2)  SECURITIES:  Krull v. SEC, 99-70290 (9th Cir. Apr. 26, 2001).  The Securities and Exchange Commission did not abuse its discretion in uphold a one-year suspension imposed on a registered securities representative who for more than two years violated his obligation to his customers to make only suitable switches in mutual fund investments.  McKeown (author), W. Fletcher, and Rawlinson, Circuit Judges.  F. Huebner of Seattle, WA, for the petitioner-
appellant;  A. Capute of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  TELECOMMUNICATIONS LAW:  City of Auburn v. Qwest Corp., 99-36173 (9th Cir. Apr. 24, 2001).  An ambiguous tariff filed with a state utilities commission did not require municipalities to shoulder utility relocation costs made necessary by right-of-way improvements;  state law and the Federal Telecommunications Act of 1996 preempt city ordinances establishing a franchise system to mange telecommunications facilities in rights-of-way.  Rymer, Thomas, and McKeown (author), Circuit Judges.  P. Lynch of Seattle, WA, for the appellant;  C. Arnold of Seattle, WA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  TAXATION:  Popov v. CIR, 99-70749 (9th Cir. Apr. 17, 2001).  A professional musician is entitled to deduct expenses related to that portion of her home used exclusively for her musical practice.  Browning, Brunetti, and Hawkins (author), Circuit Judges.  P. Popov for the petitioners;  J. Bradley of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  BANKRUPTCY:  In re Lieberman, 00-15006 (9th Cir. Apr. 13, 2001).  California's private retirement plan statute, Cal. Civ. Proc. Code Sec. 704.115(a)(1), does not exempt from creditors' claims an arrangement by an individual to use specified assets for retirement purposes.  Pregerson, Canby, and Thompson (author), Circuit Judges.  D. Jenkins of Fresno, CA, for the appellant  J. Wall of Fresno, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY / STUDENT LOANS:  In re Rifino, 99-35378 (9th Cir. Apr. 13, 2001).  Under the "undue hardship provision of 11 USC Sec. 523(a)(8), federal insured student loans were not dischargeable in bankruptcy as an undue hardship where the debtor failed to demonstrate that her present circumstances were likely to persist for a significant portion of the repayment period for the loans.  Reinhardt, Wardlaw, and Gould (author), Circuit Judges.  P. Holmes of Seattle, WA, for the plaintiff-appellant;  AUSA D. Tebelius of Seattle, WA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY:  In re Dunbar, 99-16814 (9th Cir. Apr. 4, 2001).  Pursuant to In re Gruntz, 202 F.3d 1074 (9th Cir. 2000), a decision by a state ALJ regarding the scope of an automatic stay in bankruptcy does not preclude independent consideration of the issue by the federal bankruptcy court.  B. Fletcher (author), O'Scannlain, and Gould, Circuit Judges.  M. Ward of San Francisco, CA, for the appellants;  D. Boone of San Jose, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

8) BANKRUPTCY / TRADEMARK INFRINGEMENT:  Far Out Productions, Inc. v. Oskar, 99-56739 (9th Cir. Apr. 4, 2001).  The Bankruptcy Code's automatic stay provision, 11 USC Sec. 362(a), prevented a Florida state judgment that a trademark was procured by fraud from binding the debtor in the instant case.  Ferguson and Silverman, Circuit Judges, and Breyer, District Judge.  M. Pepper of New Orleans, Louisiana, for the defendant;  J. Coggan of Beverly Hills, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  BANKRUPTCY / SANCTIONS:  In re Larry's  Apartment L.L.C., 00-15728 (9th Cir. Apr. 26, 2001).  Federal sanction law, not state sanctions and contract law, applied to a party's conduct in a federal court action which was not a contact action.  Sneed, Fernandez (author), and Kleinfeld, Circuit Judges.  H. Meyers of Phoenix, AZ, for the appellant;  D. Weatherwax of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  ERISA:  Southern California IBEW-NECA Trust Funds v. Standard Industrial Electric Company, 99-55805 (9th Cir. Apr. 18, 2001).  California's payment bond and stop notice remedies are not preempted by ERISA;  they do not have an impermissible connection with, nor do they impermissibly relate to, an ERISA benefit plan.  O'Scannlain, Fernandez, and Rawlinson (author), Circuit Judges.  B. Johnson of San Mateo, CA, for the appellants;  J.D. Sachman of Los Angeles, CA, for the appellees / cross-appellants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  ERISA:  Ingram v. Martin Marietta Long Term Disability Income Plan, 99-55581 (9th Cir. Apr. 4, 2001).  A district court commits reversible error in reviewing the denial of ERISA long-term disability benefits under an abuse of discretion standard unless the plan unambiguously states that the plan administrator retains discretion in making benefits decisions.  T.G. Nelson and W. Fletcher (author), Circuit Judges, and Reed, District Judge.  C. Fleishman of Beverly Hills, CA, for the appellant;  W.M. Battle of Los Angeles, CA, for the-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  LABOR LAW:  Rowe v. Laidlaw Transit, Inc., 00-35197 (9th Cir. Apr. 4, 2001).  Undesignated leave that otherwise qualifies under the Family Medical Leave Act ("FMLA") is entitled to statutory protection;  prior notice by the employer is not a prerequisite for a partial leave to be protected by the FMLA.  Pregerson, Thomas, and Gould (author), Circuit Judges.  J. Koch of Portland, OR, for the plaintiff-appellant;  P. Barran of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13)  LABOR LAW:  Webster v. Public School Employees of Washington, 99-35085 (9th Cir. Apr. 18, 2001).  Where a bona fide administrative employee, a union field representative employed by an employee organization, meets both the primary duties test and the salary basis test under the Fair Labor Standards Act, the employee is exempt from federal overtime protection.  Pregerson, Thomas, and Gould (author), Circuit Judges.  D. Utevsky of Seattle, WA, for the plaintiffs;  M. Killeen of Seattle, WA, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  LABOR LAW:  Local Joint Executive Board of Culinary / Bartender Trust Fund v. Las Vegas Sands, Inc., 98-17065 (9th Cir. Apr. 11, 2001).  Under 29 USC Sec. 2104(a)(1)(A) tip income is included within the definition of "back pay" to which terminated employees are entitled under the Workers Adjustment Retraining and Notification Act, and employees who can prove that they would have worked on a holiday are entitled to back pay at the rate they would have been paid for that holiday.  Kozinski, Fernandez, and W. Fletcher (author), Circuit Judges.  A. Kahn of Las Vegas, NV, for the plaintiffs-appellants;  D. Frederick of Las Vegas, NV, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  SEXUAL HARASSMENT:  Kohler v. Inter-Tel Technologies, 99-15895 (9th Cir. Apr. 11, 2001).  The USCA affirmed a district court's judgment that the California Supreme Court would most likely hold that an employer can assert an affirmative defense to an employee's claim that her supervisor sexually harassed her in violation of the California Fair Employment and Housing Act;  the district court thus did not err in applying the federal affirmative defense to employer liability to the employee's state sexual harassment claims in this case.  Alarcon (author), Kozinski, and Hawkins, Circuit Judges.  G. McCurdy of Richmond, CA, for the plaintiff-appellant;  M. Tsatalis of Palo Alto, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  SEXUAL HARASSMENT:  Laughon v. Intl. Alliance of Theatrical Stage Employees, 99-15812 (9th Cir. Apr. 30, 2001).  Discrimination charges against an individual who serves as both a local and an international union official do not give the international actual or constructive notice of the charges solely by virtue of the individual's double role;  the local was not acting as an agent of the international; the international was thus not vicariously liable for the local's actions;  the international did not have an affirmative duty to seek out and eradicate discriminatory conduct by the local official.  Wallace, Fisher (author), and Rawlinson Circuit Judges.  R. Bushnell of San Francisco, CA, for the plaintiff-appellant;  D. Adelstein of Burbank, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  ADMIRALTY:  Orsini v. O/S Seabrooke O.N., 99-35588 (9th Cir. Apr. 24, 2001).  Summary judgment in favor of a ship claiming enforceability of an injured seaman's release of claims against the ship was improper where there was evidence of coercion, consideration was inadequate, the seaman misunderstood his medical condition, and the ship's agent failed to make a full disclosure of the seaman's rights.  Reinhardt, Wardlaw, and Gould (author), Circuit Judges.  S. Gray of Kodiak, AK, for the plaintiff-appellant;  L. Farley of Anchorage, AK, and A. Owen of Seattle, WA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  AMERICANS WITH DISABILITIES ACT:  Brown v. Lucky Stores, Inc., 99-15385 (9th Cir. Apr. 17, 2001).  The Americans with Disabilities Act's "safe harbor" provision, 42 USC Sec. 12114(b)(2), only protects those employees who have refrained from using drugs for a significant period of time;  mere participation in a rehabilitation program is not enough to trigger the protection of Sec. 12114(b)(2).  Aldisert, Graber and Fisher (author), Circuit Judges.  D. Mitchell of Oakland, CA, for the plaintiff-appellant / cross-appellee;  G. Barron of Oakland, CA, for the defendants-appellees / cross-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  TORTS:  Winter v. USA, 99-16113 (9th Cir. Apr. 2, 2001).  The plaintiff's cause of action against the Veteran's Administration did not accrue under the Federal Torts Claims Act where he relied on information provided by medical doctors, including a leading authority on the subject, that his injuries were not caused by electrodes the VA implanted in his legs.  Kozinski, Hawkins (author), and Berzon, Circuit Judges.  S. Friedman of Phoenix, AZ, for the plaintiff;  W. Cole of Washington, DC, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  ZONING:  Baby Tam & Co. v. Las Vegas, 00-16123 (9th Cir. Apr. 26, 2001).  A City of Las Vegas zoning and licensing scheme for adult bookstores that required approval or denial of an application within 30 days and imposed minimal fees that did not burden speech was not unconstitutional.  Reinhardt, Noonan (author), and Thompson, Circuit Judges.  M. Stein of Las Vegas, NV, for the plaintiff-appellant;  B. Jerbic of Las Vegas, NV, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  WATER RIGHTS:  Mohave Valley Irrigation & Drainage District v. Norton, 99-16927 (9th Cir. Apr. 11, 2001).  The 1968 water entitlement contract between the Mohave Valley Irrigation & Drainage District and the Secretary of the Interior encompasses water delivered to landowners in the District who hold present perfected rights of Colorado River water.  Schroeder (author), Wallace, and Tallman, Circuit Judges.  T. Leek of Prescott, AZ, for the plaintiff-appellant;  J. Dobbins of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  TORTS / GOVERNMENT IMMUNITY:  Costo v. USA, 99-36101 (9th Cir. Apr. 20, 2001).  Under the Feres doctrine, the USCA "reluctantly" held that tort suits against the government brought by the estates of active duty sailors who drowned while on liberty during a Navy-led recreational rafting trip were barred as incident to military service;  dissenting, Judge Ferguson wrote to demonstrate that the Feres doctrine is unconstitutional and to present the Supreme Court with a case and controversy in order for it to be able to review the doctrine.  Alarcon, Ferguson (dissenting), and McKeown (author), Circuit Judges.  L. Sturgill of Washington, DC, for the defendant-appellee;  W. Weppner of Silverdale, WA, for the plaintiffs-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  ATTORNEYS' FEES / APPEAL PERIOD:  American Ironworks & Erectors, Inc. v. North American Construction Corp., 99-35379 (9th Cir. Apr. 26, 2001).  An entry of judgment triggers the notice of appeal period for a prior interlocutory order granting, but not disbursing, attorneys' fees.  McKeown (author), W. Fletcher, and Rawlinson, Circuit Judges.  T. Lonergan of Seattle, WA, for the appellant;  M. Broz of Seattle, WA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  ATTORNEYS' FEES REDUCTIONS:  Ferland v. Conrad Credit Corp., 99-56625 (9th Cir. Apr. 5, 2001).  When a district court reduces an attorney's compensable hours for inefficiency, it must identify the specific hours the attorney spent inefficiently or provide an explanation of how it decided how many hours to cut, or by what percentage to reduce the documented hours.  Trott, Thomas, and Berzon, Circuit Judges.  Per Curiam.  D. Raymond of Solana Beach, CA, for the plaintiff-appellant;  M. Ripley of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  ATTORNEYS' FEES:  USA v. One 1997 Toyota Land Cruiser, 99-55661 (9th Cir. Apr. 26, 2001).  Under a 1996 amendment to the Equal Access to Justice Act, 28 USC Sec. 2412(d)(1)(D), an individual, as well as a small business, may seek an award of attorneys' fees where the government's settlement demand is substantially in excess of the final judgment obtained by the government and is unreasonable when compared with the judgment.  D.W. Nelson (author), Brunetti, and Kozinski, Circuit Judges.  R. Barnett of San Diego, CA, for the claimant-appellant;  AUSA R. Linley of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  SANCTIONS:  F.J. Hanshaw Enterprises v. Emerald River Development, Inc., 99-55395 (9th Cir. Apr. 5, 2001).  Where a district court uses its inherent powers to impose sanctions for the attempted bribery of the receiver in a partnership dissolution case, such a finding is tantamount to that of criminal contempt and the court must provide the same due process protections as would be available in a criminal contempt proceeding.  Kozinski, Graber, and Fisher (author), Circuit Judges.  J. Keller of Irvine, CA, for the plaintiff;  T. McCandless of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  COLLATERAL ESTOPPEL:  Troutt v. Colorado Western Insurance Company, 98-36268 (9th Cir. Apr. 2, 2001).  Collateral estoppel did not bar the litigation in federal court of an issue litigated but not adjudicated on its merits in state court;  dissenting in part, Judge Fletcher agreed that the insurer breached its duty to indemnify but she thought it also breached its duty to investigate and would hold that the failure to conduct a proper investigation caused the insurer to breach its duty to defend and to fail to meet its obli-gation to settle.  B. Fletcher (dissenting in part), Hall (author), and Tashima, Circuit Judges.  J. Gordon of Missoula, MT, for the de-fendant;  M. Beck of Bozeman, MT, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  PREEMPTION:  Lee v. Burlington Northern Santa Fe Railway, 99-35790 (9th Cir. Apr. 16, 2001).  Plaintiff's state tort claim for damages against a railroad alleging failure to maintain adequate warning devices at a grade crossing, was preempted by the Federal Railroad Safety Act of 1970 and 23 CFR Secs. 646.214(b)(3) and (4);  the railroad's failure to cross-appeal the district court's denial of its motion for summary judgment on preemption grounds did not preclude the USCA from considering the preemption issue when the movant did not seek to enlarge or modify its rights, but simply to defend a judgment entered in its favor.  Reinhardt, Wardlaw, and Gould (author), Circuit Judges.  J. Bottomly of Kalispell, MT, for the plaintiff;  R. Cox of Missoula, MT, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  PLEADINGS:  USA v. SmithKline Beecham, 98-56557 (9th Cir. Apr. 2, 2001).  It is error to deny leave to amend unless the pleading could not possibly be cured by the allegation of other facts.  Pregerson, W. Fletcher, and Gould (author), Circuit Judges.  T. Tate of Los Angeles, CA, for the plaintiff;  T. Lee of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.usca-portal.com) 

