2)  CONTRACTS:  Vestar Development II v. General Dynamics Corp., 99-56455 (9th Cir. May 10, 2001). Damages for lost profits resulting from the breach of an agreement to negotiate the sale of property upon which the buyer planned to construct a shopping center and lease space to merchants were too speculative to satisfy California's "reasonable certainty" requirement;  the terms of the sales agreement would have to be know to determine lost profits, but here a sales agreement was not reached.  Hug (author) and B. Fletcher, Circuit Judges, and King, District Judge.  G. Post of San Diego, CA, for the appellant;  R. Franch of Chicago, IL, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  ENVIRONMENTAL LAW:  Pacific Coast Federation of Fishermen's Assoc. v. National Marine Fisheries Service, 99-36027 (9th Cir. May 31, 2001).  A "no-jeopardy" biological opinion, issued by the National Marine Fisheries Service, is reviewable as a "final" agency action within the meaning of the Administrative Procedures Act as it marks the "consummation" of the NMFS's consultation process, "alters the legal regime," and has direct and appreciable legal consequences.  Goodwin (author), Hug, and Brunetti, Circuit Judges.  K. Barton of Washington, DC, for the defendant-appellant;  M. Rutzick of Portland, OR, for the defendants-intervenors-appellants;  P. Goldman of Seattle, WA, for the appellees (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  ESTATE TAX:  Estate of Paul Mitchell v. CIR, 99-70421 (9th Cir. Order & Amended Opinion filed May 25, 2001).  Where the CIR's estate tax deficiency determination has been shown by the CIR's own experts to be arbitrary and excessive, the burden of proof as to the accuracy of the additions to tax shifts to the CIR;  concurring, Judge Hug wrote separately to highlight an inconsistency in the Tax Court's opinion that should be addressed on remand.  Hug (concurring), Trott, and Wardlaw (author), Circuit Judges.  B.J. Williams of Washington, DC, and D. Wong of Honolulu, HI, for the petitioner-appellant;  G. Rothenberg of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  ESTATE TAX:  Estate of Simplot v. CIR, 00-70013 (9th Cir. May 14, 2001).  In valuing stock for federal estate tax purposes, the Tax Court erroneously attributed a premium to minority Class A stock (the only voting stock) in the J.R. Simplot Company;  dissenting, Judge Fletcher agreed with the majority that at issue was the value of 18 shares of A stock in the J.R. Simplot Company at the time of Richard R. Simplot's death, but he could find no clear error either in the value the Tax Court found for those shares or in the methodology it employed to determine that value.  Hug, Noonan (author), and W. Fletcher (dissenting), Circuit Judges.  S. Fink of Chicago, IL, for the petitioner-appellant;  P. Speck of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  TAXATION:  Stein v. Cadle Co., 99-56751 (9th Cir. May 10, 2001).  The Federal Priority Statute gave the United States the right to be paid first from a judgment debtor's fund, a determination that resulted in another judgment creditor being precluded from receiving anything from the fund;  the Federal Tax Lien Act does not control claim priorities where the government has a judgment against a person who fails to honor a compensation levy.  Pregerson, Fernandez (author), and Graber, Circuit Judges.  W. Tribbey of La Verne, CA, for the defendant;  T. Clark of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  TAXATION:  Emert v. CIR, 99-71518 (9th Cir. May 21, 2001).  A notice of deficiency that required a change in the taxpayer's method of accounting from cash to accrual made evident the possibility of a 26 USC Sec. 481 computational adjustment;  the Sec. 481 adjustment was thus not a new issue and was proper for Tax Court Rule 155 consideration.  Beezer (author), O'Scannlain and W. Fletcher, Circuit Judges.  D. Kirsch of San Jose, CA, for the petitioner-appellant;  T. McLaughlin of Washington, DC, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  BANKRUPTCY:  In re Taggart, 99-56343 (9th Cir. May 10, 2001).  An attorney's costs for disciplinary proceedings brought by California's bar association is compensation to the bar for pecuniary loss (rather than a fine, penalty, or forfeiture) and is thus dischargeable in bankruptcy.  