2)  INTELLECTUAL PROPERTY:  Columbia Pictures industries v. Krypton Broadcasting of Birmingham, 99-56215 (9th Cir. July 9, 2001). The ruling of Feltner v. Columbia Pictures Television, 523 US 340 (1998), that the statutory damages provision of the Copyright Act violates the Seventh Amendment to the extent the Act fails to provide a right to jury trail on all issues pertinent to an award of statutory damages under Sec. 504(c) of the Act, did not render the entire statutory damages provision constitutionally unen-forceable.  Pregerson (author), Silverman, and Tallman, Circuit Judges.  W. Shibley of Long Beach, CA, for the defendant-
appellant;  H. Tashman of Los Angeles, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  BANKING LAW:  Western Surety Co. v. Bank of Southern Oregon, 99-35844 (9th Cir. July 12, 2001).  Under Oregon law, an issuing bank, acting in good faith, may dishonor a draft on a letter of credit if presentation of the draft would facilitate the commission of a material fraud by the beneficiary;  to withstand summary judgment by establishing a claim for fraud, the bank had to show that there was a genuine issue of material fact as to the following elements: (1) a representation;  (2) its falsity;  (3) its materiality;  (4) the speaker's knowledge of its falsity or ignorance of its truth;  (5) the speaker's intent that it should be acted on by the person and in the manner reasonably contemplated;  (6) the hearer's ignorance of its falsity;  (7) his reliance on its truth;  (8) his right to rely thereon;  and (9) his consequent and proximate injury;  here the bank had not met its burden.  Goodwin, Greenberg (author), and Rawlinson, Circuit Judges.  W. Deatherage of Medford, OR, for the defendant-appellant;  J. Sokol of Portland, OR, for the plaintiff-appellee.    (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  BANKING LAW:  Delta Savings Bank v. USA, 98-56775 (9th Cir. July 12, 2001).  The FDIC faced a "manifest conflict of interest" when it, as the receiver of a bank, contemplated a lawsuit against the closely related Office of Thrift Supervision;  following First Hartford Corp. Pension Plan & Trust v. USA, 194 F.3d 1279 (Fed. Cir. 1999), a common-sense conflict of interest exception to the dictates of the Financial Institution Reform, Recovery and Enforcement Act of 1989 warranted granting standing to a representative of the bank.  B. Fletcher (author), Thomas, and Wardlaw, Circuit Judges.  T. Gorry of Los Angeles, CA, for the plaintiffs-
appellants;  S. Soni of Washington, DC, for the defendants appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  BANKRUPTCY:  In re Debbie Reynolds Hotel & Casino, Inc., 99-17240 (9th Cir. July 6, 2001).  Applying Hartford Under-writers Ins. Co. v. Union Planters Bank, 530 US 1 (2000), retroactively, the USCA held that the appellee lacked standing to seek a surcharge from a secured creditor;  immunizing language in a settlement agreement between the debtor and the secured creditor did not alter the appellee's legal rights and was properly approved by the bankruptcy court;  the surcharge secured pursuant to 11 USC Sec. 506(c) should be distributed directly to the debtor's counsel, whose services to the estate underlie the surcharge request.  Sneed (author), Fernandez, and Kleinfeld, Circuit Judges.  B. Olson and L. Schwartzer of Las Vegas, NV, for the appellants;  J. Alsup of Newport Beach, CA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY / TAXATION:  In re Ellett, 00-15128 (9th Cir. July 16, 2001).  A bankruptcy court may enjoin a state tax official from collecting state taxes discharged in a bankruptcy proceeding in which the state declined to participate;  while a bankruptcy discharge order is binding on states notwithstanding their election not to consent to the bankruptcy court's jurisdiction, a discharge order cannot be enforced against non-consenting states in an adversary proceeding where the state or a state agency is a named defendant  [See Memorandum # 9 below.]  O'Scannlain (author), Tashima, and Thomas, Circuit Judges.  K. Whitten of San Francisco, CA, for the defendant-appellant;  R. Kolb of Antioch, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 7)  TAXATION:  Schachter v. CIR, 99-71436 (9th Cir. The memorandum of March 22, 2001 has been redesignated an opinion dated July 3, 2001).  Taxpayers here were not entitled to a credit or offset for a previously paid criminal fine applied to a civil fine, as civil penalties for additions to tax are remedial in nature and primarily imposed to reimburse the Government for investigation expenses, to cover the monetary loss due to the taxpayer's fraud, and to protect revenue, while a criminal penalty imposed under 18 USC Secs. 3622 and 3623 is punitive in nature;  tax fraud is subject to both criminal and civil sanctions.  Hug (author), Noonan, and W. Fletcher, Circuit Judges.  M. Schainbaum of San Francisco, CA, for the appellants;  A. Muoio of Washington, DC, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  TAXATION:  Dykstra v. CIR, 00-70011 (9th Cir. July 25, 2001).  Treasury Regulation 1.79-3, which governs the determination of the amount of the cost of an employee's group-term life insurance that is includable in gross income, is not arbitrary, capricious, or contrary to the intention of its enabling statute.  Farris, Silverman, and Paez, Circuit Judges.  Per Curiam.  R. Dykstar pro se;  R. Baker of Washington, DC, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  COMMUNICATIONS LAW:  U.S. West Communications, Inc. v. Washington Utilities and Transportation Commission, 98-36013 (9th Cir. July 3, 2001).  U.S. West should compensate AT&T at the tandem rate, rather than the end-office rate, for traffic originating on U.S. West's network and terminating on AT&T's network;  AT&T is entitled to the tandem rate because its switches serve a comparable geographic area to U.S. West's tandem switches.  Bright (author), Reinhardt, and Silverman, Circuit Judges.  D. Waggoner of Seattle, WA, for the defendant-
appellant;  M. Thompson of Seattle, WA, for the plaintiff-appellee; C. Gregoire of Olympia, WA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  ENVIRONMENTAL LAW:  Nathan Kimmel, Inc. v. Dowelanco, 99-56746 (9th Cir. July 10, 2001).  State law claims for intentional interference with prospective economic advantage based on defendant's alleged purposeful submission of a false pesticide label application were not preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, as the claims did not impose requirements "in addition to or different from" those imposed by the Act.  Hug, Trott (author), and W. Fletcher, Circuit Judges.  J. Bennett of Pasadena, CA, for the appellants;  D. Barnhard of Indianapolis, Indiana, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  ENVIRONMENTAL LAW:  Environmental Protection Information Center v. The Simpson Timber Co., 99-15896 (9th Cir. July 9, 2001).  Where the U.S. Fish and Wildlife Service ("FWS") did not retained discretionary control over the defendant's incidental take permit that would inure to the benefit of the marbled murrelet or coho salmon, the FWS was not required to reinitiate consultation to consider the permit's effect on those species;  dissenting, Judge Nelson thought that the FWS had substantial discretionary control over the defendant's permit and two new species had been listed that might be harmed by the defendant's activities pursuant to the permit;  he thought the FWS could exercise its discretion to benefit those species which, until now, was sufficient to trigger its duty to consult;  he thought the majority had avoided this conclusion by creating a new requirement that the FWS explicitly reserve the right to implement measures to protect new species in the permit, a conclusion that contradicts the plain language of 50 CFR Sec. 402.16, misapplies the holding of Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir. 1995), and frustrates the purpose of the consultation requirement.  D.W. Nelson (dissenting), Thompson (author), and Trott, Circuit Judges.  N. Levine of Denver, CO, for the appellant;  A. Kemp of San Francisco, CA, and D. Shilton of Washington, DC, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  ENVIRONMENTAL LAW:  Defenders of Wildlife v. Norton, 99-56362 (9th Cir. July 31, 2001).  Under the Endangered Species Act a species (here, the flat-tailed horned lizard) can be considered extinct "throughout … a significant portion of its range" if there are major geographical areas in which it is no longer viable but once was;  those areas need not coincide with national or state political boundaries, although they can.  Trott, Thomas, and Berzon (author), Circuit Judges.  N. Levine of Denver, CO, for the plaintiffs-appellants;  R. Oakley of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  ENVIRONMENTAL LAW:  Brower v. Evans, 00-15968 (9th Cir. July 23, 2001).  The Sec. of Commerce must affirmatively find "whether or not" there is a significant adverse impact in accordance with the International Dolphin Conservation Program Act before dolphin safe labeling standards are relaxed.  Bright, Silverman (author), and W. Fletcher, Circuit Judges.  K. Hazard of Washington, DC, for the defendants-appellants;  J. Floum of Emeryville, CA, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  WATER RIGHTS:  USA v. Orr Water Ditch Company, 99-16812 (9th Cir. July 5, 2001).  