30)  JURISDICTION:  Doe v. Unocal Corp., 99-55576 (9th Cir. Apr. 27, 2001).  The plaintiffs failed to meet their burden of showing that subsidiaries of Total, S.A. having substantial California contacts should be treated as Total's general agents for purposes of jurisdiction under the agency doctrine of Chan v. Society Expeditions, 39 F.3d 1398 (9th Cir. 1994).  D.W. Nelson, Brunetti, and Kozinski, Circuit Judges.  Per Curiam.  J. Chomsky of Elkins Park, PA, for the plaintiffs;  R. Mainland of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  DEADLY FORCE:  Monroe v. City of Phoenix, 99-16974 (9th Cir. Apr. 17, 2001).  In a police shooting case where there was no dispute that deadly force was used, the district court abused its discretion by failing to give a "deadly force" instruction under Tennessee v. Garner, 471 US 1 (1985);  however, in this civil case that error was harmless as the court instructed the jury on deadly force under Arizona law.  Hawkins, McKeown (author), and Wardlaw, Circuit Judges.  T. Behrens of Glendale, CA, for the plaintiff-appellant;  D. Struck of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  SOCIAL SECURITY:  Holohan v. Massanari, 00-16090 (9th Cir. Apr. 17, 2001).  It was legal error for an ALJ to rely solely on Medical-Vocational Guidelines in determining that there existed work a psychiatrically impaired Social Security disability claimant could perform with her limitations;  dissenting in part, Judge Fernandez thought that this case represented "another example of this court's insistence that it is the ultimate trier of fact in social security disability cases" and that "although the ALJ, who is the true trier of fact, the Appeals Council and the district court judge were all satisfied that Holohan is not disabled, except, perhaps for alcoholism, we decide that none of them understood the law or the evidence and, therefore, not only reverse but also direct the payment of benefits."  While Judge Fernandez agreed that "the ALJ did not properly touch all of the bases in deciding this case," he did not agree that the USCA should reweigh all of the evidence and grant benefits.  B. Fletcher (author), Fernandez (dissenting in part), and Paez, Circuit Judges.  P. Matyi of Larkspur, CA, for the plaintiff;  D. Ogden of San Francisco, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  SOCIAL SECURITY:  Udd v. Massanari, 99-35515 (9th Cir. Apr. 16, 2001).  A termination of Social Security benefits violates due process where the claimant lacks the mental capacity to understand the termination notice and the procedures for requesting review of that termination.  Reinhardt (author), Wardlaw, and Gould, Circuit Judges.  J. Lavin of Port Angeles, WA, for the plaintiff-appellant;  R. MacFarland of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  HEALTH CARE:  Jackson v. East Bay Hospital, 98-17152 (9th Cir. Apr. 19, 2001).  A hospital satisfies the Emergency Medical Treatment and Active Labor Act's appropriate medical screening requirement where it provides a patient with an examination comparable to that offered other patients presenting similar symptoms, unless the examination is so cursory that it is not designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury;  Judge Tashima concurred in all of the majority's opinion, except one part where he believed the majority's interpretation of Cal. Health & Safety Code Sec. 1317 to be mistaken.  Thompson, O'Scannlain (author) and Tashima (dissenting in part), Circuit Judges.  J. Braden of San Francisco, CA, for the plaintiffs-appellants;  M. Tilner of Encino, CA, and J. Gilmore of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  HEALTH CARE:  CHW West Bay v. Thompson, 99-17123 (9th Cir. Apr. 18, 2001).  Incentive payments under the Tax Equity and Fiscal Responsibility Act of 1982 ("TEFRA") need not be limited to actual costs in view of the fact that a TEFRA reward is not a direct reimbursement for costs.  Goodwin (author), Hug, and W. Fletcher, Circuit Judges.  R. Klein of Los Angeles, CA, for the plaintiff-appellant;  R. Waterman of San Francisco, WA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/)  