B. Fletcher (author), O'Scannlain, and Gould, Circuit Judges.  T. Taggart pro se;  M. Moffat of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  BANKRUPTCY:  In re Dudley, 99-55756 (9th Cir. May 23, 2001).  An individual retirement account "designed and used for retirement purposes" may qualify as a "private retirement plan" under California Code Civil Procedure Sec. 704.115(a)(3) and, as such, be exempt from creditors' claims in a Chapter 7 bankruptcy.  Pregerson, Canby, and Thompson (author), Circuit Judges. N. Bernstein of Rancho Cucamonga, CA, for the appellants;  D.E. Hays of Irvine, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  BANKRUPTCY:  In re Scovis, 99-55679 (9th Cir. May 11, 2001).  The $250,000 statutory debt limit for Chapter 13 eligibility should normally be determined by the debtor's originally filed schedules, checking only to see if they were made in good faith;  dissenting, Judge Nelson thought the exercise of jurisdiction was unwarranted in this case.  D.W. Nelson (dissenting), Brunetti (author), and Koz-inski, Circuit Judges.  L. Rosenthal of Woodland Hills, CA, for the appellants;  C. Henrichsen of Thousand Oaks, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY:  In re Harmon, 00-15130 (9th Cir. May 9, 2001).  A state court judgment that made no express finding as to whether fraud had been committed within the meaning of 11 USC Sec. 523(a)(2)(A) did not preclude the issue from being raised in an adversary action in bankruptcy court. B. Fletcher (author), O'Scannlain, and Gould, Circuit Judges.  H. White of Auburn, CA, for the appellant;  M. Serlin of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  BANKRUPTCY:  In re Baldwin, 00-15332 (9th Cir. May 9, 2001).  The bankruptcy court properly gave preclusive effect to a California state court default judgment for the plaintiff in an intentional tort action;  that precluded a debtor from litigating willful and malicious injury issues in a non-dischargeability action.  B. Fletcher (author), O'Scannlain, and Gould, Circuit Judges.  D. Provencher of Santa Rosa, CA, for the appellants;  P. Lacques of San Rafael, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  INSURANCE:  Stewart Title Guaranty Co. v. Park, 99-56366 (9th Cir. May 18, 2001).  Under California Business and Professions Code Sec. 10471(a), a title insurance company that satisfied its obligations to its insured following embezzlement by a mortgage broker was not entitled to payment from the state's Real Estate Recovery Account to recover a portion of an unsatisfied judgment against the embezzling brokers.  Hug and B. Fletcher (author), Circuit Judges, and Illston, District Judge.  J. Gale of Los Angeles, CA, for the appel-lant;  B. Holcomb of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  ADMIRALTY / JURISDICTION:  La Reunion Francaise SA v. Barnes, 99-55487 (9th Cir. May 3, 2001).  For purposes of admiralty jurisdiction under 28 USC Sec. 1333, a marine insurance policy, requiring the storage of a boat on land for six months of each year and providing coverage for theft while the boat is on land, is wholly maritime in nature.  D.W. Nelson (author), Brunetti, and Kozinski, Circuit Judges.  S. Goldman of Long Beach, CA, for the appellant;  A. Hardiman of Marina del Rey, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  ADMIRALTY:  Simeonoff v. Hiner, 99-35910 (9th Cir. May 8, 2001).  A seaman who responds to a superior's urgent cry for help cannot be held contributorily negligent for injuries that occurred in carrying out that superior's orders.  Pregerson, Thomas, and Gould (author), Circuit Judges.  M. Sandberg of Anchorage, AK, for the plaintiff-appellant;  K. Schoolcraft of Anchorage, AK, for the defen-dants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  ERISA:  Dishman v. UNUM Life Insurance Company of America, 99-55963 (9th Cir. May 8, 2001).  ERISA did not preempt a claim that a long-term disability benefits provider was vicariously liable under California law for the tortious invasion of privacy perpetrated by investigative firms the provider hired.  Beezer, T.G. Nelson (author), and Berzon, Circuit Judges.  T. Shardlow of Pasadena, CA, for the insured;  L. Green of Los Angeles, CA, for the insurer. (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  ARBITRATION:  Teamsters Local 58 v. Boc Gases, 98-35573 (9th Cir. May 16, 2001).  