A withdrawal of land from public entry for the benefit of the federal Newlands Reclamation Project in 1902 in Nevada did not initiate the appropriation of a water right subject to protection under the Nevada anti-forfeiture statute;  the USCA remanded the State Engineer's findings that none of the water rights in question had been abandoned as it appears that the Engineer may have misapplied Nevada's clear and convincing evidence standard in finding no abandonment, just as it appears to have done in finding no forfeiture;  Judge Noonan concurred with the major-ity's ruling on abandonment but thought its ruling on forfeiture misinterpreted USA v. Alpine Land & Reservoir Co., 983 F.2d 1487 (9th Cir. 1993), Nevada law, and what is at least implicit in Nevada v. USA, 463 US 110, 115-117.  Schroeder, Noonan (dissenting), and W. Fletcher (author), Circuit Judges.  K. Barton of Washington, DC, for the plaintiff-appellant;  R. Pelcyger of Louisville, CO, for the petitioner-appellant;  R. de Lipkau of Reno, NV, M. Van Zandt of San Francisco, CA, and D. Creekman of Carson City, NV, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  ADMIRALTY / STANDING:  Lite-On Peripherals, Inc. v. Burlington Aire  Express, 99-57003 (9th Cir. July 10, 2001).  A consignor of goods named in a bill of lading has standing to sue the carrier for misdelivery of goods and breach of contract where there is evidence that the consignee, and not the consignor, entered into the shipment contract with the carrier;  here the consignor of goods was a party to the contract evidenced by the bill of lading with full rights to enforce it.  Hug, Trott (author), and W. Fletcher, Circuit Judges.  K. Jeffries of Pasadena, CA, for the appellee;  M. Lodwick of Santa Ana, CA, for the appellant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  LABOR LAW:  Sonoda v. Cabrera, 00-15426 (9th Cir. July 3, 2001).  It was impermissible for the defendants to rely upon an executive order allowing termination without cause which was patently unconstitutional under precedent of the CNMI Supreme Court and had been expressly declared unconstitutional by a federal district court;  the defendants were not entitled to qualified immunity with respect to the plaintiff's due process claims.  B. Fletcher (author), Canby, and Paez, Circuit Judges.  T. Mitchell of Saipan, CNMI, for the plaintiff;  W. Betz of Saipan, CNMI, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  FALSE CLAIMS ACT:  Seal 1 v. Seal A, 98-56447 (9th Cir. July 5, 2001).  The term "investigation," as used in 31 USC Sec. 3730(e)(4)(A), encompasses any kind of government investigation;  the information upon which the appellant's False Claims Act com-plaint was based was obtained by him from investigations conducted by the government;  thus, that information was a "public disclosure" to him of "allegations or transactions" within the meaning of Sec. 3730(e)(4)(A), and the appellant was not an "original source" of that information within the meaning of Sec. 3730(e)(4)(B).  Pregerson, W. Fletcher (author), and Gould, Circuit Judges.  B. Leighton of Clovis, CA, for the plaintiffs;  M. Sherman of Los Angeles, CA, for the defendant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  TORTS / AVIATION:  Carey v. United Airlines, 00-35069 (9th Cir. July 3, 2001).  An airline passenger claiming personal in-jury arising out of an airline's intentional misconduct had to satisfy the conditions for carrier liability under the Warsaw Convention which provided the passenger's exclusive remedy;  the passenger's physical manifestations of his emotional and mental distress did not satisfy the "bodily injury" requirement of Article 17 of the Warsaw Convention.  T.G. Nelson (author), Graber, and Rawlinson, Circuit Judges.  G. Carey pro per;  D. Pickett of Portland, OR, the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  PRODUCTS LIABILITY / PREEMPTION:  Forrester v. American Dieselelectric, Inc., 99-35073 (9th Cir. July 10, 2001).  In a case where a locomotive crane operated by the plaintiff's employer dragged a metal beam over the plaintiff's leg, the federal Locomotive Inspection Act preempted the plaintiff's state law product liability claim against the locomotive crane's manufacturer based on the absence of an automatic audible warning device.  B. Fletcher and Fisher, Circuit Judges, and Schwarzer (author), District Judge.  J. Connelly of Tacoma, WA, for the plaintiff-appellant;  M. Hurt of Cleveland, OH, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  INSURANCE LAW:  AmHS Insurance Co., Risk Retention Group v. Mutual Insurance Co. of Arizona, 99-15703 (9th Cir. July 30, 2001).  An insurance policy will not be considered a true "excess" or "umbrella" policy if it is not expressly intended to attach only upon the exhaustion of all other available policies, does not charge premiums based on the existence of other available policies, and does not cover the same risk as the other available policies;  dissenting, Judge Graber disagreed with the majority's conclusion that the first and second layers of a policy issued by appellant Risk Retention Group (RRC) were co-primary with a policy issued by appellee Mutual Insurance Company of Arizona ("MICA");  she thought that MICA must contribute its share before the RRG policy becomes applicable.  Sneed (author), Graber (dissenting), and Paez, Circuit Judges.  D. White of Phoenix, AZ, for the appellant;  S. Guy of Phoenix, AZ, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  SOVEREIGN IMMUNITIES ACT:  EOTT Energy Operating Ltd. Partnership v. Winterthur Swiss Insurance Co., 00-35293 (9th Cir. July 20, 2001).  A company that is not directly owned by a foreign state, but is held through a holding company that is controlled by a foreign state, is not a "majority-owned" instrumentality of a foreign state under the Federal Sovereign Immunities Act ("FSIA");  the USCA remanded to the district court for further fact-finding and resolution of whether the company qualifies as an "organ" of Ireland so as to sustain FSIA jurisdiction on that ground.  B. Fletcher, Brunetti, and Fisher (author), Circuit Judges.  G. Trem-per of Great Falls, ID, for the plaintiff-appellee;  J. McAndrews of New York, NY, for the defendants-appellants.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  AMERICANS WITH DISABILITIES ACT:  Demshki v. Monteith, 00-15599 (9th Cir. July 2, 2001).  The Eleventh Amendment to the U.S. Constitution grants states immunity from suit in federal court by private individuals seeking money damages under Title V of the Americans with Disability Act at least where the claim is predicated on an alleged violation of Title I of the Act.  Noonan, Silverman (author), and Sedwick, Circuit Judges.  J. Adkisson of Sacramento, CA, for the defendant-appellant;  L. Esquina of Sacramento, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  SOCIAL SECURITY:  Aukland v. Massanari, 99-35943 (9th Cir. July 23, 2001).  In determining whether an individual shown to suffer from a non-exertional limitation is able to engage in any substantial gainful activity, an ALJ may not rely solely on Medical-Vocational grids but also must utilize a vocational expert .  B. Fletcher, Brunetti (author), and Fisher, Circuit Judges.  J. Laffoon of Olympia, WA, for the appellant;  V. Chhagan of Seattle, WA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  ADMINISTRATIVE LAW:  Anchustegui v. Dept. of Agriculture, 99-35755 (9th Cir. July 17, 2001).  A U.S. Forest Service procedure that can culminate in the cancellation of a grazing permit, but does not afford the permit-holder prior written notice and the opportunity to achieve regulatory compliance, violates the Administrative Procedures Act, 5 USC Sec. 558(b) and (c).  Wood (author), Trott, and Paez, Circuit Judges.  AUSA J. Rodriguez of Boise, ID, for the plaintiff;  D. Steenson of Boise, ID, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  ELECTION LAW:  Voting Integrity Project, Inc. v. Keisling, 99-35337 (9th Cir. July 11, 2001).  Oregon's election statute which allows voting by mail over an extended period prior to as well as on the federally prescribed election day does not violate the federal statute which requires that the election of U.S. Representatives and Senators and the electors of President and Vice President shall be held on a particular day—"the Tuesday next after the first Monday in November."  Aldisert, Kleinfeld (author), and W. Fletcher, Circuit Judges.  M. Baker of Washington, DC, for the appellant;  J. DiLorenzo of Portland, OR, for the appellant; H. Myers of Salem, OR, the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  JURISDICTION:  Green v. Tucson, 99-15625 (9th Cir. July 9, 2001).  While litigation concerning the constitutionality of a state statute was pending in state court, four individual plaintiffs filed this federal court challenge to the same statute, alleging similar constitutional defects to those alleged by the state court litigants;  the fact that the federal plaintiffs could intervene in the state court action did not implicate the federal court abstention doctrine.  Schroeder, Pregerson, Trott, Kleinfeld, Hawkins, Graber, Wardlaw, W. Fletcher, Fisher, Paez, and Berzon (author), Circuit Judges.  A. Ching of Tempe, AZ, for the plaintiffs-appellants;  D. McLaughlin of Tucson, AZ, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  SANCTIONS:  Gomez v. Vernon, 99-35930 (9th Cir. July 10, 2001).  A district court may sanction an attorney for the state under its inherent power and 28 USC Sec. 1927 when the attorney improperly acquires and uses privileged and confidential litigation materials belonging to inmate litigants;  concurring, Judge Gould thought sanctions properly could be affirmed under Sec. 1927 because the conduct of counsel for the state was so unjustified as to be in reckless disregard of the inmates' rights;  however, Judge Gould would stop short of holding that counsel for the state acted in bad faith.  McKeown (author), Wardlaw, and Gould (concurring), Circuit Judges.  T. Wilson of Boise, ID, for the defendants-appellants;  S. Pevar of Denver, CO, for the plaintiffs-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/)