36)  FREE SPEECH:  Giebel v. Sylvester, 99-36105 (9th Cir. Apr. 12, 2001).  A state university professor who removes handbills publicizing an appearance of a former colleague at a conference to be held on the university campus constitutes a First Amendment violation.  Reinhardt (author), Wardlaw, and Gould, Circuit Judges.  D. Giebel pro se;  N. Peterson of Helena, MT, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  FIRST AMENDMENT:  Weeks v. Bayer, 00-15269 (9th Cir. Apr. 18, 2001).  A government employee's single remark regarding the funding status of a government program, made in private and without further indicia of public concern—such as allegations of mismanagement or fraud, or an attempt to report the matter publicly—did not carry protective status under the First Amendment.  Noonan, McKeown (author), and Wardlaw, Circuit Judges.  P. Wetherall of Reno, NV, for the plaintiff-appellant;  J. Slabaugh of Car-son City, NV, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  IMMIGRATION LAW:  Matsuk v. INS, 99-71255 (9th Cir. Apr. 25, 2001).  Pursuant to 8 USC Sec. 1252, the USCA lacked jurisdiction to review the BIA's exercise of discretion in ordering removal and denying an alien's request for withholding of removal.  T.G. Nelson (author), Graber, and Rawlinson, Circuit Judges.  J. Marandas of Portland, OR, for the petitioner;  P. Kovac of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  IMMIGRATION LAW:  Ramos v. INS, 99-70343 (9th Cir. Apr. 20, 2001).  An alien's false statements during an asylum interview constituted testimony for purposes of the Immigration and Naturalization Act;  substantial evidence thus supported the BIA's determination that the petitioner lacked good moral character.  Choy (author), Wallace, and Skopil, Circuit Judges.  M. Ramos of Pacoima, CA, for the petitioner;  C. Ferrier of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  IMMIGRATION LAW:  Palma-Rojas v. INS, 97-70232 (9th Cir. Apr. 17, 2001).  Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the USCA lacked jurisdiction to review a discretionary decision of the BIA denying an alien relief from deportation under Sec. 212(c) of the Immigration and Naturalization Act.  Thompson, Trott, and Paez, Circuit Judges.  Per Curiam.  L. Seifert of Olympia, WA, for the petitioner;  L. Shealy of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  IMMIGRATION LAW:  Torres-Aguilar v. INS, 99-70096 (9th Cir. Apr. 23, 2001).  Under Sec. 309(c)(4)(E) of the transitional rules of Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the USCA lacked jurisdiction over a petitioner's allegations that the BIA erred in finding that the petitioner did not meet the requirement of "extreme hardship" for deportation suspension purposes under Sec. 244 of the Immigration and Nationality Act.  B. Fletcher, Thomas (author), and Wardlaw, Circuit Judges.  V. Pradis of Los Angeles, CA, for the petitioner;  S. Kim of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  IMMIGRATION LAW:  Cortez-Felipe v. INS, 99-70541 (9th Cir. Apr. 2, 2001).  The INS did not engage in affirmative misconduct by filing an order to show cause ("OSC") against an alien after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act despite verbal assurances that the OSC would be filed before the Act's effective date;  even if proven, that failure at most reflects negligence on the part of the INS and not affirmative misconduct.  Reinhardt, Wardlaw, and Gould (author), Circuit Judges.  J. Kagele of Spokane, WA, for the petitioner;  D. Ogden of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  IMMIGRATION LAW:  Rodas-Mendoza v. INS, 99-70902 (9th Cir. Apr. 18, 2001).  An alien fails to demonstrate an objectively reasonable fear of future persecution when she merely cites acts of violence by non-government actors that are not supported by the government;  violence "completely untethered to a governmental system does not afford a basis for asylum."  Schroeder, Wallace, and Tallman, Circuit Judges.  Per Curiam.  S. Shaiken of San Francisco, CA, for the petitioner;  M. Dougherty of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  IMMIGRATION LAW:  USA v. Romo-Romo, 00-10011 (9th Cir. Apr. 24, 2001).  The jury was not properly instructed that an alien must actually leave United States soil to be convicted of reentering the country after being deported.  Fernandez (author) and Kleinfeld, Circuit Judges, and Moskowitz, District Judge.  AFPD H.D. Grunbaum of San Jose, CA, for the defendant-appellant;  AUSA J.D. Wilson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  IMMIGRATION LAW / CRIMINAL LAW:  USA v. Matsumaru, 99-10334 (9th Cir. Apr. 3, 2001).  The document charging the crime of establishing a commercial enterprise for the purpose of evading immigration laws in violation of 8 USC Sec. 1325(d) must identify the particular commercial enterprise the government claims to have been established for the purpose of evading immigration laws.  Hug, Trott (author), and Wardlaw, Circuit Judges.  W. Osterhoudt of San Francisco, CA, for the defendant-appellant;  AUSA O. Poirier of Honolulu, HI, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  SEARCH & SEIZURE:  USA v. $22,474, 99-16611 (9th Cir. Apr. 18, 2001).  Defendant's admission that he had a prior conviction for trafficking in cocaine was sufficient when taken together with a sophisticated dog sniff, a drug courier profile, and the defendant's evasive and dishonest answers, to establish probable cause that the money seized from the defendant and forfeited under 21 USC Sec. 881(a)(6) was related to illegal drug activity.  Thompson (author), O'Scannlain, and Tashima, Circuit Judges.  A. Bickart of Phoenix, AZ, for the appellant;  AUSA R. Pixler of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  SEARCH & SEIZURE:  USA v. Miles, 00-30035 (9th Cir. Apr. 26, 2001).  During an investigatory stop, policy officers may not go beyond a pat-down for weapons;  here, they exceed the scope of a Terry patdown by shaking or moving a box felt in the defendant's pocket which turned out to contain bullets as the officer suspected.  McKeown (author), W. Fletcher, and Rawlinson, Circuit Judges.  AFPD N. Bergeson of Portland, OR, for the defendant-appellant;  AUSA M. Brown of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  SEARCH & SEIZURE:  USA v. Sigmond-Ballesteros, 00-50408 (9th Cir. Apr. 20, 2001).  No reasonable suspicion existed to stop a driver who twice concealed his face from a border patrol officer and then changed lanes and pulled off a main highway onto a small dirt road;  the agent at that point stopped the driver and discovered some 18 individuals laying under a blanket in the rear area of the driver's truck;  the USCA concluded that the district court erred in denying the defendant's motion to suppress all of the evidence obtained as a result of his being stopped.  Ferguson, Tashima (author), and Fisher, Circuit Judges.  AUSA M. Inciong of San Diego, CA, for the plaintiff-appellee;  AFPD V. Brunkow of San Diego, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  SEARCH & SEIZURE:  USA v. Silva, 99-10416 (9th Cir. Apr. 20, 2001).  Defendants not present during the execution of a warrant lacked standing to challenge an officer's compliance with presentment requirements;  defendants had no legitimate expectation of privacy in a shed in which they manufactured metamphetamine, either as overnight guests or as renters of commercial property.  Graber (author), Fisher, and Berzon, Circuit Judges.  J. Jordan of San Francisco, CA, for the defendants-appellants;  AUSA K. Servatius of Fresno, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  SIXTH AMENDMENT:  USA v. Baker, 99-56718 (9th Cir. Apr. 5, 2001).  A criminal defendant's mere allegation that his attorney had a conflict of interest based on the attorney's cooperation and guilty plea on unrelated charges against the attorney in another federal district was an insufficient basis on which to predicate an actual conflict for the purpose of a Sixth Amendment claim of conflict of interest.  Tashima (author) and Fisher, Circuit Judges, and Zilly, District Judge.  M. Gibbons of Toms River, NJ, for the appel-lant;  AUSA R. Cheng of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  CHILD PORNOGRAPHY:  USA v. Davidson, 00-50033 (9th Cir. Apr. 19, 2001).  An individual who pleaded guilty to possession of images of child pornography "transported … by computer" in violation of federal law cannot be compelled to register as a sex offender under California Penal Code Sec. 290, when at the time he violated federal law, his conduct was not an enumerated offense under California law.  Goodwin, Hug, and Pregerson (author), Circuit Judges.  AUSA P. Donahue of Santa Ana, CA, for the appellee;  A. Rubin of Los Angeles, CA, for the appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  PLEAS:  USA v. Gaither, 99-50612 (9th Cir. Apr. 4, 2001). A defendant's armed robbery guilty plea was not coerced where during the colloquy he first repeatedly denied then repeatedly asserted knowledge that his accomplice had a gun;  the defendant had insisted on pleading guilty, and said he knew about the gun;  the judge plainly informed him that he did not have to admit knowing about the gun and could make the government try to prove it;  the circumstantial evidence that the defendant knew about the gun was strong, and he had every reason to think that it could be proved; and, the judge had every reason to believe his admission, despite his earlier denials.  Rymer and Kleinfeld (author), Circuit Judges, and Damrell, District Judge.  J. Levine of Encino, CA, for the appellant;  AUSA A. Alikhan of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  EX POST FACTO CLAUSE:  Doe v. Otte, 99-35845 (9th Cir. Apr. 9, 2001).  The Alaska Sex Offenders Registration Act violates the Ex Post Facto Clause and may not be applied to persons whose crimes were committed before its enactment.  D.W. Nelson, Reinhardt (author), and Thomas, Circuit Judges.  D. Thompson of Anchorage, AK, and V. Rupright of Wasilla, AK, for the plaintiffs-appellants;  K. Rosenstein of Anchorage, AK, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  SPEEDY TRIAL ACT:  USA v. Arellano-Rivera, 00-50453 (9th Cir. Apr. 4, 2001).  The defendant's offense level was properly enhanced on the basis of prior aggravated felonies even though the defendant did not admit to having committed them, and even though the government neither alleged them in the indictment nor proved them at trial beyond a reasonable doubt.  Leavy, Trott (author), and Silverman, Circuit Judges.  J. Smith of San Diego, CA, for the plaintiff-appellee;  B. Lechman of San Diego, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  RECUSAL / SENTENCING:  USA v. Silver, 00-50071 (9th Cir. Apr. 6, 2001).  It was not necessary for a judge to recuse himself when a defendant's sentence was enhanced based on a prior conviction in an unrelated case that was within the judge's jurisdiction when many years earlier he served as U.S. Attorney.  T.G. Nelson and W. Fletcher, Circuit Judges, and Reed (author), District Judge.  J. Newton of Hermosa Beach, CA, for the appellant;  AUSA E. Moreton of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  SENTENCING:  USA v. Rivera-Sanchez, 99-10275 (9th Cir. Apr. 18, 2001).  Sitting en banc, the USCA held that a violation of California Health and Safety Code Sec. 11360(a), a drug trafficking law criminalizing the solicitation of enumerated acts, does not qualify as an aggravated felony for sentencing purposes pursuant to USSG Sec. 2L1.2(b)(1)(A).  Schroeder, B. Fletcher, Reinhardt, Kozinski, O'Scannlain, Trott, T.G. Nelson, Thomas (author), Graber, McKeown, and Tallman, Circuit Judges.  AFPD B. Jacobson of Phoenix, AZ, for the appellant;  AUSA V. Kelly of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  SENTENCING:  USA v. Saya, 00-10004 (9th Cir. Apr. 20, 2001).  The statutory maximum penalty under 21 USC Sec. 841 turns on the amount of drugs involved;  whereas prior to Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the drug quantity could be determined by the court by a preponderance of the evidence, it now must be proven beyond a reasonable doubt and determined by the jury;  however, here it was harmless error for the drug quantity attributed to the defendant to be determined by the court by a preponderance of the evidence rather than proven beyond a reasonable doubt and determined by the jury where the defendant admitted to the drug quantity and was not sentenced beyond the statutory maximum authorized by the jury's verdict.  Noonan, McKeown (author), and Wardlaw Circuit Judges.  J. Clarke of Spokane, WA, for the defendant-appellant;  AUSA Nakamura of Honolulu, HI, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  SENTENCING:  USA v. King, 99-10478 (9th Cir. Apr. 13, 2001).  A sentence enhancement for being the organizer or leader of a criminal enterprise under USSG Sec. 3B1.1 is not permitted in the absence of proof of other culpable participants.  Graber, Fisher (author), and Berzon, Circuit Judges.  S. Luban of Berkeley, CA, for the defendant-
appellant;  AUSA R. Swanson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