Even assuming a public policy requiring commercial truck drivers to be mental and physical fit, an arbitrator's award reinstating a driver who was discharged following an accident involving hazardous materials was not preempted as the arbitrator had found the driver fit to perform his duties. Trott, Kleinfeld, and Silverman (author), Circuit Judges.  B. Colven of Vancouver, WA, for the plaintiff;  B. Kampas of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  ARBITRATION:  Harden v. Roadway Package Systems, Inc., 98-55331 (9th Cir. May 22, 2001).  A district court lacked authority to compel arbitration in this case as the motion to compel arbitration was not based on state law and the Federal Arbitration Act does not apply to package delivery drivers, like Harden, who are engaged in interstate commerce.  B. Fletcher, D.W. Nelson (author), and Brunetti, Circuit Judges.  R. Proctor of Sierra Madre, CA, for the plaintiff-appellant;  A. Silbergeld of Los Angeles, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  LABOR LAW / STOCK OPTIONS:  Scribner v. WorldCom, 99-35239 (9th Cir. May 8, 2001).  An employee whose termination was not based on deficient performance was terminated "without cause" for purposes of his stock option contract that became exercisable immediately upon "termination without cause."  Thompson, Trott (author), and Paez, Circuit Judges.  E. Anson of Coeur d'Alene, ID, for the appellant;  L. Feldman of Seattle, WA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  LABOR LAW:  United Food and Commercial Workers Union, Local 1036 v. NLRB, 99-71317 (9th Cir. May 17, 2001).  Neither the NLRB nor the USCA could alter or distinguish the holding of Communications Workers of America v. Beck, 487 US 735 (1988), that NLRA Sec. 8(a)(3) and Sec. 2, Eleventh of the Railway Labor Act are "statutory equivalents," which preclude charging organizing ex-penses to objecting nonmembers;  concurring, Judge Wardlaw found it troubling that Beck precludes the USCA from deferring to the fact-finding and expertise of the agency charged with administering labor laws.  Noonan (author), McKeown,  and Wardlaw (concurring), Circuit Judges.  D. Rosenfeld of Oakland, CA, for Local 1036;  G. Taubman of Springfield, VA, for the petitioners-intervenors;  F. Cornnell of Washington, DC, for the NLRB;  J. Coppess of Washington, DC, for UFCW Locals 7 and 951. (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  SUMMARY JUDGMENT:  The Fair Housing Council of Riverside County v. Riverside Two, 99-55830 (9th Cir. May 21, 2001).  When simultaneous cross-motions for summary judgment on the same claim are before a district court, that court must consider the appropriate evidentiary material identified and submitted in support of and in opposition to both motions before ruling on either of them.  Pregerson, Fernandez, and Graber (author), Circuit Judges.  C. Dover of Fountain Valley, CA, for the plaintiffs-appellants;  E. Xanders of Beverly Hills, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  CIVIL PROCEDURE:  Matthews v. Oregon State Board of Higher Education, 98-36218 (9th Cir. May 9, 2001).  When substantive issues in an earlier appeal are identical to issues decided on a later appeal in a companion case, the claims in the former are precluded by the latter.  Goodwin, Graber, and W. Fletcher, Circuit Judges.  Per Curiam.  D. Matthews for the plaintiff-appellant;  C. Chute and R. Wasserman of Salem, OR, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  FEDERAL QUESTION JURISDICTION:  Patrickson v. Dole Food Co., 99-16524 (9th Cir. May 30, 2001).  A class action brought in state court by banana workers from Costa Rica, Ecuador, Guatemala and Panama against multinational companies and alleging only state law claims based on exposure to toxic pesticides did not give rise to federal question jurisdiction.  Kozinski (author), Graber, and Fisher, Circuit Judges.  J. Massey of Washington, DC, for the plaintiffs-appellants;  R. Klonoff of Washington, DC, for the defendants-appellees;  P. Paden of New York, NY, for the third-party-defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  JUDGMENTS:  John v. USA, 00-35121 (9th Cir. May 7, 2001).  