28)  FIFTH AMENDMENT / STATE BAR MEMBERSHIP: Scheehle v. Justices of the Supreme Court of Arizona, 00-15457 (9th Cir. July 26, 2001).  A state regulatory scheme providing for the non-voluntary appointment of local attorneys as arbitrators in civil cases constitutes a reasonable condition for membership in the State Bar and was not an unconstitutional taking under the Fifth Amendment.  Pregerson, Ferguson, and Hawkins (author), Circuit Judges.  M. Scheehle pro se;  S. Bales of Phoenix, AZ, for the de-fendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  FIRST AMENDMENT:  LaVine v. Blaine School District, 00-35303 (9th Cir. July 20, 2001).  A student's temporary, emergency expulsion from high school for writing a violent poem, which when viewed together with the surrounding facts that led school authorities to reasonably believe that the student intended to inflict harm on himself or others, was reasonable and did not violate the First Amendment;  when school officials expelled the student they acted with sufficient justification and within constitutional limits, not to punish the student for the content of his poem, but to avert perceived potential harm.  B. Fletcher and Fisher (author), Circuit Judges, and Schwarzer, District Judge.  T. Merrick of Seattle, WA, for the defendants-appellants;  P. Buri of Bellingham, WA, for the plaintiffs-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  FIRST AMENDMENT:  Venetian Casino Resort v. Local Joint Executive Board of Las Vegas, 00-15136 (9th Cir. July 12, 2001).  A sidewalk constructed on private property to replace a public sidewalk constituted a public forum subject to the protections of the First Amendment;  dissenting, Judge Brunetti thought that a comprehensive analysis of all the facts leads to exactly the opposite conclusion the majority reached: namely, that the property owner was merely a private actor, acting on private land in barring union demonstrations on the sidewalk.  Schroeder, Hug (author), and Brunetti (dissenting), Circuit Judges.  W. Dellinger of Washington, DC, for the appellant;  M. Anderson of San Francisco, CA, for the appellees;  A. Lichtenstein of Las Vegas, NV, for the intervenor-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  FIRST AMENDMENT / ADULT BUSINESSES:  Isbell v. City of San Diego, 99-55591 (9th Cir. July 31, 2001).  A city that precludes the operation of an adult entertainment business based on a dispersal zoning ordinance and that fails to offer alternative sites that comply with the ordinance does not offer reasonable alternative avenues of communication under the First Amendment.  W. Canby (author), McKeown, and Paez, Circuit Judges.  J. Barriage of San Diego, CA, for the plaintiffs-appellants;  C. Lassman of San Diego, CA, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  RACIAL DISCRIMINATION / STANDING:  The Estate of Amos v. City of Page, Arizona, 99-16214 (9th Cir. July 26, 2001).  A white person who is the direct target of a city's discrimination against Native Americans based upon mistaken racial identity has standing to assert a racial discrimination claim under 42 USC Sec. 1983.  Wallace (author), Fisher, and Rawlinson, Circuit Judges.  J. McAlister for the plaintiff-appellant;  D. Lewis of Phoenix, AZ, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  FAIR HOUSING ACT:  Holley v. Crank, 99-56611 (9th Cir. July 31, 2001).  The owner and officers of a corporation, in this case of a real estate agency, can be vicariously liable for an employee's violation of the Federal Housing Act, even absent direct involvement or authorization of the employee's discriminatory conduct.  Hug (author) and B. Fletcher, Circuit Judges, and Illston, District Judge.  E. Brancart of Pescadero, CA, for the appellants;  D. Benedon of Woodland Hills, CA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  CIVIL RIGHTS / EXCESSIVE FORCE:  Sanford v. Motts, 00-56926 (9th Cir. July 31, 2001).  A plaintiff's civil rights claim based on a police officer's alleged use of excessive force in punching her during her arrest did not destroy the lawfulness of her arrest or invalidate her conviction;  if the officer had shot and wounded her instead of punching her while she stood handcuffed, there would be no doubt that she could sue him for violation of her civil rights;  if she could prove the punch was delivered after she was arrested, she has an equally strong case.  Noonan (author), Silverman, and Paez, Circuit Judges.  A. Axelrad of Los Angeles, CA, for the petitioners-appellants;  W. Odom of Compton, CA, for the defendants-appellees  (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  CIVIL RIGHTS:  Nichols v. Azteca Restaurant Enterprises, Inc., 99-35579 (9th Cir. July 16, 2001).  A man who is discriminated against for acting too feminine has an actionable claim under Title VII of the Civil Rights Act of 1964 and the state counterpart, the Washington Law Against Discrimination;  dissenting in part, Judge Wardlaw, unlike the majority, thought that the district court had correctly concluded that the employer had successfully established an affirmative defense to the plaintiff's claim of a hostile work envi-ronment based on vicarious liability for the acts of its managers under Faragher v. City of Boca Raton, 524 US 775 (1999).  Reinhardt, Wardlaw (dissenting in part), and Gould (author), Circuit Judges.  K. Barnard of Seattle, WA, for the plaintiffs-appellants;  R. Berry of Seattle, WA, for the defendant-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  NATIVE AMERICAN LAW:  Bird v. Glacier Electric Cooperative, 99-35162 (9th Cir. July 10, 2001).  A district court cannot give comity for purposes of recognition and enforcement to a tribal court judgment for compensatory and punitive damages where the closing argument in tribal court of the successful tribe-affiliated plaintiff included numerous statements encouraging ethnic and racial bias of an all tribal member jury against a corporate defendant owned and controlled by persons who were not tribal members;  the statements deprived the defendant of due process.  Reavley, O'Scannlain, and Gould (author), Circuit Judges.  J. Lynch of Great Falls, MT, for the plaintiffs-appellees;  P. Haffeman of Great Falls, MT, for the defendant-appellant.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  NATIVE AMERICAN LAW / CONTRACTS:  Demontiney v. USA, 99-35874 (9th Cir. July 16, 2001).  A private party cannot be a party to a "self-determination contract" ("an intergovernmental contract that is not a procurement contract") for purposes of in-voking the federal or tribal sovereign immunity waiver under the Indian Self-Determination and Education Assistance Act.  Pregerson, Thomas, and Gould (author), Circuit Judges.  R. Stephens of Billings, MT, for the plaintiff-appellee;  AUSA V. Francis of Billings, MT, and D. Belcourt of Box Elder, MT, for the defendants-appellants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  NATIVE AMERICAN LAW:  Table Bluff Reservation v. Morris, 00-15080 (9th Cir. July 16, 2001).  Indian tribes challenging a global settlement between states and tobacco companies, which included a prohibition against outdoor tobacco advertising on Indian lands, failed to allege injury in fact sufficient for Article III standing.  Boochever (author), O'Scannlain, and Tashima, Circuit Judges.  J. Russell of San Jose, CA, for the plaintiffs-appellees;  J. Phillips of Seattle, WA, for the defendants-appellants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  IMMIGRATION LAW:  Ma v. Ashcroft, 99-35976 (9th Cir. July 27, 2001).  On remand from the U.S. Supreme Court, the USCA held that the Attorney General is not permitted under 8 USC Sec. 1231(a)(6) to hold an alien for more than a reasonable period beyond the statutory removal period where the alien has already entered the United States and there is no reasonable likelihood that a foreign government will accept the alien's return in the reasonably foreseeable future;  following issuance of a final order of removal there is a "presumptively reasonable" period of six months during which the INS may continue to detain an alien it is seeking to remove.  Reinhardt (author), Thompson, and T.G. Nelson, Circuit Judges.  Q. Vu of Washington, DC, for the respondent-appellant;  FPD J. Stansell of Seattle, WA, for the petitioner-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  IMMIGRATION LAW:  Lai v. INS, 98-71087 (9th Cir. July 3, 2001).  An applicant for asylum who has suffered past persecution but cannot establish a well-founded fear of future persecution, is not required to show an ongoing physical or emotional disability resulting from the past abuse in seeking to invoke the humanitarian exception to the well-founded fear requirement;  dissenting, Judge O'Scannlain thought the majority had ignored the teaching of the Supreme Court by failing to defer to the BIA's permissible construction of its own asylum regulation;  in addition, he thought the majority had misconstrued the record in arriving at its conclusion that the BIA's decision to deny asylum was not supported by substantial evidence;  finally, he thought the majority had misapplied Circuit precedents in rejecting the State Department's opinion, and BIA's reliance on it, that circumstances in the petitioner's home country have changed.   B. Fletcher (author), O'Scannlain (dissenting), and Hawkins, Circuit Judges.  W. Gardner of San Francisco, CA, for the petitioners;  D. Ogden of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  IMMIGRATION LAW:  Lopez-Chavez v. INS, 99-70251 (9th Cir. July 26, 2001).  An authenticated INS Form WR-424, containing the alien's name, place of birth, and means of entry into the United States is admissible in a deportation hearing to prove alienage;  dissenting, Judge Pregerson thought the WR-424 in this case was untrustworthy and, even if it were trustworthy and therefore admissible, the INS should not be permitted to use a WR-424, standing alone, to meet its burden of proving alienage by clear and con-vincing evidence.  Pregerson (dissenting), Noonan, and Silverman (author), Circuit Judges.  G. Manulkin of Los Angeles, CA, for the petitioner;  C. Fuller of Washington, DC, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  IMMIGRATION LAW:  Chebchoub v. INS, 99-70564 (9th Cir. July 23, 2001).  The failure of an applicant for asylum or withholding of deportation to corroborate his inconsistent testimony with non-duplicative, material, and easily-available evidence, without giving a credible explanation for that failure, can provide the basis for an adverse credibility finding.  Schroeder, Wallace (author), and Tallman, Circuit Judges.  E. Shamieh of San Francisco, CA, for the petitioner;  R. LeFevre of San Francisco, CA, for the respondent.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  HARBORING & ACCESSORY LAW:  USA v. Hill, 00-30023 (9th Cir. July 27, 2001).  It is constitutional to prosecute a wife for harboring her fugitive husband and for being an accessory after the fact to his crime;  the federal proscription against harboring a fugitive confers jurisdiction even if the harboring occurs outside the United states;  an accessory after the fact indictment that fails to specify the principal's crime is legally insufficient as a matter of law.  T.G. Nelson (author), Graber, and Rawlinson. Circuit Judges.  E. Margolin of San Francisco, CA, for the defendant-appellant;  AUSA C. Cardani of Eugene, OR, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  PROSECUTORIAL MISCONDUCT / IMMUNITY:  Milstein v. Cooley, 99-56682 (9th Cir. July 20, 2001).  A prosecutor's actions in filing a false crime report, investigating a purported crime, and making statements to the media, are not protected by absolute immunity as they do not occur in the course of the prosecutor's role as an advocate for the state or otherwise possess any functional tie to the judicial process.  Hug (author) and B. Fletcher, Circuit Judges, and King. District Judge.  W. Ramey of Van Nuys, CA, for the appellant;  S. Renick of Los Angeles, CA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  ARREST WARRANTS:  Watts v. County of Sacramento, 00-15099 (9th Cir. July 16, 2001).  Police entry into a third party's residence to execute an arrest warrant for a murder suspect based on an anonymous tip must be supported by substantial evidence that the subject of the warrant is a co-resident of the third party and present at the time of entry;  here the tipster was never identified, and there was no evidence that the police made any effort to check directories and verify that the address given by the tipster, but not listed in the warrant, was in any way connected with the suspect; the mere fact that the plaintiff answered the door of his girlfriend's home in his boxer shorts did not establish a reasonable belief that he lived there.  