1)  INTELLECTUAL PROPERTY / CONTRACTS: The Five Platters, Inc. v. Powell, 99-56663 (9th Cir. Apr. 16, 2001) (unpublished).  Ferguson and Silverman, Circuit Judges, and Breyer, District Judge.
      The Five Platters, Inc. ("FPI") and Personality Productions, Inc. brought this action against Powell and his company Rowil Entertainment alleging breach of contract and infringement of the trademark "The Platters" by Powell.  The defendants appealed several orders of the District Court for the Central District of California, Judge Real presiding.
 The USCA affirmed in part and reversed in part.  First, the defendants appealed the district court's grant of summary judgment for the plaintiffs on both their common law trademark claim and breach of contract claim.  In reviewing the plaintiffs' common law trademark claim, the USCA found that the district court erred in declining to give preclusive effect to three earlier cases:  Five Platters, Inc. v. 12319 Corp., Los Angeles Superior Court, 43926 (Levit, J.);  Robi v. Five Platters, Inc., U.S. District Court, CV 84-3326 (Marshall, J.); and, Robi v. Bennett, U.S. District Court, CV 93-4546 (Marshall, J.).  These decisions establish that FPI continued to present its group as "The Platters" even though the group no longer includes any of the five people who made the name famous and that FPI used the trademark with the intention of misleading the public into believing that FPI's group is the original group.  As a result, the plaintiffs may not assert any common law trademark in "The Platters" based on their prior use of the mark to the extent that the plaintiffs' use has been false and misleading in suggesting that their group is the original Platters.  Any use identifying the group as "The Platters," "The Five Platters," "The Buck Ram Platters," or "The Original Platters" is false and misleading under these prior decisions.  Unless the plaintiffs have evidence that they used the trademark in a way that was not false and misleading (e.g., by identifying the group as "The Platters Since 1970"), they cannot assert a common law trademark in "The Platters."  The USCA reversed the district court's summary judgment on the trademark claim and remanded for an evidentiary hearing as to whether any of the plaintiffs' use of the mark was not false and misleading.  If the plaintiffs cannot present evidence of non-misleading use, the defendants are entitled to summary judgment on the common law trademark claim.  At that time, the district court will no longer possess federal question subject matter jurisdiction and may choose to consider whether it wishes to exercise supplemental jurisdiction under 28 USC Sec. 1367.   The district court also erred in granting summary judgment on the plaintiffs' breach of contract claim.  Powell's affidavit, in which he claimed he had been released from the contract and that he was subject to undue influence, raised a genuine issue of material fact precluding summary judgment.  If the district court exercises supplemental jurisdiction, it must submit the plaintiffs' breach of contract claim to a jury.  The defendants also appealed the district court's award of damages to the plaintiffs.  The district court erred in failing to submit the damages issue to a jury.  A plaintiff seeking monetary damages for a breach of contract and trademark infringement is bringing at least in part a legal claim such that the parties have a right to a jury trial on certain issues.  The defendants thus had a right to a jury trial as to the plaintiffs' damages.  Moreover, the evidence was insufficient to support the damages award as there was no evidence as to the defendants' revenues for 1996 and 1999.  The USCA thus reversed the district court's order awarding damages to the plaintiffs in the amount of $922,810.
        The defendants also appealed the district court's contempt order.  The USCA found that because this order was civil rather than criminal, the district court did not err in declining to submit the contempt issue to a jury.  Moreover, the evidence was sufficient to support the order.  Although the underlying summary judgment was erroneous, the defendants may not seek to evade the contempt order on that basis.  The USCA thus affirmed the district court's contempt order.
       Finally, the defendants appealed the district court's issuance of a preliminary injunction preventing Powell from transferring certain assets.  Because it reversed the district court's entry of summary judgment for the plaintiffs, the USCA vacated the preliminary injunction and did not need to consider the defendants' challenges to it.  However, the USCA noted that should the plaintiffs seek an identical injunction before trial after the case is remanded, it would be difficult for the plaintiffs to establish a likelihood of success in light of this order.

2)  INTELLECTUAL PROPERTY: Krystal Enterprises v. Hollenbeck, 99-55962 (9th Cir. Apr. 20, 2001) (unpublished).  Beezer, T.G. Nelson, and Berzon, Circuit Judges.
       Plaintiff Krystal Enterprises appealed the judgment of the District Court for the Central District of California, Judge Taylor presiding.  The USCA affirmed.  Krystal failed to raise a genuine issue of material fact as to whether Metrotrans' "Tax Axle" and "Have You Heard the Rumor" advertisements contained false claims of product superiority.  The Circuit has distinguished (1) an advertisement that explicitly or implicitly asserts that a claim of product superiority is based on studies, which may be proven false by showing that the studies are unreliable, from (2) an advertisement that made no such assertion, which much be proved false by affirmative evidence.  The USCA agreed with the district court that neither advertisement here mentions a study or comparative analysis or implies that Metrotrans' claims of product superiority are study-validated.  Krystal thus had to offer evidence tending to show the falsity of Metrotrans' claims of product superiority.  It failed to do so.  The claims of "highest residual value" in the "Tax Axle" advertisement were based on a comparison of "residual value," the average percentage of the manufacturer's suggested retail price retained upon resale.  The fact that Krystal's buses have a higher resale value according to the "Bus Book" is irrelevant and Krystal offers no other evidence tending to show that the claim of "highest residual value" is false.  In its "Have You Heard the Rumor" advertisement, Metrotrans claimed the "highest resale value … of any small U.S.A. bus."  However, because this advertisement was published in August 1997, Krystal's comparison of "high" and "low resale values in the 1998 edition of the "Bus Book," which was not fully compiled until November 1997, at the earliest, did not tend to show that such a claim was false when made.  Nor did Krystal offer any evidence tending to show that Metrotrans' advertisements, although "literally true," were "likely to mislead."  Krystal's surveys of how mid-sized bus consumers prioritize "residual value" have nothing to do with whether the advertisements conveyed an implied message and deceived the viewing public.  Instead, they merely suggest that such consumers would be very interested in Metrotrans' advertisements.  For all these reasons, the USCA concluded that the district court did not err in granting Metrotrans' motion for summary judgment on Krystal's Lanham Act claims.

3)  CONTRACTS / TORTS / EVIDENCE: Oxycal Laboratories v. Patrick, 99-56069 (9th Cir. Apr. 25, 2001) (unpublished).  Archer, Trott, and Silverman, Circuit Judges.
       The District Court for the Central District of California, Judge Stotler presiding, held Patrick liable for tortious interference with contract and assessed Prentice damages of $229,655.  Patrick appealed that decision as well as the district court's denial of his motion to amend his complaint.  Oxycal Laboratories cross-appealed certain evidentiary decision as well as the district court's computation of damages.
       The USCA affirmed.  Patrick's motion for leave to amend his complaint was filed beyond the cut-off date set out in the court's scheduling order of August 8, 1997.  With this scheduling order in place, the district court correctly analyzed Patrick's motion according to the standards set forth in FRCP 16(b), and determined that it would not permit Patrick's amendment "except upon a showing of good cause."  Having heard Patrick's explanation for his belated amendment, the district court found that Patrick failed to make any such showing.  Patrick did not convincingly challenged this finding on appeal and he incorrectly argued that the court's modification of the pretrial order demonstrated that it abused its discretion in refusing to allow a modification of the scheduling order.  The USCA concluded that the district court properly granted summary judgment for Oxycal on its intentional interference with contract claims.  Patrick maintained that as sole owner and director of Alacer Corporation he was a party to the contract between Alacer and Oxycal and thus could not have tortiously interfered with this contract.  However, California law has consistently found owners, managers, and advisers liable in tort as third parties where they were not acting to protect the interests of the contracting party.  Patrick's argument on appeal was essentially an assertion of the manager's privilege.  As the district court correctly noted, the manager's privilege is an affirmative defense to liability for intentional interference with contract.  As a legal justification under California law, it must be affirmatively pled.  Patrick failed to plead this defense in a timely manner and, thus, could not assert it on appeal.
        In its cross-appeal Oxycal challenged the district court's exclusion of evidence related to an investigation by the Federal Trade Commission as inadmissible hearsay and as irrelevant evidence.  Oxycal also maintained that the court improperly failed to award Prentice damages associated with its failed enforcement action.  With respect to the district court's ruling that an alleged statement by Mr. Milgrom of the FTC was hearsay, the USCA rejected Oxycal's argument under Fed. R. Evidence 803(1) ("present sense impression") because this argument was not raised below.  Oxycal's argument under Fed. R. Evid. 807 was also unpersuasive because there were no "equivalent circumstantial guarantees of trustworthiness" associated with this alleged statement as required by Fed. R. Evid. 807.  The USCA also rejected Oxycal's argument under Fed. R. Evid. 803(3) ("then existing state of mind or motive").  Oxycal attempted to rely on this statement to establish the FTC's motive in initiating its investigation.  The alleged statement, however, occurred after the initiation of the investigation and, thus, was not a statement of "then existing" motive within the meaning of this exception.  Finally, all of Oxycal's arguments suffered from the problem that the statement was possibly double hearsay, as Oxycal could not show that Milgrom had personal knowledge of the facts of the alleged statement.  The USCA thus could not conclude that the district court abused its discretion in excluding the statement.  With respect to the other evidence concerning the FTC investigation, the USCA held that the district court permissibly excluded this evidence under Fed. R. Evid. 402 ("Evidence which is not relevant is not admissible.").  Oxycal's attempt to support its claim for damages by reference to the FTC investigation was overly speculative.  The letter at issue mentioned the FDA not the FTC.  Oxycal could only trace the letter to the subcommittee with oversight of the FTC, not to the FTC itself.  Finally, Oxycal could not prove that the FTC's investigation was more likely caused by this particular letter than by Patrick's previous public condemnations of Oxycal's product.  In light of these serious problems with this evidence, the USCA could not conclude that its exclusion was an abuse of discretion.
      Finally, the USCA considered the district court's computation of Prentice damages.  Oxycal claimed that the district court improperly refused to award Prentice damages to compensate Oxycal for its expenses incurred in the original enforcement action.  The USCA disagreed.  Under California law, a "person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred."  Prentice v. N. Am Title Guar. Corp., 381 P.2d 645, 647 (Cal. 1963) (en banc).  The district court held that the expenses incurred in Oxycal's initial enforcement action "were not reasonably incurred in attempting to enforce the Settlement Agreement between plaintiffs and defendant Alacer Corporation."  In the initial action, the court only had jurisdiction to enforce the permanent injunction entered based on the settlement agreement;  enforcement of the settlement itself required a second cause of action.  Oxycal's unsuccessful attempts at enforcement in the initial action are distinct.  The damages were not recoverable as Prentice damages under its tort claims in the current action.