Sitting en banc, the USCA declined to disturb a district court's ruling that the United States may enforce at the Batzulnetas fishing site the rural subsistence priority established by the Alaska National Interest Lands Conservation Act ("ANILCA");  concurring, Judge Reinhardt, joined by Judge Tashima, thought there was no justification for granting an initial en banc hearing;  concurring, Judge Tallman, joined by Judges Tashima and W. Fletcher, did not believe that Congress intended the reserved water rights to limit the scope of ANILCA's subsistence priority;  dissenting, Judge Kozinski, joined by Judges O'Scannlain and Rymer, thought that Congress did not clearly state an intent that the rural subsistence priority apply to navigable waters because the United States does not clearly have "title" to navigable waters or to any interest them;  writing separately, Judge Rymer was troubled by the fact that Alaska has been able to twice appeal and have twice decided the same issue.  Schroeder, Reinhardt (concurring), Kozinski (dissenting), O'Scannlain, Rymer (special statement), Hawkins, Tashima, Graber, McKeown, W. Fletcher, and Tallman (concurring), Circuit Judges.  Per Curiam.  AAG J. Grace of Anchorage, AK, for the defendants;  H. Miller of Anchorage, AK, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  UNPUBLISHED DECISIONS:  Sorchini v. Covina, 99-56257 (9th Cir. May 4, 2001).  An unpublished disposition may not be cited for the purpose of providing notice to the court of the existence or absence of legal precedent.  Kozinski and Tallman (dissenting), Circuit Judges, and Zapata, District Judge.  Per Curiam.  R. Mann of Los Angeles, CA, for the plaintiff;  C. Lee of Pasadena, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  ATTORNEYS' FEES:  Shaw v. City of Sacramento, 99-16859 (9th Cir. May 10, 2001).  An employee did not qualify as a prevailing party for purposes of attorneys' fees under the California Fair Employment and Housing Act where the jury found that, although he was subject to unlawful discrimination, his claim was barred by a validly executed waiver in his employment agreement.  Schroeder, Wallace, and Tallman (author), Circuit Judges.  L. Donahue of Gold River, CA, for the plaintiff-appellant;  T. Cregger of Sacramento, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  ATTORNEYS' FEES:  Farmers Insurance Exchange v. Sayas, 99-56844 (9th Cir. May 7, 2001).  Under California law, attorneys' fees may be awarded to attorneys who represent each other in recovering a contingent fee due to them under a client retainer agreement that allows the prevailing party reasonable attorneys' fees in a dispute between the attorneys and the client;  dissenting Judge Hug thought that representing each other was a device that should not overcome the policy of Trope v. Katz, 45 Cal.Rptr. 2d 241 (Cal. 1995).  Hug (dissenting), Duhe, and Tallman (author), Circuit Judges.  J. Mower of Irvine, CA, for the appellants;  J. Quisenberry of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  ATTORNEYS' FEES:  USA v. Sherburne, 99-30213 (9th Cir. May 21, 2001).  Attorneys' fees may be recouped under the Hyde Amendment where a criminal prosecution is intended to harass and lacks sufficient foundation, but here the district court applied the wrong legal test for awarding the fees;  in addition, fees awarded under the Hyde Amendment should not be capped at $75 per hour.   McKeown (author), W. Fletcher, and Rawlinson, Circuit Judges.  K. Hoppmann of Washington, DC, for the USA;  P. Flaherty and W. Taleff of Great Falls, MT, and J. Smith of Missoula, MT, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  EXTRADITION:  Lee v. City of Los Angles, 98-55807 (9th Cir. May 4, 2001).  A federal district court in California had personal jurisdiction over New York law enforcement officers who interacted extensively with California law enforcement officers and deliberately traveled to California to take custody of and transport an individual for extradition.  Pregerson (author), W. Fletcher, and Gould, Circuit Judges.  M. Seplow of Venice, CA, for the plaintiffs-appellants;  J. Bogigian of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  IMMUNITY:  Case v. Kitsap County Sheriff's Dept., 98-36260 (9th Cir. May 9, 2001).  