b)(1), the USCA vacated Armstead's sentence and remanded for resentenc-ing. Reinhardt, Tashima (author) and McKeown, Circuit Judges. AUSA T. Gorman of Seattle, WA, for the plaintiff-appellee; C. Elewski of Turnwater, WA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) SEXUAL MISCONDUCT / SENTENCING: USA v. Seljan, 05-50236, (9th Cir. Oct. 23, 2008). Seljan appealed his conviction and sentence for multiple offenses primarily involving sexual misconduct with young children in the Philippines. Federal agents investigated him after customs inspectors, conducting routine searches at a FedEx facility for unreported currency and other monetary in-struments in packages being sent to foreign destination, discovered sexually suggestive letters in packages sent by Seljan. Seljan who was 87 years old at the time of sentencing was given 20 years imprisonment. That was 22 months shorter than the low end of the calcu-lated Guidelines range. Seljan appealed the district court denial of his motion to suppress all evidence resulting from the searches, con-tending that the Fourth Amendment prohibited the inspectors from examining personal correspondence without a warrant, or from do-ing so after they should have realized that the document being examined was not a monetary instrument. Seljan also challenged his sentence. On an earlier appeal, a three-judge panel affirmed, with one judge dissenting in part. By a vote of a majority of non-recused active judges, it was ordered that the case be reheard en banc and that the three-judge panel opinion not be cited as precedent. Upon rehearing en banc, the USCA affirmed the district court's judgment that the customs inspection was not overly intrusive. Even assuming that there are limits to the government's right to search packages at the border, those limits were not transgressed here. In particular, an envelope containing personal correspondence is not uniquely protected from search at the border. Seljan also maintained that the district court had not adequately considered his advanced age during sentencing. However, the USCA found that contention meritless. The district court had acknowledged that Seljan's age and health reduced the likelihood of recidivism, and it addressed Seljan's concern that a 20-year sentence at age 87 was tantamount to life imprisonment. The district court even considered the sentence that a defendant without a prior convicton would receive. Concurring, Judge Callahan, joined by Judge Bea, noted that the search of Seljan's FedEx package was reasonable by virtue of the fact that it occurred at the border: border searches of persons or property entering or leaving the United States are per se reasonable under the Fourth Amendment. Judge Callahan wrote separately because she thought the majority took the unwarranted step of examining the reasonableness of the "scanning" methodology and whether precedents involving the "plain view" doctrine support such an analysis. She thought this approach had no place in Fourth Amendment border search juris-prudence. Judge Kozinski dissented. He noted that the Founders were as concerned with invasions of the mind as with those of the body, the home or personal property-which is why they gave papers equal rank with persons, houses, and effects in the Fourth Amendment litany. The majority's opinion, he thought, removed papers as an independent sphere of constitutional protection, treating them simply as a species of effect. Kozinski (dissenting), Rymer, Silverman, McKeown, Fisher, Rawlinson, Clifton (author), Callahan (concurring), Bea, M.D. Smith, and Ikuta, Circuit Judges. J. Brainin of Los Angeles, CA, for the appellant; AUSA M. Raphael of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) SENTENCING: USA v. Snellenberger, 06-50169 (9th Cir. Oct. 28, 2008). At issue here was whether a court may consider a clerk's minute order when applying the modified categorical approach of Taylor v. USA, 495 US 575 (1990). The USCA held that the district courts could rely on clerk minute orders which conform to the essential procedures described in applying the modified cate-gorical approach. Concurring Judge Graber, joined by Judges Rymer, Kleinfeld, Hawkins, Gould, and Tallman, fully joined the major-ity's opinion but wrote separately to respond to the dissent, which asserts that the USCA should not reach the question whether Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), would counsel reversal. Judge Graber said that even if the USCA were to consider this un-raised issue, it would have to so using a "plain error" analysis and there is no plain error here. Dissent-ing, Judge Smith noted that the Circuit rarely reviews argument not raised in the opening brief, but acknowledges an exception to the waiver rule when there has been an intervening change in the law. Accordingly, Judge Smith did not think that the USCA was free in this case to ignore the new law set forth in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), which addresses the threshold issue here of whether the USCA may use the modified categorical approach at all. If the modified categorical approach never applies under a particular statute, the USCA should not reach the issue of whether a minute order could satisfy the modified categorical approach. Judge Smith thought the USCA was in remiss in doing