4)  BANKRUPTCY / SANCTIONS: In re Olson, 99-56191 (9th Cir. Apr. 6, 2001) (unpublished).  Beezer, T.G. Nelson, and Berzon, Circuit Judges.
        Olson appealed a BAP decision reversing a bankruptcy court's discovery sanction excluding all of the plaintiffs' exhibits, expert testimony, and evidence of damages, and dismissing plaintiffs' adversary proceeding.
       The USCA affirmed.  The bankruptcy court properly determined that the plaintiffs' damage calculation and expert report were too disorganized, incomplete and confusing to satisfy the disclosure requirements of FRCP 26.  Because of the ambiguous and disputed statements of the parties, as well as the fact that Olson proceeded without legal representation during the discovery period, the USCA concluded that the bankruptcy court did not abuse its discretion when it found that Olson did not waive his right to receive an adequate damages calculation and expert report.  The plaintiffs argued that, if their document failed to meet Rule 26 requirements, the bankruptcy court abused its discretion by excluding all of the plaintiffs' exhibits, expert testimony and evidence of damages, and by dismissing the plaintiffs' adversary proceeding.  Whether a dismissal sanction is proper requires consideration of:  (1) the public's interest in expeditious resolution of litigation;  (2) the court's need to manage its dockets;  (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.  Dismissal sanctions are generally inappropriate absent a finding of "willfulness, fault, or bad faith."  Although the bankruptcy court's evidential sanction was not an outright dismissal, the USCA found it tantamount to one and thus applied the above factors.  The Circuit also considers:  (1) the explanation, if any, for the party's failure to comply with the discovery order;  (2) the prejudice to the opposing party of allowing the witnesses to testify;  (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witnesses' testimony.  The USCA concluded that the sanctions imposed by the bankruptcy court amounted to an abuse of discretion.  First, the plaintiffs acted in good faith, which the bankruptcy court apparently acknowledged.  The plaintiffs had a reasonable, good faith belief that Olson had agreed that plaintiffs' disclosures in the original state court action would satisfy the disclosure requirements in the bankruptcy case.  In the state court action, the parties had completed discovery, litigated a motion for summary judgment, and proceeded to the first day of trial, which Olson avoided by filing for bankruptcy.  In the bankruptcy proceeding, Olson did not object to the plaintiffs' status report declaration stating, "Plaintiffs believed there was no need to exchange documents beyond those exchanged as exhibits in the State Case."  Olson joined a status report indicating the same.  Moreover, Olson did not ask the plaintiffs to produce a damages calculation or an expert report and did not move to compel production of the same.  Olson waited until one week before the scheduled trial date to object to the plaintiffs' disclosures.  The evidentiary sanction was tantamount to a dismissal.  The plaintiffs' good faith, by itself, rendered the sanction an abuse of discretion.  Second, the prejudice to Olson was minimal because, during the state court action, the plaintiffs produced the exhibits they intended to introduce at the bankruptcy proceedings.  Also, Olson could have avoided any such prejudice by simply asking the plaintiffs to provide the additional disclosures.  Third, the evidence excluded by the bankruptcy court (i.e., all of the plaintiffs' exhibits, expert testimony, and damages evidence) was critical.  For lack of evidence, the plaintiffs could not present a prima facie case and, as a result, the bankruptcy court dismissed the entire action.  Fourth, less drastic sanctions were available.  The bankruptcy court could reset the trial date to allow the plaintiffs the time to remedy the discovery violations.  If the court determined that a continuance was not warranted, it could have limited the plaintiffs' expert testimony and damages evidence to matters disclosed in their exhibits.  Moreover, the court did not warn the plaintiffs that, if they failed to prepare an adequate damages calculation and expert report, it would exclude almost all their evidence and then dismiss the case.  Fifth, although the bankruptcy court has a cognizable interest in managing its docket and resolving cases expeditiously, these interests do not justify the exclusion of almost all the evidence offered by the plaintiffs, who reasonably and in good faith believed their were in compliance with disclosure requirements.

5)  BANKRUPTCY: In re Larry's Apartment, L.L.C., 99-17112 (9th Cir. Apr. 2, 2001) (unpublished).  Sneed, Fernandez, and Kleinfeld, Circuit Judges.
       The District Court for Arizona, Judge Strand presiding, affirmed the bankruptcy court's order imposing a constructive trust against appellant Galam.  The order in favor of the estate was obtained by N.D. Duco Corporation and the Jarnigans (collectively "NDDC") and the trustee for the bankruptcy estate of Larry's Apartment, L.L.C. (the debtor).  Galam maintained that the order was improper.  The USCA affirmed.  First, Galam argued that the bankruptcy court erred when it permitted NDDC to participate in the adversary proceeding.  The USCA disagreed.  While the general rule is that only the bankruptcy trustee can initiate and pursue bankruptcy adverse proceedings on behalf of the estate, that does not mean that the bankruptcy court may not grant NDDC permission to participate in the adversary proceeding on a limited basis, which greatly benefits the estate.  The trustee was left in full control.  The court thus did not err.  In any event, the parties did not dispute that the trustee could pursue the matter;  Galam had no basis to complain that NDDC helped the estate recovery what it was due.  Second, Galam maintained that the bankruptcy court erred when it imposed a constructive trust over a parking lot for the benefit of the estate.  The USCA disagreed.  Galam's interest in, authority over, management of, and access to the debtor's business made him a fiduciary.  Galam breached this duty when he purchased the parking lot which was important to the conduct of the debtor's business.  It was not a defense that an entity did not have the financial ability to purchase the property where the fiduciary's mismanagement and misappropriation of corporate assets caused it to be insolvent.  Galam did not dispute this principle and it applies here.  Under the circumstances, it was appropriate for the bankruptcy court to impose a constructive trust over the parking lot in favor of the estate.  Third, Galam took issue with the bankruptcy court's decision that he was not entitled to be reimbursed for his investment in the parking lot.  The parties agreed that, in general, when a fiduciary breaches his fiduciary duty by usurping a corporate opportunity, and the court imposes a constructive trust, the corporate officer is entitled to be reimbursed for his costs.  However, the bankruptcy court held that the estate was not required to reimburse Galam for the cost of the parking lot because Galam had misappropriated assets from the estate in excess of the cost of the parking lot.

6)  BANKRUPTCY: In re Mazur, 99-56848 (9th Cir. Apr. 30, 2001) (unpublished).  Pregerson, Fernandez, and Graber, Circuit Judges.   Breitman appealed a BAP order affirming a bankruptcy court order granting a trustee's motion to avoid a transfer of jewelry from debtor Mazur to Breitman.  The USCA affirmed.  Breitman maintained that the bankruptcy court erred when it found that Mazur's transfer to her was fraudulent.  The USCA disagreed.  The facts show that Mazur had significant unpaid debt at the time of the transfer.  Breitman thus bore the burden of persuading court either that a reasonably equivalent exchange occurred or that Mazur was solvent when the transfer took place.  Breitman did not show that there was a material issue of fact over whether, from the perspective of the creditors, the value of the service that she provided was reasonably equivalent to the value of the jewelry she received.  Nor did the evidence she presented suffice to create a material issue about Mazur's insolvency.  In fact, she rested her case on Mazur's implausible assertion that he had great wealth at the time.