A police officer who made a warrantless arrest based on an out-of-state felony warrant listed on the National Crime Information Center computer system was entitled to qualified immunity in an action for unlawful arrest;  dissenting, Judge Ferguson thought that, because reasonable minds could differ as to whether the officer's conduct was sufficiently outrageous, reckless, and intentional, and as to where it caused the plaintiff to suffer severe emotional distress, the question should have been put to a jury.  Alarcon, Ferguson (dissenting), and McKeown (author), Circuit Judges.  C. Longacre of Port Orchard, WA, for the plaintiff;  J. Walker of Port Orchard, WA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  IMMUNITY:  Charfauros v. Board of Elections, 99-15789 (9th Cir. May 10, 2001).  Members of a Board of Elections violated the plaintiffs' right to vote by administering pre-election day challenges with regard to Republican Party voters (but not also with respect to Democratic Party voters) in a school district election;  the individual members of the Board of Elections were not entitled to qualified immunity for that conduct.  Hug, Trott, and Wardlaw (author), Circuit Judges.  N. Gottfried of Saipan, CNMI, for the defendants;  B. Jorgensen of Koror, Palau, for the plaintiffs.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  IMMUNITY:  Navarro v. Block, 99-55623 (9th Cir. May 11, 2001).  Municipal officials were not entitled to qualified immunity in an action arising from their bad-faith execution of a municipal policy to indemnify police officers from punitive damage awards.  Browning, Brunetti, and Hawkins (author), Circuit Judges.  C. Lee of Pasadena, CA, for the defendant;  M. Yagman of Venice, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  IMMUNITY:  Robinson v. Prunty, 00-55922 (9th Cir. May 7, 2001).  Prison officials were not entitled to qualified immunity in an action where there existed a triable issue as to whether they were deliberately indifferent to an excessive risk that an inmate would be harmed when he was placed in a racially integrated prison yard.  Pregerson (author), Fernandez, and Graber, Circuit Judges.  M. Des Jardins of Sacramento, CA, for the defendants;  G. Robinson pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  SOCIAL SECURITY:  Pinto v. Massanari, 99-56000 (9th Cir. May 1, 2001).  In determining whether a disability claimant has the residual capacity to perform past relevant work, the ALJ had to clarify (1) whether his "step four" determination was based on the claimant's past relevant work as actually performed or as generally performed, and (2) how the claimant's language skills factor into the dis-ability determination.  Ferguson (author), Tashima, and Fisher, Circuit Judges.  R. Wilborn of Tucson, AZ, for the plaintiff-appellant;  D. Montano of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  SOCIAL SECURITY:  Pagter v. Massanari, 99-16619 (9th Cir. May 21, 2001).  The SSA's use of a "pooled-fund" method in interpreting its "one-half support" regulation for the purpose of determining "husbands' benefits" was entitled to deference.  Pregerson, Fernandez, and Graber (author), Circuit Judges.  R. Derevan of Irvine, CA, for the plaintiff;  G. Gulseth of San Francisco, CA, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  AMERICANS WITH DISABILITIES ACT:  Johnson v. Paradise Valley, 99-17530 (9th Cir. May 24, 2001).  In considering an employer's motion for judgment as a matter of law after an employee prevailed in a jury trial on a "regarded as disabled" claim under the ADA, there was sufficient evidence for the jury to conclude that the employer regarded the employee as disabled.  Kozinski, Hawkins, and Berzon (author), Circuit Judges.  R. Cook of Phoenix, AZ, for the plaintiff;  G. Lassen of Phoenix, AZ, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  FOURTH AMENDMENT:  USA v. Hawkins, 00-10149 (9th Cir. May 7, 2001).  Warrantless vehicle stops at military base gates do not violate an individual's right to privacy under the Fourth Amendment;  the base commander's regulations requiring vehicles entering or leaving the base to stop for inspection were a reasonable intrusion upon an individual's right to privacy under the Fourth Amendment.  Alarcon (author), Kozinski, and Hawkins, Circuit Judges.  