Goodwin (author), Graber, and McKeown, Circuit Judges.  D. Parker of Seattle, WA, for the plaintiffs-appellants;  J. Duggan of Sacramento, CA, for the defendants-appellees.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  JUVENILE CRIME:  Juvenile Male v. CNMI, 00-10380 (9th Cir. July 9, 2001).  In determining that a juvenile proceeding should be transferred to adult court, the transfer judge's orally stated reasons showing that he had properly considered the testimony, the nature of the crime, the minor's age, and had made its own observations regarding the minor's maturity, complied with the "adequate statement" element of the juvenile transfer proceeding's due process requirements.  B. Fletcher (author), Canby, and Paez, Circuit Judges.  G. Long of Saipan, CNMI, for the appellant;  B. Hirshbein of Saipan, CNMI, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  SPEEDY TRIAL:  USA v. Carrasco, 00-10224 (9th Cir. July 23, 2001).  Where the government indicted the defendant within 30 days on the charge contained in the complaint, the original indictment tolled the 30-day time period;  the superseding indictment, which was issued while the original indictment was pending and which reasserted the same charge, thus was timely.  Schroeder, Lay, and Boochever (author), Circuit Judges.  G. Boisseau of Santa Rosa, CA, for the defendant-appellant;  AUSA H. Gilliam of San Fran-cisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  APPELLATE REVIEW / INFORMANTS:  USA v. Abonce-Barrera, 99-10282 (9th Cir. July 20, 2001).  A criminal defendant is not required to file objections in the district court to preserve appellate review of a magistrate judge's prior rulings on nondispositive matters;  the magistrate judge did not abuse his discretion in withholding the identity of the informant before trial, and did not abuse his discretion in failing to require the production of a list of all the cases on which the informant worked.  Wallace (author), Fisher, and Rawlinson, Circuit Judges.  L. Gray of San Francisco, CA, for the plaintiff-appellee;  D. Herns of San Jose, CA, for the defendant-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  SEARCH & SEIZURE:  USA v. Johnson, 99-30012 (9th Cir. July 20, 2001).  A majority of the en banc court (Judge Ferguson, joined by Judges Schroeder, Pregerson, Tashima, Paez, and Berzon) concluded that the police in this case did not have probably cause to enter the defendant's property, and were not in hot pursuit when they searched an area outside a shed;  that same majority concluded that whether the search took place within the curtilage was a question to be determined in the first instance by the district court;  a different majority (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman, Gould, and Paez) concluded that under Ornelas v. USA, 517 US 690 (1996), the determination of the curtilage must be reviewed de novo on appeal;  of these judges, five (Judge Kozinski, joined by Judges Trott, T.G. Nelson, Silverman, and Gould) concluded that the search took place outside the curtilage;  on the probably cause issue, the USCA reversed the district court;  on the curtilage issue, the USCA remanded to the district court for a determination of whether the search lay within the curtilage and any other issue necessary to the disposition of this case;  Judge Tashima wrote separately to state that he concurred in all of Judge Ferguson's opinion, except for Parts III.a, b, c, and d, which he regarded as dicta, and also to correct "the mistaken assertion" that Part III.A of Judge Kozinski's opinion represents a "holding" of the Court;  Judge Gould wrote separately to state that he concurred in Parts I, II, IIIA, IV, and V of Judge Kozinski's opinion, and joined the holding that Ornelas requires the USCA to review de novo a district court's curtilage decision, and that the USCA's earlier inconsistent cases are overruled;  Judge Paez wrote separately to state that he concurred in all of Judge Ferguson's opinion except for his conclusion in Part III.A that the USCA should not resolve the standard of review for curtilage determinations at this time;  he also concurred in Part III.A of Judge Kozinski's opinion because he agreed that the appropriate standard of review for curtilage determinations is de novo in light of Ornelas;  however, the district court had not made a curtilage determination;  even under a de novo standard, it is ap-propriate for the district court to rule on the issue in the first instance;  the USCA can then, Judge Paez thought, review the district court's determination unencumbered by speculation as to what the district court intended by its failure to explicitly address the issue or whether the record was complete;  Judge Paez thus agreed with Judge Ferguson that the USCA should remand to the district court for a determination of curtilage.  Schroeder, Pregerson, Ferguson, Kozinski, Trott, T.G. Nelson, Tashima (concurring), Silverman, Gould (concurring), Paez (concurring), and Berzon, Circuit Judges.  Per Curiam. AFPD M. Filipovic of Seattle, WA, for the appellant;  AUSA B. Miyake of Seattle, WA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  SEARCH & SEIZURE:  USA v. Rousseau, 00-30214 (9th Cir. July 3, 2001).  Detaining a suspect at gun point while performing an investigatory search did not convert the stop into an arrest where the lone officer observed the red sedan reportedly occupied by the armed intruder being sought and the individual in the driver's seat matched the description of the person reportedly in possession of a firearm;  officer subsequently had probable cause to arrest the suspect once they observed a stiletto on the floorboard of his vehicle; inasmuch as a stiletto is illegal under the relevant state law, the police properly arrested the suspect and their subsequent search which led to the seizure of the revolver was valid as incident to his arrest.  Goodwin, Greenberg (author), and Rawlinson (concurring), Circuit Judges.  AFPD M. Weintraub of Eugene, OR, for the defendant-appellant;  AUSA S. Hoar of Eugene, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  EVIDENCE:  USA v. Murillo, 00-10042 (9th Cir. July 6, 2001).  Expert testimony of the modus operandi of couriers involved in drug trafficking organizations was not inadmissible in this case;  the expert did not extrapolate the various roles individuals might play in hypothetical drug trafficking organizations, and he did not imply that the defendant participated in a large-scale operation;  rather, the expert testimony went to the heart of the defendant's defense that he was simply an unknowing courier.  Schroeder, Wallace, and Tallman (author), Circuit Judge.  AUSA C. Sonderby of Sacramento, CA, for the plaintiff-appellee;  AFPD J. Balazs of Sacramento, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  MOTION TO REMIT BOND FORFEITURE:  USA v. Sar-Avi, 00-10077 (9th Cir. July 5, 2001).  A defendant's plea agreement waiver of his right to appeal his conviction and sentence did not preclude him from moving to remit bond forfeiture pursuant to Federal Rule Criminal Procedure 46(e)(4), or from appealing the district court's denial of that motion;  although the government could have asked the defendant to waive his right to file a Rule 46(e) motion in his plea agreement, it did not;  his civil motion to remit is not an appeal.  O'Scannlain, Tashima, and Thomas (author), Circuit Judge.  B. Glicker of Encino, CA, for the appellant;  AUSA B. Sullivan of Reno, NV, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  MOTION TO WITHDRAW PLEA:  USA v. Ruiz, 99-10224 (9th Cir. July 23, 2001).  Sitting en banc to resolve a discrepancy between the Circuit's existing case law and the current version of Federal Rule Criminal. Procedure 32(e), the USCA held that, consistent with Rule 32(e), the "fair and just reason" standard applies to any motion for plea withdrawal that is made prior to the defendant's sentencing.  Schroeder, Pregerson, Kozinski, O'Scannlain, Trott, Fernandez, Kleinfeld, Hawkins (author), Tashima, W. Fletcher, and Fisher, Circuit Judges.  J. Garland of Fresno, CA, for the defendant-appellant;  AUSA K. Rooney of Fresno, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  SENTENCING:  USA v. Rodriguez-Cruz, 00-50351 (9th Cir. July 3, 2001).  Sentencing enhancements for (1) recklessly creating a substantial risk of death or serious bodily injury while smuggling illegal aliens and (2) the death from hypothermia of an alien that resulted, were properly imposed upon defendants who were aware of the potential dangerous conditions of a smuggling trip but proceed despite the immigrants' obvious lack of adequate food, water, clothing, and protection from the elements.  Hug (author), Duhe, and Tallman, Circuit Judges.  K. Johnson of San Diego, CA, for the appellants;  AUSA J. Parmley of San Diego, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  SENTENCING:  USA v. Barrios-Gutierrez, 99-10148 (9th Cir. July 3, 2001). Sitting en banc, the USCA held that a trial judge is not required to formally determine at the plea colloquy whether a statutorily-authorized sentence enhancement will apply as a matter of law, notwithstanding the defendant's acknowledgment in open court that he understands the minimum possible penalty including such potential enhanced sentence;  as the court informed the defendant that he might face 20 years in prison and then correctly resolved the applicability of the enhancement at sentencing, the USCA affirmed the 57-month sentence actually imposed;  dissenting, Judge Berzon, joined by Judges Pregerson and Reinhardt, thought that under Fed. R. Crim. P. 11 a defendant is entitled to an essential piece of information regarding the consequences of his guilty plea—"the maximum possible penalty provided by law."  Thus, while they agreed that at every plea hearing, there is great deal of uncertainty, they did not think that uncertainty could include whether 20 years was or was not the "maximum possible penalty provided by law" for a 8 USC Sec. 1326(a) violation.  Schroeder, Hug, Pregerson, Reinhardt, O'Scannlain (author), T.G. Nelson, Tashima, Graber, Gould, Berzon (dissenting), and Rawlinson, Circuit Judges.  A. Baggot of Apache Junction, AZ, for the defendant;  M. Rotker of Washington, DC, for the plaintiff.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  SENTENCING:  USA v. Najjor, 98-50748 (9th Cir. July 2, 2001).  In sentencing a defendant convicted of fraud, the district court must consider all the evidence pertaining to a restitution order and make an independent determination of the actual loss the victim suffered; it should not accept uncritically the amount recommended by the probation office.  Goodwin, Hug (author), and Pregerson, Circuit Judges.  T. Kolkey of San Marcos, CA, for the appellants;  P. Frandsen of San Diego, CA, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  SENTENCING:  USA v. Walter, 00-10384 (9th Cir. July 18, 2001).  The combination of the defendant's brutal beatings by his father, his introduction to drugs and alcohol by his mother, and his sexual abuse by his cousin are the kinds of "extraordinary" circum-stances that may justify the consideration of the psychological effects of childhood abuse and thus warrant a downward departure in sentencing.  Schroeder, Lay (author), and Boochever, Circuit Judges.  AFPD S. Halbert of San Francisco, CA, for the defendant-appellant;  AUSA M. Wang of San Francisco, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  SENTENCING:  USA v. Jordan, 97-10255 (9th Cir. July 5, 2001).  A district court commits plain error at sentencing by making factual findings underlying sentence enhancements with impact disproportionate to the conviction where those findings are not supported by "clear and convincing" evidence;  Judge O'Scannlain concurred in the result but reluctantly concluded that under the Circuit's recent precedents it should be plain error not to apply the "clear and convincing" standard of proof to the sentence enhancements in this case.  B. Fletcher, O'Scannlain (concurring), and Gould (author), Circuit Judges.  P. Milrod of Fresno, CA, for the defendant-appellant;  D. Rice of Sacramento, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