so. Kozinski, Reinhardt, Rymer, Kleinfeld, Hawkins, Thomas, Graber (concurring), W. Fletcher, Gould, Tallman, and M.D. Smith (dissenting), Circuit Judges. Per Curiam. G. Ivens of Los Angeles, CA, for the appellant; AUSA A. Gannon of Santa Ana, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) RESTITUTION: USA v. Lemoine, 06-50663 (9th Cir. Oct. 9, 2008). These consolidated appeals presented the question of whether the Bureau of Prisons ("BOP") may require inmates who participate in the Bureau's Inmate Financial Responsibility Program ("IFRP") to pay restitution to victims at a higher or faster rate than was specified by the sentencing court, without obtaining an order from the sentencing court directing or approving the larger payments. The USCA held that the BOP has the authority to encourage voluntary payments in excess of those required under the sentencing court's judgment by conditioning the receipt of certain privileges during the term of imprisonment on the inmates participation in the IFRP, where the district court has properly set a restitution repayment schedule as required under the Mandatory Victims Restitution Act ("MVRA"). Tallman and Clifton (author), Circuit Judges, and Carroll, District Judges. C. Lemoine pro se; AUSA K. Zusman of Portland, OR, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) HABEAS CORPUS: Slovic v. Yates, 06-55867, (9th Cir. Oct. 6, 2008). California prisoner Slovic petitioned for a writ of habeas corpus. He argued that his confrontation rights under the Sixth and Fourteenth Amendments to the U.S. Constitution were violated when the state trial court prevented him from asking questions on cross-examination that would establish that a key prosecution witness had likely lied under oath. The district court denied the petition. The USCA reversed. It agreed that Slovic was denied his confrontation rights and that those rights were clearly established. The USCA directed the district court to issue an order stating that a writ of habeas corpus will be issued with regard to Slovik's assault conviction unless he is retried or resentenced within a reasonable period time to be determined by the district court. Canby, Kleinfeld, and Bybee (author), Circuit Judges. K. Hermansen of San Diego, CA, for the petitioner; DAG G. Beaumont of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) HABEAS CORPUS: Styers v. Schriro, 07-99003, (9th Cir. Oct. 23, 2008). In December 1989, Styers, now an Arizona state prisoner, shot and killed the four-year old son of Debra Milke, a woman with whom he and his daughter shared an apartment. A jury convicted him of first degree murder, conspiracy to commit first degree murder, child abuse and kidnapping. With respect to the murder count, the trial court found three statutory aggravating factors and no mitigating factors sufficient substantial to call for leniency. It imposed the death penalty. After exhausting his direct appeals and state collateral review, Styers petitioned for a writ of habeas corpus in federal court, raising a number of constitutional claims regarding his trial and sentencing proceedings. The district court denied his petition, but granted a certificate of Appealability as to Styers' claim that he received ineffective assistance of counsel. The USCA ex-panded the certificate to include also Styers' claim that the Arizona Supreme Court failed adequately to narrow a facially vague aggra-vating factor applied in his case, and failed to fulfill its constitutional obligation under Clemons v. Mississippi, 494 US 738 (1990). The USCA then affirmed on all counts, except on Styer's claim that the Arizona Supreme Court failed to fulfill its obligations under Clemons v. Mississippi, 494 US 738 (1990). The USCA thus vacated the district court's judgment denying habeas corpus and remanded with instructions to grant the writ with respect to Styers' sentence unless the state, within a reasonable period of time, either corrects the constitutional errors in petitioner's death sentence or vacates the sentence and imposes a lesser sentence consistent with law. Kozinski, Farris, and Bea, Circuit Judges. Per Curiam. C. Sandman of Tucson, AZ, for the petitioner; AAG J. Zick of Phoenix, AZ for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

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

1) BANKRUPTCY: In re Arimetco, Inc., 07-15698 (9th Cir. Oct. 31, 2008) (unpublished). Wallace, Thomas, and Graber, Circuit Judges. Aero Nautical Leasing Corporation ("Aero") appealed the district court's order affirming the bankruptcy court's denial of Aero's motion to require Chapter 11 debtor Arimetco, Inc. to close on the sale of mining property to Aero. The USCA affirmed. The district court did not err in holding that the agreement, which included an option to purchase real property and mining claims, was severable. The terms and provisions of the contract indicate that the parties intended it to be severable. In making this determination, the USCA examined both the subject matter of and the language employed by the contract. O'Malley Inv. & Realty Co. v. Trimble, 422 P.2d 740, 747 (Ariz. Ct. App. 1967). The portions of the agreement regarding the outright purchase and sale on the one hand, and the option on the other, are for different parcels of land, and the agreement provides separate consideration for each