AFPD D. Broderick of Sacramento, CA, for the defendant-appellant;  AUSA K. Melikian of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  FIRST AMENDMENT:  Hufford v. McEnaney, 99-36041 (9th Cir. May 22, 2001).  Discharging a firefighter for reporting that fellow firefighters downloaded pornography on firestation's computers violated his First Amendment rights;  the defendants were entitled to qualified immunity as they should have been aware that discharging the firefighter in retaliation for his truthful whistleblowing violated his constitutionally protected right to free speech.  Pregerson, Thomas (author), and Gould, Circuit Judges.  B. Dominick of Boise, ID, for the defendants;  J. Lynn of Boise, ID, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  FIRST AMENDMENT:  Amster v. City of Tempe, 00-15387 (9th Cir. May 15, 2001).  A city ordinance requiring that a person wanting to sit or lie on a city sidewalk for specific kinds of events, including demonstrations, to first obtain a permit does not violate the First Amendment.  T.G. Nelson, Hawkins, and Tallman (author) Circuit Judges.  M. Pontrelli of Tempe, AZ, for the defendant;  R. Amster pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  NATIVE AMERICAN LAW:  Cabazon Band of Mission Indians v. Smith, 99-55229 (9th Cir. May 17, 2001).  California's vehicle code prohibits tribal police officers from displaying emergency lights bars on their vehicles while off the reservation;  dissenting, Judge Browning thought the tribe's interests in supporting an effective public safety program preempted the state's interests in preventing motorists from slowing down when they see a tribal officer.  Rymer and T.G. Nelson (author), Circuit Judges, and Browning (dissenting), District Judge.  C. Longacre of Port Orchard, WA, for the appellant;  J. Walker of Port Orchard, WA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  IMMIGRATION LAW:  Carlson v. INS, 99-56171 (9th Cir. May 8, 2001).  A TD non-immigrant alien was not eligible for tuition-fee status at state universities as is available to residents.  D.W. Nelson, O'Scannlain (author), and Kleinfeld, Circuit Judges.  W. Harrell of Edmonton, Canada, for the appellant;  K. Robinson of Long Beach, CA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  IMMIGRATION LAW:  Chowdhury v. INS, 99-71159 (9th Cir. May 14, 2001).  In determining whether a money laundering conviction constitutes an aggravated felony under 8 USC Sec. 1101(a)(43)(D) such as to subject an alien to removal, the phrase "amount of funds" refers to the amount of money laundered, not the amount of loss suffered by victims of the underlying criminal activity.  D.W. Nelson (author), O'Scannlain, and Kleinfeld, Circuit Judges.  E. Quintanilla of Sherman Oaks, 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)  IMMIGRATION LAW:  Noh v. INS, 98-70982 (9th Cir. May 7, 2001).  A Deputy Assistant Secretary for Visa Services who gives a facially legitimate and bona fide reason for revoking a visa is not obliged to base that revocation on a ground specified in the regulations governing revocations by consular officers.  Hug and Thompson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  S. Folinsky of Los Angeles, CA, for the petitioner;  N. Reyna of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  IMMIGRATION LAW:  Montero-Martinez v. Ashcroft, 99-70596 (9th Cir. May 23, 2001).  The USCA lacked jurisdiction to review a BIA's final order of removal in which it ruled that the petitioners were statutorily ineligible for cancellation of removal as non-permanent residents under 8 USC Sec. 1229b(b)(1) because neither had a qualifying relative for the purposes of Sec. 1229b(b)(1)(D);  dissenting in part, Judge Pregerson said that even though he would exercise jurisdiction over the petitioners' argument because it requires the USCA to review a BIA decision that is not a "judgment," he concurred in majority's conclusion as the petitioners' argument that an adult daughter qualified as a "child" for purposes of cancellation of removal under INA Sec. 240A(B) was without merit.  Pregerson (dissenting in part), Silverman, and Tallman (author), Circuit Judges.  N. Marchi of Seattle, WA, for the petitioner;  D. Ogden of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  IMMIGRATION LAW:  USA v. Muro-Inclan, 00-50016 (9th Cir. May 8, 2001).  