59)  SENTENCING:  USA v. Jimenez, 00-10343 (9th Cir. July 31, 2001).  Reviewing the defendant's sentence for plain error, the USCA held that the defendant had not been prejudiced by a district court's erroneous reliance on a pre-sentence report that recommended a sentencing enhancement based on the defendant's prior conviction but which failed to cite the statute of conviction;  the accuracy of the pre-sentence report was unchallenged.  Sneed and Silverman, Circuit Judges, and Lasnik (author), District Judge.  AFPD R. Valladares of Las Vegas, NV, for the defendant-appellant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

60)  SENTENCING:  USA v. Hayden, 00-16042 (9th Cir. July 25, 2001).  Because a conviction "set aside" pursuant to California Penal Code Sec. 1203.4 is not "expunged" under U.S. Sentencing Guidelines Sec. 4A1.2(j), Municipal Court orders setting aside the defendant's state convictions did not entitle him to a recalculated criminal history score or a recomputed federal sentence.  O'Scannlain (author) and W. Fletcher, Circuit Judges, and Kelleher, District Judge.  K. Noel of San Francisco, CA, for the defendant-appellant;  AUSA J. Kennedy of San Francisco, CA, for the plaintiff-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

61)  SENTENCING:  USA v. Trapp, 00-10231 (9th Cir. July 23, 2001).  The government was not obligated to recommend, pursuant to a plea agreement with the defendant, a sentence of home confinement pursuant to Guidelines Sec. 5B1.1(a)(2) where the agreement was contingent upon eligibility under the sentencing guidelines and the defendant had been found ineligible for home confinement.  Schroeder, Wallace (author), and Tallman, Circuit Judges.  D. Albregts of Las Vegas, NV, for the defendant-appellant;  AUSA J.G. Damm of Las Vegas, NV, for the appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

62)  HABEAS CORPUS:  In re Ernie Roe, Warden, 01-70967 (9th Cir. July 24, 2001).  The district court erred in releasing on bail during the pendency of his habeas proceedings a California state prisoner who had been order incarcerated for life in prison without the possibility of parole following his conviction on two counts of first degree murder and one count of attempted murder;  the district court had cited "the gravity of the allegations of the petition, the record developed thus far, petitioner's failing health and the dilatory pace of these proceedings.;  The district court's release order raised an issue of first impression for the Ninth Circuit:  namely, whether a district court has the authority to grant bail pending a decision on a 28 USC Sec. 2254 habeas corpus petition.  O'Scannlain, Silverman, and Gould, Circuit Judges.  Per Curiam.  G. Ott of San Francisco, CA, for the petitioner;  M. G. Schwartzbach of Mill Valley, CA, for the real-party-in-interest.   (Download the full text of this decision at www.ce9.uscourts.gov/) 

63)  HABEAS CORPUS:  Cooper v. Calderon, 97-99030 (9th Cir. Filed July 9, 2001).  A habeas petitioner failed to demonstrate the prejudice requisite to establishing ineffective assistance in his counsel's decision to forego lesser-included offense instructions where it was not reasonably probable that the jury would have returned a verdict finding the defendant guilty of a lesser charge;  dissenting, Judge Browning agreed with Judge Gould that the petitioner adequately raised a claim of constitutional error under Beck v. Alabama, 447 US 625 (1980);  he also thought that the Beck error may have had a substantial and injurious effect in determining the jury's ver-dict within the meaning of Brecht v. Abrahamson, 507 US 619 (1993), and that the petitioner should be granted relief;  concurring, Judge Could thought that the petitioner adequately raised the Beck due process claim, but did not establish prejudice.  Browning (dissenting), Rymer (author), and Gould (concurring), Circuit Judges.  R. Amidon of Studio City, for the petitioner-appellant;  F. Millar of San Diego, CA, for the respondent-appellee.   (Download the full text of this decision at www.ce9.uscourts.gov/)

 1)  BUSINESS LAW / BUYOUTS: Hunsaker v. Hurwitz, 99-15883 (9th Cir. July 9, 2001) (unpublished). Goodwin, Hug, and W. Fletcher, Circuit Judges.
         Pacific Lumber Corporation, a Maine corporation, was targeted for a leveraged buyout by Charles Hurwitz, Maxxam, Inc., and related entities in 1985.  The plaintiffs maintain that the purchasers used an illegal "stock parking" scheme to prevent Pacific Lumber Maine's Board of Directors ("the Board") from fighting the buyout attempt, and to avoid anti-takeover provisions in the company's Articles of Incorporation.  The Board rejected an initial tender offer and adopted amendments to the company retirement plan requiring the pension plan surplus to vest immediately in its employees and retirees in the event of an "unapproved change in control."  But soon thereafter, the Board agreed to a merger when the purchasers offered a higher price per share.  Plaintiffs alleged that the Board's consent was invalid because of the purchasers' illegal tactics, and because of a conflict of interest on the part of one of the Board's financial advisors.  Plaintiffs contend that under the pre-takeover amendments to the pension plan, they are entitled to recover the pension plan surplus, a sum of $60 million.
        Approximately one year after the takeover, several individuals filed a class action on behalf of Pacific Lumber shareholders in California state court, in an action know as Thompson v. Elam.  The named Thompson plaintiffs, none of whom were named plaintiffs in the instant case, named among their defendants Charles Hurwitz, Maxxam Group, Inc., MXM Corp., and Federated Development Company ("the Maxxam defendants"), and Pacific Lumber Maine.  In their second and third amended complaints, the Thompson plaintiffs included the pension claims that the Hunsaker plaintiffs now assert in the instant action.  Shortly after the third amended complaint was filed, both plaintiffs and defendants in Thompson asked the state court to stay the action pending the resolution of related litigation in In re Ivan F. Boesky Securities Litigation.  They entered into successive stipulations agreeing to stay the action, and the stay period lasted over seven years, until March 18, 1997.  When the state court first granted the stay, several of the Thompson defendants had not yet been served with process.  All three stay stipulations contained language that preserved the rights of these defendants.  The stipulations provided, for example, that they did not "diminish, enhance, or otherwise affect in any way any rights or defenses which any … defendants may have against any plaintiffs," that the execution of the stipulation did "not constitute an appearance or waiver of any defects of service," and that although "the five year statute set forth in Sec. 588.310," [the USCA noted that the parties may have intended to refer to Cal. Code Civ. Proc. Sec. 583.310], would be tolled during the period specified in the stipulation, tolling would only have effect for "those defendants who have been properly and timely served."  Plaintiffs in this case concede that the Maxxam defendants were not served during the Thompson litigation.  The state court lifted its stay in 1997.  It dismissed without prejudice the claims against Hurwitz, Pacific Lumber Company, Maxxam Group, Inc., and MXM Corp. on May 5, 1998 because the Thompson plaintiffs had not served them with process within the time required by California law.  At the time it dismissed these defendants, the state court had not formally certified the plaintiff class.  Six months later, plaintiffs in this case filed their class action complaint in federal district court.  They named five defendants:  Charles Hurwitz, Pacific Lumber Delaware, Maxxam Group, Inc., MXM Corp., and Federated Development Company.  With the exception of Federated Development Company, each of these defendants had been dismissed from the Thompson class action by the state court's May 5, 1998 order.  The Thompson plaintiffs had dropped Federated from their lawsuit after filing their first amended complaint.  The named Hunsaker plaintiffs had not been named plaintiffs in Thompson, but claimed that they had been putative class members in that case.  They pled four causes of action, three under state law and one under federal law.  Although they conceded that statutes of limitations for all of these claims had expired, the Hunsaker plaintiffs maintained that the stay issued in Thompson tolled the statutes of limitations on their claims, or, alternatively, that the pendency of Thompson tolled those statutes under the rule of American Pipe and Construction Co. v. Utah, 414 US 538 (1974).  The District Court for the Northern District of California, Judge Wilken presiding, disagreed.  It held that under the terms of the stipulation in Thompson, the statute of limitations was not tolled with respect to the Maxxam defendants as they had never been served.  The District Court then held that the equitable tolling doctrine set out in American Pipe was inapplicable because of the failure of the named Thompson plaintiffs to serve the Maxxam defendants.  Finally, it dismissed plaintiffs' claims against the Maxxam defendants with prejudice.
        The USCA affirmed.  Dismissal under Rule 12(b)(6) for failure to state a claim is appropriate if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitled him to relief.  Plaintiffs maintained that the District Court erred in refusing to apply American Pipe to toll the applicable statutes of limitations.  American Pipe allowed unnamed members of a class to intervene as individual plaintiffs in a class action after the court had refused class certification even though the statutes of limitations on the intervening plaintiffs' claims had expired during the pendency of the class action.  It held that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.  American Pipe was extended in Crown, Cork & Seal Co. v. Parker, 462 US 345 (1983), where it held that American Pipe applies not only to parties who sought to intervene after denial of class certification, but also to parties who sought to file an entirely new action.  The Ninth Circuit has further extended American Pipe to cover certain situations where plaintiffs seek to bring a new class action rather than a new individual action.  Catholic Social Services, Inc.  v. Reno, 232 F.3d 1139 (9th Cir. 2000) (en banc). The appellants in the instant case maintained that even though the Thompson plaintiffs never served the defendants in this case, the statutes of limitations on the causes of actions asserted by the Thompson plaintiffs are tolled under American Pipe for plaintiffs in this case.  The USCA disagreed.         
American Pipe and Crown, Cork & Seal dealt with situations in which unnamed class members sought to litigate their own claims after a court refused to certify a class in an action instituted on their behalf.  Catholic Social Services dealt with a situation in which intervening legislation required the class to amend its complaint.  These cases did not allow unnamed class members to escape the consequences of the failure of class representatives to serve process in the initial action.  None even suggest that if a defendant in a class action is never served with process, the statutes of limitations on claims against that defendant are tolled for all unnamed class members during the pendency of the action against defendants who have been served.  The failure of the Thompson plaintiffs to serve the defendants in this case prevents the statute of limitations on plaintiffs' claims from being tolled under American Pipe.  A plaintiff cannot rely on the doctrine of American Pipe to "piggyback one class action onto another" in order "to correct a procedural deficiency in an earlier would-be class."  Catholic Social Services, 232 F.3d at 1149.  The USCA thus affirmed the decision of the district court.