7)  BANKRUPTCY / AUTOMATIC STAYS: In re Rogers, 00-16683 (9th Cir. Apr. 4, 2001) (unpublished).  Wright, Choy, and Ferguson, Circuit Judges.
        Rogers appealed the BAP's affirmation of the bankruptcy court ruling which had dismissed her complaint against California Federal Bank ("CalFed") for failure to state a claim.  Her complaint alleged conspiracy, intentional infliction of emotional distress, wrongful disclosure, conversion, abuse of process, and interference with contractual interest, all in connection with CalFed's foreclosure on a property during an automatic stay that was retroactively annulled by the bankruptcy court.  Rogers claims on appeal that the bankruptcy court erred in annulling the automatic stay and that it lacked jurisdiction over the present complaint.  The USCA disagreed and affirmed the bankruptcy court's dismissal of Rogers' claims.  First, Rogers asked the USCA to reconsider the bankruptcy court's annulment and to reinstate the automatic stay.  She argued that CalFed failed to establish the extreme circumstances that would justify a retroactive annulment, and that the doctrine of "clean hands" should have prevented CalFed from benefiting from the annulment.  The annulment of the stay was not properly before the USCA.  Although orders granting relief from an automatic stay are final orders, appealable to the Court of Appeals, Rogers did not appeal the bankruptcy court's order granting relief from the stay.  Instead, she filed a complaint in state court claiming that CalFed violated the stay.  That complaint is at issue in this case, not the preceding annulment of the automatic stay.  Rogers' request to reconsider the bankruptcy court's annulment was not properly before the USCA.  Second, Rogers argued that the bankruptcy court lacked jurisdiction to consider the current complaint.  She claimed that CalFed waived its right to remove the case to federal court and that the  bankruptcy court lacked subject matter jurisdiction.  However, Rogers did not raise the issue of improper removal before the bankruptcy court.  In her reply brief, she justified her conduct by claiming that she is allowed to challenge jurisdictional issues on appeal.  Although she is correct that subject matter jurisdiction can be raised at any time, objections to removal defects must be raised within 30 days after the filing of notice of removal.  Because Rogers did not object to removal before the bankruptcy court, the USCA considered only whether the bankruptcy court would have had original jurisdiction.  Rogers maintained that the bankruptcy court lacked subject matter jurisdiction because whether a debtor has an interest in property is determined by state law.  However, her complaint alleged a violation of the automatic stay, which is governed by federal law.  Federal courts have subject matter jurisdiction over cases arising under Title II.  The bankruptcy courts in particular have jurisdiction.  The bankruptcy court thus properly exercised jurisdiction over this case.

8)  BANKRUPTCY: In re Verit Industries, Inc., 99-17434 (9th Cir. Apr. 10, 2001) (unpublished).  Fernandez and Kleinfeld, Circuit Judges, and Moskowitz, District Judge.
       The District Court for Arizona, Judge Sedwick presiding, affirmed the bankruptcy court's denial of a motion by Verit Hotel Leisure Ltd. ("VHL") to set aside a default judgment on the ground that the bankruptcy court's prior determination that it had personal jurisdiction over VHL was entitled to res judicata effect.  It also affirmed the bankruptcy court's order granting the trustee's motion for a declaration of constructive trust over stock that was the subject of the default judgment.  VHL appealed.
      The USCA reversed and remanded.  VHL maintained that the default judgment entered against it should be vacated because the bankruptcy court did not have personal jurisdiction over it.  The district court affirmed the bankruptcy court's denial of VHL's motion to set aside the default judgment and held that VHL was barred from arguing lack of personal jurisdiction in connection with its motion to set aside the default judgment.  Relying on USA v. Van Cauwenberghe, 934 F.2d 1048 (9th Cir. 1991), the district court reasoned that because VHL made a special appearance to contest personal jurisdiction on March 18, 1996, the bankruptcy court's determination that it had personal jurisdiction over VHL was res judicata.  The USCA agreed that when a defendant submits to the jurisdiction of the court for the limited purpose of challenging jurisdiction, that defendant agrees to abide by that court's determination on jurisdiction:  that decision is res judicata on that issue in any further proceedings.  However, VHL was not actually afforded the opportunity to challenge the bankruptcy court's jurisdiction.  At the March 18, 1996 hearing, counsel for VHL indicated that there were jurisdictional issues that needed to be resolved and asked the bankruptcy judge for leave to make his argument in writing.  Counsel for VHL did not make any substantive arguments regarding jurisdiction at this hearing.  The bankruptcy judge stated that he would review the matter and would take into consideration the parties' positions.  However, in a minute order entered later that day, the bankruptcy judge concluded "it is untimely to object to jurisdiction and therefore default judgment is appropriate."  VHL was not given the opportunity to present arguments to the contrary.  The bankruptcy court essentially precluded VHL from challenging the court's jurisdiction.  The USCA thus distinguished this case from Van Cauwenberghe and found res judicata inapplicable.  VHL has a right to be heard so it can challenge the court's exercise of personal jurisdiction.  VHL was entitled to argue lack of jurisdiction in connection with its motion to set aside the default judgment.  The district court erred in affirming the bankruptcy court's denial of the motion.  The USCA reversed the district court's order and instructed the district court to remand the case to the bankruptcy court for a determination of whether the default judgment should be vacated due to the lack of personal jurisdiction over VHL.  Because the issue of personal jurisdiction has not been resolved, the USCA noted that the bankruptcy court's order granting the trustee's motion for a declaration of constructive trust and the supplemental judgment thereon must be vacated.

9)  INSURANCE LAW: Cerplex, Inc. v. Chubb Group of Insurance Companies, 99-17323 (9th Cir. Apr. 16, 2001) (unpublished).  Sneed, Fernandez, and Kleinfeld, Circuit Judges.
        The District Court for the Northern District of California, Judge Walker presiding, entered summary judgment for the Federal Insurance Companies and Vigilant Insurance Company (collectively "Insurers") in this diversity action alleging that the defendants breached the "all-risk" insurance contracts they entered into with Cerplex when they denied its claim that Solution Technology Group ("STG") had stolen its property.  Cerplex appealed.  The USCA affirmed.  It was not error for the district court to conclude that STG's purloining of the phones upon being entrusted with them was an act of dishonesty which was excluded from coverage under the policy.  There was no evidence tending to show that STG had a design to mislead Cerplex at the outset of the relationship.  Similarly, the USCA found it clear that a bailment relationship was created between the parties because Cerplex contracted with STG, handed the phones to STG to be repaired and stored, never gave up title to them, and expected them to be returned to it or shipped as it directed at a later date.  The attempt to shift the risk of loss to Cerplex did not change the result.  While in some instances public policy dictates that a bailee may not exempt itself from liability, an attempt to do so does not invalidate the bailment.

10)  ARBITRATION / SANCTIONS: Entertainment Publications v. Ravet, 99-56801 (9th Cir. Apr. 17, 2001) (unpublished).  Boochever and Silverman, Circuit Judges, and George, District Judge.
       Ravet and his corporation, Promark, appealed orders of the District Court for the Southern District of California, Judge Whelan presiding, affirming arbitration awards and terminating related cases.  The USCA affirmed.  The appellants maintained that the district court erred in affirming the arbitration awards because the arbitrator exceeded his authority by deciding issues outside the scope of the parties' settlement agreement.  The USCA disagreed.  Consistent with the strong public policy favoring arbitration, the USCA will not disturb an arbitration order so long as the arbitrator arguably construes the contract and acts within the scope of his authority.  While the appellants disagree with several of the arbitrator's rulings, they offered no evidence that the arbitrator exceeded his authority.  Their claim thus failed.  The appellants also argued that the arbitrator was biased and denied them a full and fair opportunity to advance their claims.  However, they failed to produce specific facts showing arbitrator bias.  Although the arbitrator expressed disappointment with Ravet's conduct during the litigation, his criticism was not unwarranted nor did it rise to the level of personal animus.  Indeed, the record reflects that the arbitrator showed remarkable impartiality, even in the midst of Ravet's personal attacks.  Entertainment Publications, Inc. ("EPI") requested sanctions under 28 USC Secs. 1912, and 1917 and Fed. R. Appellate Proc. 38.  The USCA agreed that the appellants, failing to recognize the Circuit's limited review of arbitration awards, advanced a meritless challenge to the district court's orders.  It thus awarded EPI its reasonable attorneys' fees and costs associated with this appeal.