of the transactions contemplated by the agreement. See Kahl v. Winfrey, 303 P.2d 526, 529 (Ariz. 1956) (separate consideration is one indicia of sever-ability). Moreover, the section of the agreement that creates the option contemplates the exercise of the option with no effect on the other transactions in the agreement. As the option portion of the agreement is severable, it is unnecessary to analyze alleged breaches of the agreement unrelated to the option. The district court also did not err in holding that Aero breached the option portion of the agreement and thus cannot compel specific performance of the option. Aero did not set a date for closing in its notice of intent to exer-cise the option and did not place funds into escrow. Both of these actions were unequivocally required to exercise the option. Because Aero did not follow the express terms of the agreement in order to exercise the option, it cannot compel specific performance to close on the sale of the property subject to the option. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) FINANCIAL INSTITUTIONS: MPR Global, Inc. v. Federal Deposit Insurance Corporation, 07-55244 (9th Cir. Oct. 30, 2008) (unpublished). W. Fletcher and Paez, Circuit Judges, and Duffy, District Judge. MPR Global appealed the dismissal of its suit for lack of subject matter jurisdiction based on failure to exhaust administrative remedies under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") On March 29, 1995, a California state court ordered the Resolution Trust Corporation ("RTC"), as receiver for Platte Valley Savings ("PVS"), to pay costs and attorneys' fees to MPR's predecessors in interest. MPR's predecessors in interest filed a claim on this judgment with the receiver, in accordance with the FIRREA claims process. On December 11, 1996, the Federal Deposit Insurance Corporation ("FDIC"), which succeeded the RTC, allowed the claim and paid that judgment in full with a receiver's certificate, which federal law permits. On June 1, 2000, following public notice, the FDIC closed the PVS receivership. On July 27, 2006, MPR, having received an assignment of the judgment, filed an action in federal district court against the FDIC as former receiver for PVS. MPR claimed that the "apparently worthless" receiver's certificate did not satisfy the state court judgment and requested that the judgment be renewed. Under FIRREA, claimants must request administrative review or file suit within 60 days following the FDIC's initial determination with respect to their claims. If the claimant fails to do either, then the "claimant shall have no further rights or remedies with respect to such claim. 12 USC Sec. 1821(d)(6). MPR's predecessors indisputably failed to exhaust administrative remedies by neglecting to request administrative review within 60 days following the FDIC's payment of the claim with a receiver's certificate. MPR thus did not satisfied the jurisdictional prerequisite for suit. Likewise, MPR's predecessors indisputably failed to file suit within 60 days following receipt of the receiver's certificate. The failure to do so triggers a statute of limitations provision that bars MPR's claims. See Sec. 1821(d)(6)(B). MPR's claim does not satisfy any of the narrow exceptions to the mandatory Sec. 1821 process recognized by the Ninth Circuit. See McCarthy v. FDIC, 348 F.3d 1075, 1077-80 (9th Cir. 2003). The USCA thus held that the district court properly determined that it lacked subject matter jurisdiction because MPR and its predecessors in interest failed to exhaust their administrative remedies. The USCA further held that MPR's claim was time barred under Sec. 1821(d)(6)(B). (Download the full text of this decision at www.ce9.uscourts.gov/)

3) TAXATION: Totten v. USA, 07-35494 (9th Cir. Oct. 29, 2008) (unpublished). Rymer and Fisher, Circuit Judges, and Hurley, District Judge. Totten appealed the district court's grant of summary judgment for the IRS on his lawsuit challenging the outcome of a Collection Due Process ("CDP") hearing. The USCA affirmed. The district court did not err in granting summary judgment on Totten's claim that he should have been able to challenge the underlying Trust Fund Recovery Penalty ("TFRP") at the CDP hearing. Taxpayers may not challenge the underlying tax liability at a CDP hearing if they had a prior opportunity to dispute the liability. 26 USC Sec. 6330(c)(2)(B). Totten had such an opportunity at his 2005 administrative hearing but elected to argue that the IRS had not produced any evidence to support the TFRP assessment. Moreover, Totten's opportunity to dispute the TFRP was not illusory simply because the IRS rejected his legal arguments. Finally, because Totten has not explained why he did not immediately challenge the result of the first administrative hearing by paying the TFRP and filing suit for refund, see 26 USC Sec. 7422, allowing him to dispute the TFRP here would undermine the statutory regime for contesting tax liability. The district court did not err in granting summary judgment on Totten's claim that the CDP hearing officer abused his discretion by failing to consider Totten's offer-in-compromise ("OIC"). Totten failed to provide a copy of the OIC his attorney Terry Wallace declared that he submitted to the IRS. See Fed. R. Civ. P. 56(e)(1) ("If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or