2)  ENVIRONMENTAL LAW / ATTORNEYS' FEES: Environmental Protection Information Center, Inc. v. Pacific Lumber Co., 99-16042 (9th Cir. July 24, 2001) (unpublished).  Wallace, Fisher, and Rawlinson, Circuit Judges.
        The District Court for the Northern District of California, Judge Patel presiding, ordered attorneys' fees paid to the Environmental Protection Information Center ("EPIC"). The Pacific Lumber Company appeals.
         The USCA reversed and remanded.  In awarding EPIC attorneys' fees the district court relied on its finding that EPIC's efforts resulted in court orders that established the application of Sec. 7(d) of the Endangered Species Act ("ISA") to private incidental take permit ("ITP") applications, as well as clarification that Sec. 7 applied to ITP applications under ISA Sec. 10.  It also stated that the issues of interpreting and applying Sec. 7(d) and 7(d)'s interactions with Sec. 10 were novel, important and complex and the efforts of plaintiffs assisted in interpreting the ISA.  However, the USCA noted that it had directed the district court to vacate its order of March 15, 1999 because it was entered without jurisdiction.  That order addressed (1) whether the Sec. 7 consultation requirements apply to ITP applications under Sec. 10(a) and, if so, whether the requisite consultation has been initiated to trigger the Sec. 7(d) prohibitions; and (2) whether the plaintiffs made a sufficient showing that Pacific Lumber Company's timber harvesting constituted an irreversible or irretrievable commitment of resources in violation of Sec. 7(d).  The USCA had also directed the district court to vacate portions of its order dated May 5, 1999, in which the district court engaged in an extensive discussion of the interaction between Secs. 7 and 10.  Thus, the district court could not sustain an attorneys' fees award by relying on either the March 15 order or its further analysis of the ISA contained in the May 5 order.  The USCA directed the district court to reconsider the attorneys' fees issue without reliance on the March 15 order or that part of the May 5 order it directed be vacated.

3)  ENVIRONMENTAL LAW: California v. Aerojet General Corp. 00-16497 (9th Cir. July 6, 2001) (unpublished).  Schroeder, D. Nelson, and Rawlinson, Circuit Judges.
        The State of California and Aerojet entered into a partial consent decree governing the investigation and clean-up of environmental conditions at the Aerojet plant near Sacramento in 1986.  In 1999, a private purveyor, American States Water Company ("ASWC"), brought a separate suit in state court against California alleging damage to its ground water sources.  California filed a cross complaint against Aerojet seeking indemnity for any liability arising out of the separate action.  Aerojet filed a claim for injunctive relief in the District Court for the Eastern District of California seeking to prohibit California from pursuing its cross complaint, based on two provisions in the partial consent decree.  District Judge Garcia granted Aerojet's motion, declaring that the two provisions forbade California from suing Aerojet.
        The USCA affirmed.  Aerojet maintained that two provisions of the partial consent decree—Paragraph 22 (the Covenant Not To Sue) and Paragraph 30 (the Disclaimer of Third Party Liability)—forbid California from seeking indemnity or contribution against Aerojet via a cross complaint in a state court proceeding.  California argued that "liability for" does not equate to "liability arising out of."  It also maintained that the covenant not to sue extended only to protecting Aerojet from California taking action outside the decree to accomplish obligations Aerojet assumed under the Decree.  Aerojet argued that this paragraph prohibited California from pursuing any judicial action against Aerojet for covered matters which are defined as any and all Aerojet civil liability to the State for operations of the groundwater extraction and treatment facility ("GET facilities").  California offered parole evidence to support its interpretation of Paragraph 22.  Because the partial consent decree was entered in California, the USCA construed the agreement in accordance with California's rules of contract interpretation.  Under California law "the test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the contract is reasonably susceptible.  Thus, courts must consider extrinsic evidence to determine whether the contract is ambiguous even if the contract appears on its face.  If the extrinsic evidence advances an interpretation to which the language of the contract is not reasonably susceptible, however, the evidence is not admissible.  The State's proffered parole evidence does not advance a "reasonably susceptible" interpretation of the consent decree.  Just as suing for damages arising out of a breach of contract is suing for liability for breach of contract, so is suing for indemnity or contribution for damages arising out of the "interception, extraction, and treatment of plumes of chemicals" the same as suing for liability for the "interception, extraction, and treatment of plumes of chemicals."  The district court thus was correct in excluding the parole evidence offered by California.
       Paragraph 30, the Disclaimer of Third Party Liability, states that "no party shall be liable for any injuries or damages to persons or property resulting from acts or omissions of any other party in carrying out activities pursuant to this Decree."  Both parties agree that this clause was intended to ensure that each party would bear its own liability for its own acts and omissions.  Each party also claims that Paragraph 30 supports its respective position.  The USCA noted that it must look to the nature of ASWC's complaints to determine the applicability of Paragraph 30.  ASWC sued both the State and Aerojet for their respective roles in the damage to ASWC's water supply.  It sued Aerojet for pollution that allegedly occurred during Aerojet's cleanup efforts, and California for allowing Aerojet to pollute and negligently overseeing Aerojet's cleanup efforts.  If California is held liable for the complaint's assertions, it will be held liable for its own actions, and not those of Aerojet.  To be sure, Aerojet may be the entity primarily responsible for the ground water contamination (hence California's indemnity and contribution claims).  California, nonetheless, was required to fulfill its duty under the consent decree to oversee the GET facility operations.  Paragraph 30 contemplates that California, and not Aerojet, will be held liable for its own "negligent supervision" of Aerojet's operations.  California also argued that it should be allowed to pursue its cross complaint against Aerojet because "the covenant at issue makes no colorable promise not to sue for the original ground water contamination."  However, ASWC does not seek relief from California for the "original contamination" of the groundwater or for any acts or omissions of Aerojet.  Its complaint is unmistakably based on California's approval and oversight of the design, construction, and operation of the groundwater extraction and treatment facilities.  For this reason, California's cross complaint violates Paragraph 30, and the district court did not err in this regard.

4)  INSURANCE: Cass v. Allstate Insurance Co., 99-17479 (9th Cir. July 2, 2001) (unpublished).  Beezer, O'Scannlain, and W. Fletcher, Circuit Judges. (The memorandum filed May 17, 2001 has been withdrawn.)
        Cass, a former employee of Allstate Insurance Company, appealed a summary judgment entered by the District Court for Nevada, Judge Pro presiding, in favor of Allstate on Cass's age discrimination, racial discrimination and constructive discharge claims.  With regard to Cass's claims that he was transferred on account of his age and race in violation of federal law, the District Court noted that Allstate had articulated two separate reasons for transferring Cass:  (1) his alleged communication difficulties; and (2) the Investigation Unit's need for an experienced investigator.  These were two fundamentally different reasons.  While it may be that both reasons for the transfer are true, it may also be that the proffered reasons are pretextual, "for one who tells the truth need not recite different versions of the supposedly same events."  Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997).  On the record, Cass produced adequate evidence to allow a reasonable factfinder to conclude that Allstate's proffered reasons were false.  Allstate initially blamed Cass for making his transfer necessary due to his purported shortcomings in communicating with new employees.  A reasonable jury could find it inconsistent that, according to Allstate, it transferred Cass to a position involving intensive training and supervision of a new and overwhelmed employee in part because of his difficulty communicating with new employees.  That determination is not appropriate at the summary judgment stage.  As for Cass's claims that he was constructively discharged in violation of federal and state law, the USCA concluded that the District Court correctly concluded that his mere transfer could not constitute intolerable working conditions.

5)  INSURANCE: Continental Insurance Co.  v. N.A.D., Inc., 00-15294 (9th Cir. July 30, 2001) (unpublished).  Pregerson, Ferguson, and Hawkins, Circuit Judges. 
         Following an accident during a routine operation at Southern Nevada Surgical Center ("SNSC"), a state lawsuit was initiated and, after approximately two years, a settlement reached.  Continental Insurance Company, Continental Assurance Company, and Continental Casualty Company (collective "CNA") paid $14 million of the settlement on behalf of SNSC, and then filed a claim for indemnity and contribution against the manufacturers of some of the operating room equipment.  The defendants maintained that CNA was the real-party-in-interest, a claim they took to the Nevada Supreme Court, the resolution of which took approximately three years.  CNA meanwhile filed a protective action in state court preserving its rights.  The defendants removed the protective action to the U.S. District Court where Judge Hagen stayed the case pending resolution of the state proceeding.  Shortly after the Nevada Supreme Court ruled that SNSC was the proper party to be pursuing the suit, the defendants moved to dismiss the state action based on Local Rule 41(e), which provides that no action may be pending in state court for more than five years without proceeding to trial.  Because the claim for indemnity and contribution had been filed within the original malpractice lawsuit, the five-year period had expired.  The state was then dismissed without prejudice.  At the same time the defendants moved to have the federal case dismissed because CNA had failed to timely substitute SNSC as the real-party-in-interest.  The District Court granted the dismissal for failure to timely substitute by the real-party-in-interest pursuant to Federal Rule of Civil Procedure 17(a).
        The USCA reversed.  Rule 17(a) provides that no action shall be dismissed on the ground that it is not prosecuted in the name of the real-party-in-interest until a reasonable time has been allowed for substitution after objection.  The District Court held that the objection in this case was the Nevada Supreme Court's April 26, 1999 decision that SNSC was the proper party-in-interest rather than the defendants' June 22, 1999 motion to dismiss for failure to timely substitute.  That, the USCA said, was incorrect.  A motion, either by the parties or by the court, must be made in order to notify the disputed party of the error.  An objection is meant to provide notice to the parties that a defect must be correct.  The resolution of an issue in another court did not suffice as notice or objection for the purpose of Rule 17(a).  The advisory notes to Rule 17(a) make clear that equitable principles should apply to a district court's decision.  The District Court erred in failing to consider the prejudice to the parties or the court's interest in litigating suits on their merits.  There is no indication that the defendants were prejudiced by the delay in substituting SNSC as the real-party-in-interest.  CNA made the motion on August 13, 1999, less than two months after the defendants' motion to dismiss served as an objection.  This was not an unreasonable delay.  According to the state court, thousands of hours and millions of dollars have already been spent on this case.  There is a strong policy in favor of allowing a case to be heard on its merits.  The District Court found that CNA was "forum shopping" and acting in bad faith.  The Ninth Circuit has never held that the filing of a protective action constitutes bad faith, even where the protec-tive action is eventually litigated.  The USCA note that CNA repeatedly attempted to have its federal case remanded and consolidated with the state case.  The District Court abused its discretion in labeling CNA's conduct "forum shopping" in this context.  It correctly observed that Rule 17(a) seeks to prevent forfeiture where determination of the right party to sue is difficult or when an understandable mistake has been made.  However, it erred in using Rule 17(a) to determine that it did not have to allow a reasonable time to substitute.  The three-year litigation over the proper party-in-interest in state court demonstrated that the determination of the right party to sue was difficult.  Rule 17(a) speaks to parties who file claims knowing that they are not the proper parties to the suit, not to parties who discover in the midst of the litigation that they are not proper parties.  The USCA found no merit in the alternative grounds for affirming proposed by the defendants.  CNA was not attempting to split a cause of action, and the principles articulated in Wulff v. CMA Inc., 890 F.2d 1070 (9th Cir. 1989), were not applicable.  The USCA concluded that given the circumstances and equities of the case a delay of less than two months in moving to substitute was not unreasonable.  The District Court thus erred in dismissing this case. The USCA reversed and remanded to allow the substitution of the proper party-in-interest.