11)  ARBITRATION: American Telephone & Telegraph Company v. United Computer Systems, Inc., 99-56846 (9th Cir. Apr. 16, 2001) (unpublished).  Leavy, Trott and Silverman (concurring), Circuit Judges.
         The District Court for the Central District of California, Judge Lew presiding, confirmed an arbitral panel's denial of United Computer System's claims against AT&T and Lucent Technologies, Inc. (collectively "AT&T").
        The USCA affirmed.  The first issue is what law governs the parties' arbitration.  Under the Federal Arbitration Act, parties are free to enter into contracts providing for arbitration under rules established by state law rather than under rules established by the FAA.  Here, the questions was whether the parties to the underlying contract chose federal, California, or New Jersey law to govern their arbitration.  United Computer Systems ("UCS") asserts that AT&T and UCS agreed to abide by California law.  The USCA disagreed.  The portion of the contract cited by UCS in support of its assertion selects California as the forum state for arbitration;  it does not select California law as the governing law.  Instead, it provides that any arbitration shall be "in accordance with the rules of the American Arbitration Association then in effect."  The contract also contains a "Controlling Law" provision stating that it "shall be construed and controlled by the laws of the State of New Jersey."  UCS nonetheless asserts that California arbitration law applies because that was the intent of the parties.  The USCA disagreed.  Other than the parties' choice of California as the forum state, UCS submitted no evidence that the parties intended California arbitration law to govern their arbitration.  The contract between UCS and AT&T is similar to the contract reviewed in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 US 52 (1995), which contained a choice-of-law provision that selected New York law, and an arbitration provision stating that "any controversy" arising out of the transaction between the parties "shall be settled by arbitration" in accordance with the rules of the National Association of Securities Dealers.  The Supreme Court stated that the contract "should be read to give effect to all its provisions and to render them consistent with each other," and concluded that the contractual provision choosing the law of a particular state encompasses the substantive law of that state, but does not encompass the law of that state with respect to the allocation of authority or power between the courts and the arbitrators.  Applying Mastrobuono, grounds for vacatur of the award are controlled by the FAA rather than New Jersey law, as a state law concerning the extent to which an arbitral award is reviewable by the courts and the grounds upon which courts may vacate such an award affects the allocation of authority between courts and arbitrators.
          UCS next made 13 arguments in support of its assertion that the district court erred when its denied UCS's motion to vacate the award.  The USCA considered each argument within the framework of Sec. 10 of the FAA which lists the grounds for vacatur of an arbitration award.  Those grounds include proof that an award was procured by corruption, fraud or undue means, resulting from arbitrator's evidence partiality, corruption, or misconduct which prejudiced the rights of any party, or that the arbitrators exceeded their powers.  Under A.G. Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401 (9th. Cir. 1992), federal court review of arbitration awards is extremely limited.  It is generally held that an arbitration award will not be set aside unless it evidences a manifest disregard for law.  As to UCS's argument, it first maintained that Costello's disqualification was mandatory because he had prior personal knowledge of disputed evidentiary facts. Alternatively, UCS argued that the failure of the American Arbitration Association ("AAA") to disqualify Costello because of his prior knowledge meant that the award was procured through "undue means."  The USCA held that the district court did not clearly err when it found that UCS waived this objection by failing to raise it in a timely manner.  Moreover, the AAA's denial of UCS's request to disqualify Costello did not cause the award to be procured by undue means.  UCS also argued that Costello's failure to disclose his 1991 contact with Klinger and Stanwyck constituted a basis for vacatur.  However, the USCA noted that failure to disclose information is not a ground for vacating an arbitration award under the FAA.  Second, UCS argued that the request for Costello's curriculum vitae created "evident partiality" requiring vacatur under federal law.  The party channeling the arbitration decision has the burden of showing partiality.  The integrity of the arbitrator's decision is directly at issue in actual bias cases, where "the court must find actual bias."  UCS did not carry its burden of showing that the request for Costello's curriculum vitae cause him to be biased in favor of AT&T.  Third, UCS argued that Costello's inquiry concerning Klinger's representation of Stanwyck was an ex parte communication constituting corruption.  Under Pacific Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp., 925 F.2d 1019 (9th Cir. 1991), "ex parte evidence to an arbitration panel that disadvantages any of the parties in their rights to submit and rebut evidence violates the parties' rights and is grounds for vacation of an arbitration award."  UCS did not assert that Costello's communication with Klinger caused it an disadvantage.  Moreover, Klinger was never called as a witness in the arbitration proceeding.  The USCA thus rejected this as a ground for vacating the award.  Fourth, UCS argued that Costello's statement in his December 24, 1998 memo that Stanwyck had agreed at the meeting on November 10 "that the correspondence I sent to Mr. Stanwyck in 1981 will not affect my ability to serve in this arbitration" was false, constitutes corruption, and requires vacatur under 9 USC Sec. 10(a)(2).  However, the USCA held that this statement did not constitute corruption.  Three other attorneys present at the November 10 meeting shared Costello's view that Stanwyck had so agreed.  Fifth, UCS asserted misconduct requiring vacatur occurred when Costello sustained AT&T's objection to the testimony of Lee Cutliff.  Under Sec. 10(a)(3) a court may vacate an arbitration award where the arbitrators were guilty of misconduct in refusing to hear evidence pertinent and material to the controversy.  However, the USCA noted that a showing of prejudice is a prerequisite to relief based on an arbitration panel's evidentiary rulings. And UCS made no showing of prejudice.  The USCA thus rejected this argument for vacatur.  Sixth, the USCA rejected UCS's assertion that Costello exceeded his powers on December 24, 1998, when he unilaterally ordered Stanwyck to file and serve papers in response to a motion by AT&T.  UCS requested that discovery issues be resolved unilaterally and suggested Costello as the decision-maker.  The arbitral panel designated Costello to decide discovery disputes.  Seventh, UCS maintained that the award was procured by "corruption, fraud, or undue means," because at the time AAA was deciding whether to disqualify Costello, AAA was soliciting and receiving financial contributions from AT&T.  UCS further asserted that AAA had a conflict because it had a business and social relationship with Costello.  However, the USCA found that UCS's assertions about AAA did not provide a basis for vacatur under the FAA.  Eighth, UCS argued that the arbitral panel failed to decide its claim for anti-trust violations.  The decision of the arbitral panel states:  "Claimant United Computer Systems, Inc. is denied all recovery on all claims and counterclaims made herein."  UCS submitted no evidence that the panel's decision did not encompass its anti-trust claim.  Moreover, the panel made several preliminary rulings related to that claim.  Under A.G. Edwards & Sons, "arbitrators are not required to state the reasons for their decisions."  This rule, the USCA noted, presumes the arbitrators took a permissible route to the award where one exists.  The USCA thus concluded that the arbitrators decided UCS's anti-trust claim.  Ninth, the USCA rejected UCS's assertion that the award is inconsistent with a prior arbitral panel ruling that UCS's motion to disqualify counsel was moot.  Tenth, UCS argues that the arbitral panel exceeded its authority when it stated that "all claims arising out of or relating to the License Agreement either have been or could have been litigated in his arbitration."  The arbitration clause encompasses "any controversy or claim arising out of or relating to this Agreement."  Thus the USCA concluded that the arbitral panel had authority to make this decision.  Moreover, the issues was raised during the arbitration and UCS agreed that it had asserted all claims against AT&T.  Thus, this argument lacked any merit.  Eleventh, Contrary to UCS's assertion, Costello's conduct during the March 1, 1999, arbitration session when UCS attempted to serve Costello with the complaint it had filed in state court naming him as a defendant is not a basis for vacatur of the award.  Twelfth, UCS asserts that the arbitral panel failed "to evidence any cognizance of UCS's" claim that AT&T did not have standing.  UCS initiated the arbitration, naming AT&T and Lucent as respondents.  Moreover, there is no requirement that arbitrators address each claim separately.  Thirteenth, as its final argument, UCS claims that the arbitral panel ignored the res judicata effect of an earlier arbitration.  The arbitration that is the subject of this appeal raised claims separate from those raised in the earlier arbitration.  Thus, there could be no res judicata effect.
        Concurring, Judge Silverman said he agreed with the disposition of this case but would grant AT&T's request for sanctions because UCS's eleventh-hour motion to dismiss for lack of jurisdiction was patently frivolous.

12)  ARBITRATION: The Southern California, Arizona, Colorado, and Southern Nevada Glaziers Architectural Metal and Glass Workers Pension Trust v. Sardagna, et al., 99-56731 (9th Cir. Apr. 11, 2001) (unpublished).  Boochever and Silverman, Circuit Judges, and George, District Judge.
        Sardagna appealed an October 22, 1999 order of the District Court for the Central District of California, Judge Rea presiding, which denied his motion to refer the case to a pending arbitration and granted Glaziers Trust's motion to consolidate the parties and claims from the pending arbitration in the instant action.
        The USCA affirmed.  Sardagna challenged the district court's application of Sec. 1281.2(c) of the California Code of Civil Procedure, contending that the district court should have resolved the motion under the Federal Arbitration Act ("FAA").  The USCA disagreed.  Under the FAA, contracting parties are generally free to structure their arbitration agreements as they see fit and may specify the rules under which arbitration will be conducted.  Here, the parties' arbitration agreement provided that "all questions in respect to procedure … and the enforceability of this Agreement to arbitrate … shall be resolved according to the law of the State of California."  The USCA thus concluded that the district court correctly determined that Sardagna's motion should be decided under California law.  Alternatively, Sardagna maintained that even if Sec. 1281.2(c) applies, the district court had no authority under Sec. 1281.2(c) to deny its arbitration request.  The USCA disagreed.  Section 1281.2(c) provides that "if the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party … the court may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding."  Here, the district court concluded that because Glazier's claims implicated third party defendants not subject to the arbitration agreement, joinder was necessary to protect the parties from potentially conflicting, piecemeal resolutions in multiple forums.  The USCA concluded that the district court's ruling fell within its discretion under Sec. 1281.2(c).