be served with the affidavit.") Thus, the USCA found no fault with the district court not considering Wallace's unsupported assertion about the OIC. The district court did not err in granting summary judgment on Totten's claim that the CDP hearing officer abused his discretion by offering only two payment plans he acknowledged Totten could not reasonably afford. The IRS must accept taxpayer offers to enter into installment agreements when the outstanding liability is less than $10,000, see 26 USC Sec. 6159(c), but Totten's liability exceeded $100,000. Given the CDP hearing officer's discretion to accept or reject any proposed installment plan, he was not obliged to offer Totten an affordable installment plan. See 26 USC Sec. 6159(a) (generally granting the IRS discretion to enter into installment agreements.) (Download the full text of this decision at www.ce9.uscourts.gov/)

4) TAXATION: Pallack v. USA, 04-75714 (9th Cir. Oct. 16, 2008) (unpublished). Pallack appealed the Tax Court's determination that he failed to challenge his 1993 tax liability despite having had the opportunity, and thus could not challenge that liability at the Collections Due Process ("CDP") hearing. The USCA affirmed. Had Pallack timely appealed the 1993 notice of deficiency before the Tax Court, he could have argued that no deficiency existed based on his carryback theory. See 26 USC Sec. 6214(b) ("The Tax Court in redetermining a deficiency of income tax for any taxable year … shall consider such facts with relation to the taxes for other years … as may be necessary correctly to redetermine the amount of such deficiency …"); Russell v. USA, 592 F.2d 1069,1072 (9th Cir. 1979) ("When a taxpayer petitions the Tax Court to redetermine the asserted deficiency, the Tax Court acquires jurisdiction to decide the entire gamut of possible issues that control the determination of the amount of tax liability for the year in question.") Thus, Pallack had an opportunity to present his argument and to challenge his deficiency before the Tax Court. Accordingly, 26 USC Sec. 6330(c)(2)(B) precluded him from doing so at the CDP hearing. See 26 USC Sec. 6330(c)(2)(B) (providing that a taxpayer may challenge his underling tax liability at a CDP hearing only if he did not receive a notice of deficiency or did not otherwise have an opportunity to challenge the liability.) (Download the full text of this decision at www.ce9.uscourts.gov/)

5) AMERICANS WITH DISABILITIES: Connor v. Quest Diagnostics, Inc., 07-153434 (9th Cir. Oct. 28, 2008) (unpublished). Goodwin, Beezer, and Bybee Circuit Judges. Connor appealed the district court's summary judgment for Quest Diagnostics, Inc. ("Quest"). Connor, a Quest employee, brought suit for employment discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA") and the analogous Nevada statute, as well as state law claims for intentional infliction of emotional distress and tortious constructive discharge. First, he argued that Quest violated the ADA by failing to accommodate his disability by not allowing him to record a meeting, refusing to adjust supervisory methods, and failing to engage in good faith in the interactive process to fashion reasonable accommodations. A reasonable accommodation is one that enables an individual to perform the essential functions of his position by removing barriers or providing assistance. Cripe v. City of San Jose, 261 F.3d 877, 889 (9th Cir. 2001). Connor did not offer evidence to support his argument that recording one meeting about his prior job performance would have enabled him to perform the essential functions of his job, and thus has not shown that it is a reasonable accommodation. His claim regarding Quest's supervisory methods also fails because he did not identity supervisory methods that are incompatible with his disability or indicate how Quest should have altered them. Finally, his claim that Quest failed to engage in the interactive process with Connor to fashion appropriate accommodations based on Quest's refusal to enter a binding employment contract with Conner, and resolve his Nevada Equal Rights Commission ("NERC") complaint, also failed. None of these demands related to Connor's ability to perform the essential functions of his job and thus were not reasonable accommodations. Second, to establish a prima facie case for a retaliation claim under the ADA, Conner had to show that he engaged in a protected activity, suffered an adverse employment action, and that the two were causally connected. Pardi v. Kaiser Found. Hospital, 389 F.3d 840, 849 (9th Cir. 2004). While he showed that he engaged in a protected activity by requesting accommodations and complaining about perceived discrimination, he failed to identify an adverse employment action that occurred after he engaged in protected activity, and presented no evidence of causation between his perceived mistreatment and his protected activity. Third, to sustain a claim for intentional infliction of emotional distress, a plaintiff must prove, inter alia, that the defendant's conduct was extreme and outrageous. Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998). Connor's claim did not identify any such behavior. While he spoke generally about his treatment at Quest and claimed that Quest's conduct constituted harassment and pressure, he did not offer any facts or evidence to support those characterizations. Fourth, even if an employer's actions violate public policy, Nevada does not recognize common law tortious discharge claims if statutory remedies are available. D'Angelo v. Gardner, 819 P.2d 206, 21618 (Nev. 1991). Comprehensive statutory remedies, namely the ADA and its Ne-vada analog, cover the same conduct that is the basis for Connor's tortious discharge claim: discrimination against persons with dis-abilities. The USCA does not recognize a common law cause of action where a statutory one exists. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) TRADE SECRETS / STANDARDS FOR SEALING JUDICIAL RECRDS: In re Electronics Arts, 08-744264 (9th Cir. Oct. 28, 2008) (unpublished). Wardlaw, W. Fletcher, and Rawlinson, Circuit Judges. Electronics Arts ("EA") petitioned for a writ of mandamus from the district court's order denying its Motion for Administrative Relief to file Documents Under Seal. The USCA granted the petition. It noted that it reviews the district court's orders, not for an abuse of discretion, but for clear error. Five objective principles guide the inquiry: whether (1) the petitioner has no other adequate means, such as direct appeal, to attain the relief, (2) the petitioner will be damaged or prejudiced in a way not correctable on appeal, (3) the district court's order is clearly erroneous as a matter of law, (4) the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules, or (5) the district court's orders raises new and important problems, or issues of law of first impression." Cordoza v. Pacific States Steel Corp. 320 F.3d 989, 998 (9th Cir. 2003). The plaintiff class counsel represented that he plans to introduce EA's 2006 Licensing Agreement ("Trial Exhibit 80") on Wednesday, October 29, 2008. The defendant's counsel has stated that he has no objection to it introduction into evidence. The district court had ordered that if Trial Exhibit 80 is received in evidence "it will not be sealed." Thus, this matter was ripe for USCA review. Because Trial Exhibit 80 will ineluctably become part of the judicial record in the underlying case, the district court correctly concluded that the legal principles set forth in Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), control the decision whether to seal paragraph 6 of Trial Exhibit 80 from public access. The district court, however, committed clear error in its application of Kamakana to the confidential and commercially sensitive information EA seeks to protect from public disclosure in this case. In Kamakana, the USCA held that "unless a particular court record is one 'traditionally kept secret,' a strong presumption in favor of access is the starting point." Id. at 1178. The party seeking to seal a judicial record must then overcome the presumption by showing "compelling reasons" for dealing the document. However, in Kamakana, the USCA further noted that "in general, 'compelling reasons' sufficient to outweigh the public interest in disclosure and justify sealing court records exist when such 'court files might have become a vehicle for improper purposes,' such as the use of records to … release trade secrets." Id. at 1179 (quoting Nixon v. Warner Commc'ns, Inc., 435 US 589, 598 (1978).) In Nixon, the U.S. Supreme Court established that "the right to inspect and copy judicial records is not absolute," and, in particular, "the common-law right of inspection has bowed before the power of a court of insure that its records are not used … as sources of business information that might harm a litigant's competitive standing." 435 US at 598. This is the precise sort of information EA sought to seal in this case-the pricing terms, royalty rates, and guaranteed minimum payment terms found in paragraph 6 of the 2006 Licensing Agreement. This is also information that plainly falls within the definition of "trade secrets." A "trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives one an opportunity to obtain an advantage over competitors who do not know or use it." Restatement of Torts Sec. 757, cmt. b. Thus, under Kamakana and Nixon, the district court erred as a matter of law by concluding that EA failed to meet the "compelling reasons" standard. EA had no adequate means, other than mandamus, to attain relief. Once paragraph 6 of Trial Exhibit 80 is released to the public, EA will be irreparably damaged in a way not correctable on appeal. The USCA concluded that a redacted version of Trial Exhibit 80, not containing paragraph 6, need not be filed under seal and may be made available to the public. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) TRADEMARKS: Optima Corporation v. Wilson, 07-55516 (9th Cir. Oct. 14, 2008) (unpublished). Kozinski, D.W. Nelson, and Bea, Circuit Judges. Because there was evidence that Oz-Surf was infringing the Creatures of Leisure trademark by continuing to hold itself out as an authorized dealer after the termination of its distribution agreement with Great Waves, the district court did not abuse its discretion by enjoining Oz-Surf from selling Creatures of Leisure products. In granting the injunction, the district court did not rule that Oz-Surf was a party to the distribution agreement. Judicial estoppel thus did not bar the court from dismissing Oz-Surf's claims under the agreement on the ground that it was not a party to it. Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 633 (9th Cir. 2007). The Noerr-Pennington doctrine bars Oz-Surf's claim that Optima violated the Sherman Act by petitioning the court for an injunction. Kottle v. Nw. Kidney Ctrs., 146 F.3d 1056, 1059 (9th Cir. 1998) (Download the full text of this decision at www.ce9.uscourts.gov/)