6)  DISABILITY INSURANCE: Dominguez v. Mutual Life Insurance Co. of New York, 00-15440 (9th Cir. July 2, 2001) (unpub-lished).  Schroeder, Lay, and Thompson, Circuit Judges.
         Dominguez was diagnosed as suffering from several foot ailments in 1986.  He applied for a disability insurance plan from Mutual Life Insurance Company of New York ("MONY") in 1994.  Although the application form required him to reveal his past foot injury, he did not do so, and MONY issued him a policy.  As required by California law, the policy included an incontestability clause providing that if disability is incurred two years after the policy's effective date, the insurer cannot deny or reduce benefits on the ground that the disease or physical condition existed prior to the policy date.  In June 1996, Dominguez underwent surgery on his foot and submitted a claim to MONY, asserting he was unable to work because of pain in his foot.  He eventually had to sue for coverage alleging contract claims and negligent and intentional infliction of emotional distress.  MONY defended by arguing that Dominguez's policy was ineffective due to misstatements on his policy application.  The District Court for the Eastern District of California, Judge Burrell presiding, agreed.  It found that California's incontestability clause did not apply because Dominguez's injury manifested itself (rather than merely existed) before the policy's effective date.  Subsequently, the California Supreme Court decided the very legal issue involved in this appeal.  Galanty v. Paul Revere Life Insurance Company, 1 P.3d 658 (Cal. 2000), held that an incontestability clause applies despite the fact that the injury manifests itself before the policy was issued.
       The USCA affirmed in part and reversed and remanded in part.  MONY admitted that Galanty controlled and that the District Court's summary judgment in its favor thus had to be reversed.  The dismissed contract claims included breach of contract and breach of good faith covenant claims.  MONY also admitted that Dominguez's negligent infliction of emotional distress claim should be remanded to the District Court, since the District Court only dismissed that claim because it found that MONY did not breach its contract with Dominguez.  Since the breach issue had to be remanded, the negligent infliction of emotional distress issue had to be revisited as well.  Dominguez also raised an intentional infliction of emotional distress claim at the district court level, which the District Court dismissed on other grounds.  Dominguez did not raised that issue on appeal.  As a failure to raise and argue an issue on appeal constitutes a waiver of that issue, the USCA affirmed the District Court's dismissal of Dominguez's intentional infliction of emotional distress claim.  The USCA thus reversed the District Court's summary judgment against Dominguez on the breach of contract, breach of the covenant of good faith and fair dealing, and negligent infliction of emotional distress claims.  It affirmed the District Court's summary judgment in favor of MONY on the intentional infliction of emotional distress claim.

7)  TRUTH IN LENDING ACT / BANKRUPTCY:  Guerpo v. Amresco Residential Mortgage Corp., 00-15658 (9th Cir. July 11, 2001) (unpublished). B. Fletcher, Canby, and Paez, Circuit Judges.
         Guerpo appealed a decision of the District Court for Hawaii, Judge Gillmor presiding, which dismissed her Truth in Lending Act ("TILA") complaint against the original and subsequent holders of the mortgage on her house.  When Guerpo declared bankruptcy, her property became the property of the bankruptcy estate under 11 USC Sec. 541(a).  This included "all legal or equitable interests of the debtor in property," id at 541(a)(1), a phrase that has been interpreted to include causes of action, including TILA rescission claims.  Thus, only the bankruptcy trustee could bring the TILA action, and the District Court did not err in holding that Guerpo lacked statutory standing to sue.  For the same reason, the District Court did not err in denying Guerpo's Motion to Alter and Amend the Judgment.  Nor did the District Court err in refusing to give Guerpo a lengthier extension of time to cure the standing problem.  To grant the second extension, the court would have had to issue a TRO to prevent the sale at auction of Guerpo's house, and the district court correctly held that without a plaintiff with proper standing, it could not issue such a TRO.  The USCA also held that the District Court did not err in dismissing the complaint with prejudice.  Because the bankruptcy trustee had never abandoned the right to sue, the District Court did not abuse its discretion in prohibiting Guerpo from returning to court unless and until she had standing.  The USCA noted that the phrase, "with prejudice," is to be construed narrowly in this instance.  The case was dismissed "with prejudice" only because Guerpo did not have statutory standing in her then existing situation.  The dismissal thus will not preclude the bankruptcy trustee from pursuing the same TILA action, nor will it preclude Guerpo from filing suit should the trustee abandon or assign the right to sue to Guerpo.  In either case, the plaintiff will have acquired statutory standing to sue under TILA, and the dismissal with prejudice will have no preclusive effect.  Finally, the District Court did not err by failing to transfer the case to the bankruptcy court.  The District Court was the proper court to determine whether Guerpo had standing to sue, especially given the final judgment in the bankruptcy proceeding.  Moreover, Guerpo never asked the District Court to transfer the proceedings.

8)  BANKRUPTCY: In re Ditter, 00-55276 (9th Cir. July 12, 2001) (unpublished).  Hug, Graber, and W. Fletcher, Circuit Judges.   Greenberg and his firm appealed from a decision of the Bankruptcy Appellate Panel affirming a bankruptcy court's dismissal of the debtors Chapter 7 bankruptcy petition.  The USCA affirmed.  The bankruptcy court had correctly found that there was cause for dismissal, as required by 11 USC Sec. 707(a).  It found that the bankruptcy case no longer served a purpose because (1) the estate's assets had been depleted and (2) the debtors' Chapter 7 discharge had been revoked.  These findings were supported by the record.  The bankruptcy court also correctly concluded that the appellants had not established that they would suffer "plain legal prejudice" as a result of the dismissal.  The appellants maintained that the dismissal prejudiced them in three ways.  It caused them to lose "a bargained for settlement," to lose $40,000, and to be subject to future litigation.  However, those factors did not show plain legal preju-dice.  The settlement agreement was never approved by the bankruptcy court, so the appellants did not lose a benefit to which they had become entitled.  The appellants lost the $40,000, not as a result of the dismissal, but because (for unrelated reasons) they waived their right to recover it.  The appellants thus "lost" the $40,000 only if they are still before the bankruptcy court;  the parties agreed that the appellants will be given a credit of $40,000 against any amount awarded as a result of a state-court settlement or judgment.  Finally, the fact that the appellants may face future litigation because the dismissal left the malpractice claim unresolved did not constituted plain legal prejudice.  In short, cause existed for the dismissal and it did not subject the appellants to plain legal prejudice.

9)  BANKRUPTCY / TAXATION: In re Artiglio, 00-56144 (9th Cir. July 11, 2001) (unpublished).  O'Scannlain, Tashima, and Thomas, Circuit Judges.
        Sorenson, the Executive Director of the California State Board of Equalization ("SBE"), appealed a judgment of the Bankruptcy Appellate Panel reversing the bankruptcy court's order dismissing Artiglio's adversary proceeding on sovereign immunity grounds.  Artiglio had brought an action against Sorenson under Ex Parte Young, 209 US 123 (1908), seeking a declaratory judgment from the bankruptcy court that certain state sales taxes he owed to the SBE were discharged in his Chapter 7 proceeding and seeking injunctive relief barring Sorenson from taking further action to collect such taxes.  Sorenson maintained that Artiglio's action fell within one of the exceptions to the Ex Parte Young doctrine articulated in Idaho v. Coeur d'Alene Tribe, 521 US 261 (1997), and Seminole Tribe v. Florida, 517 US 44 (1996).  He also maintained that California is the real party in interest in Artiglio's adversary proceeding, and hence that this action is barred by state sovereign immunity.  Finally, Sorenson maintained that the Tax Injunction Act, 28 USC Sec. 1341, precluded the bankruptcy court from issuing the injunctive and declaratory relief Artiglio sought.  The USCA found Sorenson's arguments identical to those rejected recently in In re Ellett, 00-15128 (9th Cir. July 16, 2001).  Goldberg thus directly controlled this appeal.  [See Published Opinion #6 above.]

10)  BANKRUPTCY / TAXATION: In re Pattullo, 99-17615 (9th Cir. July 11, 2001) (unpublished).  Schroeder, Lay, and Thompson, Circuit Judges.
          The IRS appealed an order of the District Court for Arizona, Judge McNamee presiding, affirming the bankruptcy court's determination that the Pattullos were eligible to file for Chapter 13 bankruptcy relief because the amount of their unsecured debt did not exceed the statutory maximum of $250,000 under 11 USC Sec. 109(e)(1997). 
          The USCA affirmed.  The IRS maintained that the bankruptcy court erred by concluding that the IRS was bound under the doctrine of claim preclusion by a stipulation approved by the bankruptcy court in a prior Chapter 7 case in which the parties agreed that the IRS had a secured claim for $309.871 and an unsecured priority claim of $105,501.  The USCA disagreed.  The bankruptcy court had properly concluded that the Chapter 7 and 13 cases involved the same claim.  Eligibility for Chapter 13 filing is determined by the amount and nature of the claims against the debtor.  The amount and nature of the IRS's claims against the debtors is exactly what the bankruptcy court determined in its January 21, 1997 order approving the parties' stipulation in the Chapter 7 case.  Although the IRS argued that it was unnecessary to determine the value of the collateral securing its claim in the Chapter 7 case, the fact re-mained that the IRS could have investigated what collateral was available and what its value was to secure its claim before it stipulated to the amount of its secured claim.  The IRS also maintained that the bankruptcy court erred by concluding that it was not entitled to claim, in the Chapter 13 case, interest that accrued on its secured and unsecured claims from July 26, 1995 (the date the debtors' prior Chapter 11 case was converted to Chapter 7) through January 21, 1997 (the date of the bankruptcy court's order adopting the parties' stipulation in the Chapter 7 case) because the IRS failed to include such interest in the stipulation.  The USCA disagreed.  Although it is true that the IRS would not have been entitled to claim this post-Chapter 7 petition interest in the Chapter 7 case, the fact remained that the IRS chose to stipulate to the amount of its secured and unsecured claims and could have elected to include post-Chapter 7 petition interest in the stipulation establishing the IRS's claims.  Because the IRS chose not to include such interest in the stipulation, it is barred from claiming this interest in the Chapter 13 case.  The bankruptcy court properly determined that the debtors were eligible to file for Chapter 13 relief because their total unsecured debt did not exceed $250,000.