An alien's claim that his deportation would deprive his citizen wife of his assistance in raising and providing for their citizen children did not establish a plausible case of his eligibility for an extreme hardship waiver;  the alien's conviction under 8 USC Sec. 1326 was upheld as he failed to show prejudice;  dissenting, Judge Tashima thought the majority had misconstrued Circuit case law as to what showing is required to show prejudice.  Tashima (dissenting) and Fisher, Circuit Judges, and Zilly (author), District Judge.  FPD M. Stratton of Los Angeles, CA, for the appellant;  AUSA T. Searight of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  IMMIGRATION LAW:  USA v. Reyes-Pacheco, 00-50409 (9th Cir. May 15, 2001).  In sentencing an alien found in the United States after deportation, it is proper to use the alien's date of reentry (rather than the date he was "found in" the United States) to calculate his criminal history score.  Rymer, Hawkins, and Gould (author), Circuit Judges.  DFPD O. Karlin of Los Angeles, CA, for the defendant;  AUSA J. Matz of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  IMMIGRATION LAW:  Chau v. INS, 99-70448 (9th Cir. May 3, 2001).  In proceedings to determine nationality, the INS is not precluded from contesting whether an alien admitted under the Amerasian Immigration Act is a child of a United States citizen.  Schroeder, Beezer, and Paez (author), Circuit Judges.  N. Merritt of Phoenix, AZ, for the petitioner;  S. Houser of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  IMMIGRATION:  Gonzales-Caballero v. Mena, 00-15822 (9th Cir. May 30, 2001).  A parent's right of return of her child from removal under the Hague Convention on the Civil Aspects of Intl. Child Abduction is extinguished by an initial consent to removal, regardless of post-removal non-acquiescing conduct.  T.G. Nelson, Hawkins (author), and Tallman, Circuit Judges.  H. Figueroa of Tucson, AZ, for the plaintiff;  J. DeFrancesco of Sierra Vista, AZ, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  EVIDENCE:  USA v. Velasco-Heredia, 00-50107 (9th Cir. May 10, 2001).  Use of the preponderance of evidence standard of proof to determine the amount of marijuana attributable to a defendant was reversible error where the quantity determined increased the defendant's statutory maximum penalty from 5 to 40 years.  Trott (author), Thomas, and Berzon, Circuit Judges.  D. DiIoria of San Diego, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  MIRANDA WARNINGS:  USA v. Butler, 99-50752 (9th Cir. May 17, 2001).  Miranda warnings were required prior to questioning a person held in a locked cell during a border inspection as agents inspected his car.  Boochever and Silverman (author), Circuit Judges, and George, District Judge.  G. Hunt of San Diego, CA, for the defendant-appellant;  AUSA J. Goldstein of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  RIGHT TO COUNSEL:  Tamalini v. Stewart, 99-35888 (9th Cir. May 8, 2001).  A criminal appellant has no Sixth Amendment rights on appeal and no qualified right to choice of counsel.  Thompson, Trott (author), and Paez, Circuit Judges.  FPD R. Gombiner of Tacoma, WA, for the petitioner;  J. Samson of Olympia, WA, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  RIGHT TO COUNSEL:  USA v. Percy, 99-10488 (9th Cir. May 11, 2001).  A defendant interrogated by a federal officer following his arraignment in a tribal court validly waived his right to counsel.  Aldisert, Graber, and Fisher (author), Circuit Judges. AFPD B. Jacobson of Phoenix, AZ, for the defendant;  AUSA J. Welty of Phoenix, AZ, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  STUN BELTS:  Hawkins v. Comparet-Cassani, 99-55187 (9th Cir. May 30, 2001).  The Sixth Amendment does not bar the use of a stun belt on a defendant where necessary to protect courtroom security;  the district court did not abuse its discretion in so far as its injunction barred non-security uses.  Browning (author) and Tashima, Circuit Judges, and King, District Judge.  M. Fitts of Beverly Hills, CA, for the defendant;  S. Yagman of Venice, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  DOUBLE JEOPARDY:  USA v. Arlt, 97-50588 (9th Cir. May 31, 2001).  