8) SOFTWARE / CONTRACTS: Performance Chevrolet, Inc. v. Market Scan Information Systems, Inc., 07-35328 (9th Cir. Oct. 29, 2008) (unpublished). Silverman, McKeown, and Berzon, Circuit Judges. In this breach of contract action, defendant-appellant Market Scan Information Systems, a California-based computer software company, sought reversal of the district court's denial of its Motion for Judgment as a Matter of Law or for New Trial. Market Scan also appealed the district court's award of attor-neys' fees to plaintiff-appellee Performance Chevrolet, an Idaho-based automobile dealer. The USCA affirmed the district court in all respects. First, Cal. Comm. Code Sec. 10506 provides for a four-year limitations period on breaches of lease agreements which accrues "when the act or omission on which the default or breach of warranty is based is or should have been discovered by the aggrieved party, or when the default occurs, whichever is later." Under California law, discovery occurs "only after the damage is sufficiently appreciable to give a reasonable man notice that he has a duty to pursue his remedies." Mills v. Forestex Co., 108 Cal. App. 4th 625, 646 (2003). In this case, although Performance had problems with the Lease Prophet product from the beginning of the contract period, its injury was not "sufficiently appreciable" under the applicable standard until it became apparent that Market Scan's suggestions for improving the performance of its product did not work, and that the company was incapable of repairing the product. The evidence indicates that this realization reasonably did not occur until at least April 15, 2000, the relevant cut-off date. Second, Performance supplied extensive evidence that Market Scan, rather than user error, faulty phone lines, or a poor internet service provider ("ISP"), was the legal cause of the updating issues, and hence of Performance's failure to receive the benefits of the contract payments. This evidence included: (1) testimony from Performance employees that the updating problems persisted even after the company switched ISPs and phone lines; (2) testimony from Performance's owner that the updating process failed even when the company attempted manually to update the system during the day; (3) testimony from employees of two non-party auto-dealers who stated that they had similar problems with the Lease Prophet product, despite using different connectivity technologies than Performance; and (4) testimony from Market Scan's founder, Russell West, that the programs that performed the automatic update were written and maintained exclusively by Market Scan. Market Scan's sufficiency of the evidence argument thus was without merit. Third, the USCA reviewed a district court's evidentiary rulings and its decision to impose sanctions under Rule 37 for abuse of discretion. The district court admitted Hannah's and Hanigan's testimony pursuant to Fed. R. Evid. 404(b) and 403 after properly evaluating the tightness of the fit between the non-party dealers' experience with Lease Prophet and Performance's experience. With respect to Hannah's testimony, the district Court was careful to ensure that Hannah testified only to matters that she experienced personally and sustained a number of Market Scan's hearsay objections to particular testimony. Finally, the district court weighed the prejudice to both parties and consid-ered the surrounding circumstances before deciding to allow Hanigan to testify with a limiting instruction. The district court's careful consideration of each of these issue indicated that it did not abuse its discretion. During its instruction to the jury prior to Hanigan's testimony, the jury prior to Hanigan's testimony, the district court stated that Performance had "other witnesses on the same general subject matter that could have testified" instead of Hanigan. Although this statement was improper and could have been prejudicial, the error was harmless for three reasons: first, the judge did not say what the other witnesses would have said, just what the subject of their testimony would have been; second, the jury is likely to have drawn the inference that there were other dealers who had difficulties with the system even absent the court's statement, as one such dealer testified and Market Scan did not refute that testimony with evidence from a satisfied dealer; and, third, Performance provided a great deal of evidence that Market Scan was responsible for the updating issues, including testimony from the other dissatisfied dealer. The district court's isolated statement was thus unlikely to have affected the jury's conclusion on the key issue in the case. Fourth, the record established that Performance reformatted the Market Scan computer before it had the requisite "notice that the [computer was] potentially relevant to … litigation" against Market Scan, USA v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002), and that Market Scan would