13)  AMERICANS WITH DISABILITIES ACT: Jensen v. GTE Northwest, Inc., 98-35772 (9th Cir. Apr. 13, 2001) (unpublished).  B. Fletcher and Fisher, Circuit Judges, and Schwarzer, District Judge.
        Jensen worked for GTE Northwest from 1992 to 1995.  In early 1994, she began suffering severe back pain due to a degenerative disc disease.  She sought a series of workstation modifications, medical leave, and part-time work options from GTE in order to accommodate her disability.  She eventually brought suit in state court alleging that GTE failed to reasonably accommodate her disability in violation of the Americans with Disabilities Act ("ADA") and the Washington Law Against Discrimination ("WLAD").  She also brought claims of negligent infliction of emotional distress and the intentional tort of outrage.  Following removal, the District Court for the Western District of Washington, Judge Rothstein presiding, granted GTE summary judgment on all claims.
       The USCA affirmed.  GTE did not contest that it is a covered employee or that Jensen was an oth-erwise qualified individual with a disability.  Thus, with respect to the ADA and WLAD claims, the only issue was whether GTE made reasonable accommodations with regard to Jensen's disability.  Both the ADA and WLAD require an employer to make reasonable accommodations to an employee's disability unless the employer can demonstrate that the accommodation would impose an undue hardship on its business.  Crucial to the reasonable accommodation determination is an interactive process by which employer and employee must make reasonable efforts and exercise good faith.  So long as the accommodation offered by the employer is reasonable, neither the ADA nor the WLAD require an employer to provide the precise accommodation the employee requests.  Viewing the evidence in the light most favorable to Jensen, the USCA held that GTE participated in the interactive process in good faith and made reasonable accommodations that largely conformed to Jensen's specific requests within reasonable periods of time.  In April of 1994, Jensen requested a modified workstation so she could stand while working.  Jensen's supervisor informed her that she needed a note from her physician describing her workplace needs.  Upon supplying her supervisor with the note, GTE almost immediately supplied Jensen with the requested standing workstation.  Uncomfortable with this arrangement, Jensen next requested a high orthopedic chair to use at her "standing" station.  Within approximately one month, and following some back and forth with Jensen's doctor and GTE's safety supervisor, GTE provided Jensen with the high orthopedic chair she requested.  During the same time period, Jensen was permitted to take additional time off for doctor's appointment, chiropractor and physical therapy sessions.  She made no complaints to GTE for approximately one year after being provided the workplace modifications she sought.  However, at a week long training session in May of 1995, she was not provided the orthopedic chair accommodation she requested.  Although this was irresponsible on GTE's part, upon learning that the accommodation had not been made, Jensen did not seek to be excused from the training, nor did she make further requests for accommodation for the week long training period.  In light of the very short duration of the training class, the USCA found insufficient evidence of bad faith or unreasonableness on GTE's part.  In May 1995, Jensen was relocated to a new facility.  Rather than providing Jensen with the same workstation modification that had proven successful previously (a high drafting desk and high orthopedic chair), GTE provided her with a sit/stand workstation, which allowed her to adjust her computer height electronically.  She was also provided with a standard height, orthopedic chair to use while sitting.  She soon complained that she was experiencing pain using this workstation.  GTE's response complaint appeared to the USCA to be a bit rigid and bureaucratic:  She was told that only lead customer representatives were allowed to have high chairs.  Nevertheless, approximately one month later when Jensen again complained to her supervisor, GTE continued to take part in the interactive process.  Because GTE thought that the adjustable height workstation and low orthopedic chair met Jensen's medical needs as it understood them, GTE asked for additional documentation from her doctor.  Within six days of receiving further medical documentation, Jensen was provided with the high orthopedic chair she requested.  Finally, in August of 1995, four discs in Jensen's neck ruptured.  She was in severe pain and took paid medical leave from August 2 until August 31.  Upon her return, she had difficulty bending her neck downward and requested a slanted writing station.  On her first day back at work, she met with her supervisor and a GTE safety administrator.  They discussed slated desk accommodation and took measurements of her work station.  Following this and because of continuing pain she was experiencing, Jensen took paid medical leave from September 12 until September 25, 1995.  When she returned, GTE had heightened her desk as requested, but had not provided a slanted desk.  The following day, Jensen was given a computer monitor stand that could be adjusted to create a slanted writing surface.  Thus, at this point, Jensen had all that she requested:  a high orthopedic chair, a specially equipped sit/stand workstation with a monitor and keyboard and table section that could be moved electronically to her individual standing or sitting height, a stationary desk that had been custom built to her height, and an adjustable desktop pedestal with a slanted surface.  The undisputed facts portray GTE as fully and in good faith engaged in the interactive process as required by the ADA and WLAD.  Although occasionally a bit bureaucratic in their responses, GTE provided Jensen with paid medical leave and part-time work schedule upon request;  immediately discussed adjusted work-place options with her;  provide reasonable and tailored accommodation for her disability in a fairly timely fashion; and ultimately (within a matter of days or weeks) supplied Jensen with all that she requested.  The USCA thus held that Jensen failed to demonstrate a genuine issue of material fact that would lead a reasonable jury to conclude that GTE acted in an unreasonable or bad-faith manner. 
       In dismissing Jensen's negligent infliction of emotional distress claim, the district court relied on Chea v. Men's Warehouse, 932 P.2d 1261 (Wash. Ct. App. 1997), and held that Jensen's claim depended upon the same factual basis as her discrimination claim.  Chea held that a separate claim for emotional distress is not compensable when the only factual basis for the emotional distress is the discrimination claim.  In Chea, a jury awarded the plaintiff damages based on both a race discrimination claim and negligent in-fliction of emotional distress claim.  The court's analysis in Chea is focused entirely on the prohibition against double recovery under different legal theories.  Because the district court below granted GTE's summary judgment motion on the ADA and WLAD claims, reliance on Chea is inapposite.  Since the ADA and WLAD claims have been dismissed, double recovery under the negligent infliction of emotional distress claim is impossible.  Nevertheless, a district court's grant of summary judgment may be affirmed if it is supported by any ground in the record, whether or not the district court relied on that ground.  Here, Jensen's negligent infliction of emotional distress claim can be dismissed because she does not raise a genuine issue of material fact.  Under Washington law, an employee can establish a claim of negligent infliction of emotional distress by showing:  (1) that her employer's negligent acts injured her;  (2) the acts were not a workplace dispute or employee discipline;  (3) the injury is not covered by the Industrial Insurance Act; and (4) the dominant feature of the negligence claim was the emotional injury.  The USCA concluded that the record did not support a showing of either element (1) or (2).  And, as discussed above, GTE provided Jensen with reasonable accommodation.  Since there is no a genuine issue as to GTE's reasonableness, there is no genuine issue as to whether GTE was negligence.  Moreover, neither Jensen's complaint nor her supporting documents assert any emotional injury, let alone that emotional injury is the dominant feature.  The USCA thus affirmed the district court's dismissal of this claim on this separate ground.
     Jensen also alleged that GTE's actions were sufficient to support a claim of outrage, especially in light of the power differential between employer and employee.  Under Washington law, to state a claim of outrage, Jensen had to demonstrate conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."  Dicomes v. Washington, 782 P.2d 1002 (Wash. 1989), quoting, in turn, Grimsby v. Samson, 530 P.2d 291 (Wash. 1975).  Jensen failed to allege any facts that satisfy this high standard.  Although the question of whether certain conduct is sufficiently outrageous is ordinarily for the jury, it is initially for the court to determine if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.  The USCA concluded that the record demonstrates that reasonable minds could not so differ in the instant case.

14)  TAXATION:  Kudo v. CIR, 99-70947 (9th Cir. Apr. 6, 2001) (unpublished).  Schroeder, Hall, and W. Fletcher, Circuit Judges.
        The USCA affirmed the tax court's decision upholding deficiencies and penalties.  First, the USCA noted that a tax court decision is reviewable only if there is a controversy between the taxpayer and the Government regarding the amount of taxes due.  Here, Toraya Corporation was found to have no deficiencies.  If Toraya were to prevail on appeal, it would still have no deficiencies.  The USCA thus lacked jurisdiction to hear Toraya's appeal.  Second, Toraya argued that collateral estoppel would prevent it from challenging the tax court's findings in the future.  The fact that Toraya could not appeal, however, would militate against a future collateral estoppel claim by the CIR.  At oral argument, counsel for the CIR conceded that the tax court's opinion would not collaterally estop Toraya in the future from litigating the finding that it received unreported income, should it turn out that this finding has tax consequences for other years.  Third, the remaining appellants argued that the CIR did not link all of the unreported income to a particular source.  However, the USCA found this contention unpersuasive as the CIR was not required to show such a link.  Under Hardy v. CIR, 181 F.3d 1004 (9th Cir. 1999), if the CIR introduces evidence that the taxpayer received unreported income, the burden shifts to the taxpayer to show by a preponderance of the evidence that the deficiency was either arbitrary or erroneous.  The CIR provided evidence of unreported income in the form of bank deposits and cash purchases and the appellants have not met their burden of showing that the deficiency was erroneous.  Fourth, the appellants defend against the assessment of penalties by arguing good faith reliance on the accountant who prepared their returns.  However, the USCA noted that such a reliance is not a defense to a late payment penalty.  Good faith reliance on a tax preparer is justified with respect to the other penalties, but only if the taxpayer has proved the tax preparer with all necessary information.  The tax court found that the taxpayers did not maintain adequate records.  Moreover, it found that they did not supply the tax preparer with records, such as bank records, that would have allowed the pre-parer to prepare an accurate return.  The USCA thus found no clear error in the tax court's finding.

15)  TAXATION:  Velez v. Mohiuddian, 99-56911 (9th Cir. Apr. 30, 2001) (unpublished).  Pregerson, Fernandez, and Graber, Circuit Judges.
        The District Court for the Central District of California, Judge Wilson presiding, dismissed Velez's Bivens and common law tort claims against IRS officer Mohiuddian.  The USCA affirmed.  First, the Bivens claim was filed more than one year after the alleged wrong.  It was time barred.  Second, the Federal Tort Claims Act limits tort actions against federal employees acting within the scope of their employment.  The Attorney General certified that Mohiuddian acted within the scope of her employment.  That certification removed Mohiuddian as the defendant and substituted the United Stated in her place.  Velez contested this certification, claiming that Mohiuddian did not act within the scope of her employment.  The USCA disagreed.  The Attorney General's certification is "prima facie evidence that a federal employee was acting in the scope of her employment at the time of the incident."  Billings v. USA, 57 F.3d 797 (9th Cir. 1995).  If the certification is contested, the party seeking review bears the burden of refuting the certification by a preponderance of the evidence, although the USCA reviewed the district court's ultimate decision de novo.  Velez did not demonstrate that Mohiuddian failed to act within the scope of her employment, and, indeed, Velez's evidence shows the contrary.  Mohiuddian acts were the obtaining and levying of an entry order.  Those actions were incidents of her job as an IRS officer.  Even if they were not perfectly performed, a matter which the USCA did not decide, under California law they were within the scope of the IRS's enterprise.

16)  ENVIRONMENTAL LAW / STANDING:  Kettle Range Conservation Group v. U.S. Forest Service, 00-35798 (9th Cir. Apr. 20, 2001) (unpublished).  Thompson, Trott, and Paez, Circuit Judges.
        Kettle Range Conservation Group and Leavenworth Audubon Adopt-A-Forest filed this action against the Forest Service and some of its employees under the National Environmental Policy Act, challenging the Forest Service's selection of one of several ecosystem restoration plans proposed in response to a serious Douglassfir beetle outbreak in Idaho and Washington.  The District Court for the Eastern District of Washington, Judge Quackenbush presiding, ordered the parties to file supplemental memoranda on standing.  Plaintiffs complied and simultaneously moved under FRCP 6(b) to enlarge time for filing four additional declarations, which they attached to the motion.  The district court found that the plaintiffs' reason for delay was not "excusable neglect" and denied the motion to enlarge time.  Concluding that one remaining declaration did not establish plaintiffs' standing, the district court dismissed the action for lack of jurisdiction.
        The USCA reversed the district court's denial of plaintiffs' motion to enlarge time.  The government has not argued (and the USCA did not see) prejudice or bad faith on plaintiffs part.  Moreover, the district court had noted the case's rapid progress.  Furthermore, the government conceded that at least one of the plaintiffs' new declarations demonstrated plaintiffs' standing.  The USCA noted that, at the time the dis-trict court decided plaintiffs' motion to enlarge time, it did not have the benefit of Bateman v. U.S. Postal Service, 231 F.3d 1220 (9th Cir. 2000), which sets for their the correct procedure and standard.  As in Bateman, the USCA here found that the equities weigh in plaintiffs' favor.  The USCA thus remanded to the district court with instructions to grant the Rule 6(b) motion.  As a result, the USCA did not reach plaintiffs appeal from the dismissal for lack of jurisdiction.