11)  TAXATION: Wong v. CIR, 00-70745 (9th Cir. July 5, 2001) (unpublished). Wallace, Sneed, and Skopil, Circuit Judges.   
       The Wongs appealed the tax court's dismissal of their petition for a redetermination of a tax deficiency.  The USCA affirmed.  The Wongs failed to petition the tax court within 90 days of the issuance of their notice of tax deficiency as required by 26 USC Sec. 6213(a).  The filing of a timely petition is a jurisdictional requirement.  The USCA said it did not agree with the Wongs that their correspondence with the IRS extended or renewed the 90-day filing period.  In fact, the Wongs were repeatedly informed by the IRS that the correspondence did not extend or stay the filing period.  Finally, there was nothing in the record to support the Wongs' contention that the notice of deficiency was either defective or rescinded.

12)  TAXATION: Parker v. CIR, 99-71517 (9th Cir. July 5, 2001) (unpublished). Beezer, O'Scannlain, and W. Fletcher, Circuit Judges.
        The Parkers appealed a tax court's decision upholding the CIR's assessment of a deficiency on their 1991 tax returns.  The tax court held that to defer recognition of the gain on the 1991 sale of their principle residence under 26 USC Sec. 1034, the Parkers, within two years of the sale of their old residence, had to purchase and put into use a new principal residence which cost more than the sales price of their old principal residence.  The USCA agreed.  The tax court found that, although the Parkers spent a total of $380,045 within the statutory period to purchase a new 1400 square-foot home and to begin construction on a detached 3000 square-foot house, they did not put their unfinished 3000 square-foot house into residential use within two years.  Because their new 1400 square-foot home cost them only $169,500, and because they sold their old residence for $363,353, the tax court found that the sales price of the old residence exceeded the purchase price of the portion of the new residence which was both purchased and put into use within two years.  The USCA concluded that these findings were not clearly erroneous.

13)  SANCTIONS:  Enercon GmbH V. Erdman, 00-15399 (9th Cir. July 11, 2001) (unpublished). Schroeder, Lay, and Thompson, Circuit Judges.
        Enercon GmbH and its counsel, Sears, appealed an order of the District Court for the Northern District of California, Judge Whyte presiding, which imposed $25,000 in sanctions against them, jointly and severally, under FRCP 11. 
         The USCA affirmed the imposition of sanctions, but vacated the award of $25,000 against Sears, and remanded for the Dis-rict Court to consider materials regarding Sears' ability to pay the amount ordered.  Enercon and Sears maintained that the defendants violated FRCP 11(c)(1)(A) by failing to wait at least 21 days after serving their amended motion for sanctions before filing the motion with the District Court.  The USCA disagreed.  Although the defendants simultaneously served and filed their amended motion for sanctions, the defendants properly served their original motion for sanctions at least 21 days prior to filing, and Enercon had ample opportunity to withdraw its amended complaint.  Enercon relied on Barber v. Miller, 146 F.3d 707 (9th Cir. 1998) ("The purpose of the safe harbor … is to give the offending party the opportunity, within 21 days after service of the motion for sanctions, to withdraw the offending pleading and thereby escape sanctions."  The USCA found Enercon's reliance on Barber misplaced as, unlike in Barber, the defendants here did not delay serving the original motion until the conclusion of the case.  Enercon and Sears also maintained that the District Court erred in determining that the amended complaint was frivolous and filed for an improper purpose.         
      However, the USCA found no merit in this contention.  The District Court properly determined that:  (1) the antitrust claim was frivolous because the defendants were entitled to immunity under the Noerr-Pennington doctrine;  (2) the malicious prosecution claim was frivolous because the prior proceedings had not been terminated in Enercon's favor;  and (3) patent misuse is an affirmative defense to a suit for patent infringement, not an independent cause of action.  The USCA concluded that the District Court reasonably inferred that Enercon's amended complaint was filed for an improper purpose because it was baseless and prepared by an experienced attorney.  Finally, Sears maintained that the District Court should have permitted her to make a showing of her inability to pay the amount of the sanctions ordered.  The USCA agreed.  In response to the District Court's direction to file submissions on defendants' reasonable fees and costs, Sears requested the court's permission to submit information regarding her ability to pay and stated in a declaration that her "financial condition can best be described as extremely insecure and precarious."  The District Court should have permitted Sears to make a showing of her professed inability to pay the amount of the sanctions ordered.  The USCA vacated the award of $25,000 against Sears and remanded for consideration of the financial materials she may present at a hearing, which in the discretion of the District Court may be conducted in camera.

14)  RICO / MAIL & WIRE FRAUD: Demaria v. Sykora, 00-15183 (9th Cir. July 12 2001) (unpublished). Schroeder, Lay, and Thompson, Circuit Judges.
       In this action under the Racketeer Influenced Corrupt Organization ("RICO") law, the plaintiff alleged that the defendants engaged in a fraudulent enterprise by first concealing from the owner of certain mining claims gold defendants mined from the claims and by then disposing of the proceeds from the sale of that gold, rather than presenting all the gold to the plaintiff for selection of the plaintiff's royalty share.  The plaintiff is a successor-in-interest of the original owner of the mine.  She brought this action against the individuals who leased the mining claims and eventually purchased them (the Sykoras), as well as the dealers who distributed the gold mined from those claims (the Leichts).  The plaintiff alleged that the defendants conspired to defraud her and that the scheme was materially furthered by the distribution of the proceeds to bank accounts throughout the world by wire transfers, and by mailing of the gold itself to domestic and international buyers.  The District Court for the Eastern District of California, Judge Burrell presiding, dismissed the action for failure to state a claim under FRCP 12(b)(6).  The District Court concluded that the alleged RICO predicate acts of mail and wire fraud did not proximately cause the plaintiff's injury, which the District Court held was caused by common-law fraud.  When assessing the alleged predicate acts of mail and wire fraud that allegedly proximately caused the plaintiff's injury, the District Court looked only to the defendants' failure to present to the plaintiff the entire amount of gold mined from the claim.  It viewed that failure, which did not involve any mail or wire communications, as constituting the entire injury.  
       However, the USCA noted that the plaintiff correctly pointed out that the entire scheme included marketing the concealed gold and distributing it in ways that concealed the full amount of the profits from the mine.  The scheme required the use of mail and wire transactions.  Plaintiff's claims, at least as alleged in the complaint, which the USCA said it had to accept that this stage, established that the mail and wire fraud provided essential components of the entire scheme—as, without the predicate acts, the gold could not have been sold to domestic and international buyers in remote locations and the profits could not have been concealed.  The USCA found the case controlled by Schmuck v. USA, 489 US 705 (1989).  It held that a fraudulent scheme amounts to mail fraud if it is furthered by use of the mails, even though the de-fendant has not used mails to make a misrepresentation.  In the instant case, the defendants did not use the mail and wire transaction to make fraudulent misrepresentations, but the entire fraudulent scheme was advanced by the use of the mail and wires.  This was sufficient to satisfy the RICO standing requirement of an injury proximately caused by the alleged predicate acts.  It is, the USCA held, the entire scheme of mail and wire fraud alleged by the plaintiff that deprived the plaintiff of royalties and then lulled her into selling the mine at an artificially low price.

15)  RICO: Western Select Securities v. San Francisco City & County Employees' Retirement System, 00-15198 (9th Cir. July 12 2001) (unpublished). Schroeder, Lay, and Thompson, Circuit Judges.
       The District Court for the Northern District of California, Judge Walker presiding, dismissed, under FRCP 12(b)(6), Western Select Securities' action against the City and County of San Francisco, several city organizations, and their employees, as well as a number of private investment companies and their employees.  Western Select Securities ("Western") alleged that the public and private defendants conspired to exclude Western and other woman-minority-, and locally-owned businesses from participating in the investment management of the San Francisco Employees' Retirement System ("SFERS").  Western alleged violation of the Racketeer Influenced Corrupt Organization ("RICO") law, 18 USC Sec. 1961, et seq.
       The USCA affirmed.  The key issue was whether the allegations of the complaint were sufficient to state a RICO claim.  Un-der well-established Circuit law, the complaint had to show that the alleged predicate acts of mail and wire fraud proximately caused Western's specific injury.  However, Western had alleged no injury.  The failure of SFERS or its prime contractors to assign more trades to Western did not constitute a direct injury proximately caused by the predicates.  Moreover, the predicates set forth in the complaint seemed to relate principally to reporting practices in connection with SFERS transactions, not to any mail or wire fraud.  Western also sought damages for violations of San Francisco Administrative Code Sec. 12D, which requires City departments to make a good faith effort to provide opportunities for woman-, minority-, and locally-owned businesses to compete for City contracts.  However, Sec. 12D contains its own enforcement provisions that do not create any claim for direct judicial relief or private cause of action.  Western further alleged that some or all of the defendants owed it a fiduciary duty that was breached.  California recognizes a fiduciary obligation only when law imposes such a relationship or when one party knowingly acts on behalf and for the benefit of another.  Neither situation exists here.  Under California law, defendants owed Western no fiduciary duty.  Contrary to Western's contention, Sec. 12D does not establish a fiduciary duty as a matter of law, nor does it guarantee Western or any other brokerage a minimum amount of SFERS business.  The USCA concluded that the District Court did not err in dismissing Western's state fraud claim, because Western did not alleged material misrepresentation, injury, and reliance as required under California law.  To the extent that the plaintiff sought a remand with instructions to permit amendment of the complaint, the USCA declined the request.  At no time had Western indicated how it could cure the defects in the complaint, and the USCA could not see how the defects could be cured.