have likewise reformatted the computer had it been returned. The district court decision not to impose any sanction was thus well-supported by the evidentiary record, and not an abuse of discretion. See Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir. 1992). Fifth, the district court did not abuse its discretion when it concluded that the Goldmine Reports were admissible under Fed. R. Evid. 803(6). Market Scan had a regular practice of verifying the information provided by customers, so the applicable Rule 803(6) standard was met. See USA v. Bland, 961 F.2d 123, 127 (9th Cir. 1992). Sixth, the court's Instruction 8 explained the issues presented and correctly placed the burden on Performance to show (1) that Market Scan had a contractual obligation to provide daily access and updates to the Lease Prophet System; (2) that Market Scan failed to perform this obligation; (3) that its failure caused damages to Performance; and (4) the amount of those damages. In Instruction 9, the district court also rightly placed the burden on Market Scan to prove the affirmative defense that its performance was excused by Performance's failure to meet its contractual obligations. As a result, the instructions "fairly and correctly covered the substance of the applicable law" and the issues presented. See White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002). Seventh, under either Idaho or California law, the district court did not abuse its discretion when it found that Performance was a "prevailing party" in the litigation. The court evaluated each of Performance's causes of action and found that the company had successfully achieved its primary objective: return of its lease payments. It thus acted within its authority when it awarded Performance "prevailing party" status. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) IMMIGRATION: Rizvi v. Mukasey, 07-70091 (9th Cir. Oct. 27, 2008) (unpublished). Rymer and Kleinfeld, Circuit Judges, and Hurley, District Judge. Rizvi petitioned for review of the final order of the Board of Immigration Appeals dismissing his appeal of the Immigration Judge's decision, which denied Rizvi's application for asylum, withholding of removal, and protection under the Convention Against Torture. The USCA affirmed the BIA's order. First, the USCA lacked jurisdiction to review the IJ's adverse credibility determination because the decision by the BIA did not adopt or rely on that finding. The USCA can only review a final agency action. Second, the USCA found that substantial evidence supported the denial of Rizvi's application for asylum and withholding of removal. Under the post-REAL ID Act version of 8 USC Sec.1158, the IJ did not err by requiring Rizvi to provide evidence that corroborated his testimony. A reasonable factfinder could conclude, as the IJ and BIA did, that Rizvi should have provided copies of corroborating medical records, since he testified to obtaining the same documents for an earlier asylum application in Canada. Third, the BIA did not err in finding that Rizvi could avoid future persecution by relocating within Pakistan. It was reasonable to conclude that the attacks were solely attributable to a group of Sunnis in Karachi, who were acting without the government's support. Given that no one has attacked Rizvi's family since he left Pakistan and that 14 million Shiites remain in Pakistan, the record did not compel the finding that Rizvi had a "well-founded" fear of persecution simply because he is a Shiite. Fourth, it was also proper for the district court to deny Rizvi's petition under the Convention Against Torture. Rizvi admitted that the Pakistan government is not involved in attacks on Shiites. He did not show that the government was unable or unwilling to protect against persecution, and the evidence showed the contrary, that some of his attackers were apprehended by the police and prosecuted criminally. Rizvi thus did not meet his burden of proof. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) IMMIGRATION: Mohamed v. Mukasey, 04-72115 (9th Cir. Oct. 14, 2008) (unpublished). Pregerson and Wardlaw, and Archer, Circuit Judges. Mohamed, a native and citizen of Ethiopia, petitioned for review of a decision of the Board of Immigration Appeals that denied her claims for asylum, withholding of removal, and protection under the Convention Against Torture. The USCA granted Mohamed's petition. When "the BIA conducts an independent review of the IJ's findings," the USCA reviews "the BIA's de-cision and not that of the IJ." Sidhu v. INS, 220 F.3d 1085. The USCA thus reviewed the decision of the BIA. The BIA had made an adverse credibility determination which the USCA reviewed for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). The USCA concluded that the BIA's determination that Mohamed was not credible was not supported by substantial evidence. The BIA based its adverse credibility determination on the fact that Mohamed did not produce evidence to corroborate her identity as an Eritrean. In so deciding, the BIA relied on Sidhu. That decision, however, held that an adverse credibility finding may be upheld only where the "applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible ex-planation for such failure." Sidhu, 220 F.3d. 1085, 1092. Under the REAL ID Act, "no court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence … unless the court finds … that a reasonable trier of fact is com-pelled to conclude that such corroborating evidence is unavailable." 8 USC Sec. 1252(b)(4) Here, there was o corroborating evidence that was "easily available." The BIA suggested that Mohamed's failure to obtain documents proving her identity was based not on the availability of the documents, but on Mohamed's unwillingness to obtain them. This speculation, however, is not supported by the re-cord. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000) ("Speculation and conjecture cannot form the basis of an adverse credibility finding."). Beyond speculation, the BIA offered no explanation as to why Mohamed should have been able to obtain documents proving her Eritrean identity. By contrast, the record indicates that Mohamed made extensive efforts to procure further evidence of her identity. She attempted to obtain the documents from the Eritrean embassy, but was told that this was not possible without some identifying documents. She also testified plausibly about her fear of contacting the Ethiopian embassy. She enlisted a friend who was traveling Ethiopia for business to track down her high school and obtain school records that might contain the necessary evidence. She also contacted neighbors in Ethiopia to procure corroborating documents. The credible evidence of Mohamed's efforts to obtain the documents itself reveals that such documentation was, contrary to the BIA's "not easily available" conclusion. In addition, the record shows that Mohamed provided credible testimony about her Eritrean heritage. She also produced a family friend, who testified that he believed the family was Eritrean. Under Sidhu, she was not required to provide additional corroborating evidence where such evidence was not easily available. The BIA thus erred in relying on the lack of corroborating evidence as a basis for finding Mohamed not to be credible. The USCA thus granted Mohamed's petition and remanded to the BIA for proceedings consistent with its disposition. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) IMMIGRATION: Mbugua v. Mukasey, 05-70061 (9th Cir. Oct. 30, 2008) (unpublished). Schroeder, D.W. Nelson, and Reinhardt, Circuit Judges. Mbugua petitioned for review of the denial of his application for asylum, withholding of removal, and pro-tection under the Convention Against Torture ("CAT"). Finding Mbugua not credible, the Immigration Judge ("IJ") denied his appli-cation. The decision was summarily affirmed by the Board of Immigration Appeals ("BIA"). Mbugua petitioned for review. The USCA denied the petition. In a supplemental declaration and in his testimony before the IJ, Mbugua admitted that he lied about a number of issues in his case, both in his written submissions to the asylum office and at his asylum interview. On the basis of significant inconsistencies in his story that went to the heart of his claim for asylum, as well as inconsistent explanations as to why he lied, the IJ found Mbugua not credible and denied his application. The IJ provided "specific, cogent reasons" for his findings that were "substantial" and that bore "a legitimate nexus to the finding." Salaam v. INC, 229 F.3d 1234, 1238 (9th Cir. 2000). Because the finding was supported by substantial evidence, the USCA affirmed the adverse credibility determination. Mbugua also claimed that he was denied due process because the IJ failed to adequately consider relevant evidence. The USCA found that it need not decide whether the IJ actually failed to do so, because any such failure would have been prejudicial. The evidence in question would not have undermined the credibility determination. Because he has not demonstrated prejudice, Mbugua failed to establish a due process violation. Mbugua next argued that he was denied his statutory right of confrontation because the IJ improperly relied on hearsay evidence in finding him not credible. The evidence to which he objects is the asylum officer's Assessment to Refer. Where inadmissible evidence is merely "duplicative or cumulative" of other evidence properly admitted, the error is harmless. Here, the substantial inconsistencies in Mbugua's testimony, which formed the basis for the adverse credibility determination, were evidence from a simple comparison of Mbugua's two written declarations. Mbugua introduced these declarations into evidence himself. Because the adverse credibility determination was supported by substantial evidence that was properly admitted, the USCA declined to reverse the IJ's determination. Mbugua also argued that the IJ committed reversible error in failing to explain how the distinct legal standards for withholding of removal and CAT relief applied to the facts of his case. However, because no testimony was introduced other than Mbugua's, and because the IJ's adverse credibility determination undermined the viability of all three claims for relief, the USCA affirmed the IJ's rejection of each of the claims. Finally, the USCA found that it lacked jurisdiction to hear Mbugua's claim that he was prejudiced by ineffective assistance of counsel at the asylum interview because he failed to raise this issue before the BIA. The USCA thus denied Mbugua's petition for review. (Download the full text of this decision at www.ce9.uscourts.gov/