A defendant who has engaged in a conspiracy to commit an act proscribed by more than one statute may be convicted and punished for committing two offenses, one under the general conspiracy statute, 18 USC Sec. 371, and the other under a specific conspiracy statute;  the specific offense designated as the object of the conspiracy in a Sec. 371 indictment constitutes an element of the offense.  Schroeder, Reinhardt (author), O'Scannlain, Trott, Fernandez, Hawkins, Thomas, Graber, McKeown, Wardlaw, and Rawlinson, Circuit Judges.  K. Miller of Capistrano Beach, CA, for the defendant;  AUSA J. Mohrbacher of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  EMBEZZLEMENT:  USA v. Gillett, 99-50604 (9th Cir. May 14, 2001).  An employee of an armored car service under contract to transport deposits from a bank to the bank's cash vault is sufficiently connected to the bank to be prosecuted under 18 USC Sec. 656 which proscribes theft by a person "connected in any capacity with" any federally insured bank.  Hug (author) and B. Fletcher, Circuit Judges, and Illston, District Judge.  G. Ivens of Glendale, CA, for the appellant;  M. Raphael of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  SENTENCING:  USA v. Montano, 00-50255 (9th Cir. May 7, 2001).  A sentence enhancement for sophisticated concealment while smuggling did not apply to "crude and very basic" concealment efforts inherent in smuggling.  Tashima (author) and Fisher, Circuit Judges, and Zilly, District Judge.  I. Brauer of San Diego, CA, for the defendant;  AUSA M. Pierson of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  SENTENCING:  USA v. Johansson, 00-50245 (9th Cir. May 4, 2001).  A sentence enhancement for creating a risk of serious bodily injury applied to a conviction for conspiring to violate Dept. of Transportation regulations limiting the number of hours operators of motor carriers may drive and to conceal such violations by falsifying records.  Ferguson and Silverman, Circuit Judges, and Breyer (author), District Judge.  S. Greenberg of Los Angeles, CA, for the defendant;  AUSA W. Carter of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

58)  SENTENCING:  USA v. Salcido-Corrales, 00-30116 (9th Cir. May 22, 2001).  An upward departure was warranted where the defendant involved his child in the commission of his drug crimes.  McKeown, W. Fletcher (author), and Rawlinson, Circuit Judges.  H. Horsley of Seattle, WA, for the appellee;  FPD J. Oliver of Tacoma, WA, for the appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

59)  SENTENCING:  Grassi v. Hood, 00-35275 (9th Cir. May 16, 2001).  The denial of a prisoner's request for early release was proper under Bureau of Prisons Program Statement 5162.04 which disqualifies for early release prisoners who have received a two-point sentencing enhancement for carrying a firearm.  T.G. Nelson, Graber (author) and Rawlinson, Circuit Judges.  T. Gannon of Washington, DC, for the respondent;  DPD S. Sady of Portland, OR, for the petitioner.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

60)  SENTENCING:  USA v. Hernandez, 00-50220 (9th Cir. May 31, 2001).  The required notice of the court's intention to depart upward can be given at the beginning of the sentencing hearing.  Rymer, Hawkins, and Gould (author), Circuit Judges.  FPD K. House of Los Angeles, CA, for the defendant;  M. Krinsky of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

61)  SENTENCING / PAROLE:  Fenner v. U.S. Parole Commission, 00-15074 (9th Cir. May 23, 2001).  An ambiguity arising from the omission of a mandatory special parole term from an order amending sentence could be resolved by considering the sentencing judge's subjective intent;  the judge's statements were convincing and probative evidence that he intended the amended sentence to impose a term of special parole.  Wallace (author), Fisher, and Rawlinson, Circuit Judges.  AFPD J. Leavitt of Oakland, CA, for the petitioner;  AUSA T. Mazzucco of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

62)  HABEAS CORPUS:  Patterson v. Stewart, 00-15034 (9th Cir. May 30, 2001).  Fed. R. Civ. Proc. 6(a), the general rule for counting time, applies to the calculation of the one-year grace period for habeas petitioners whose convictions become final before the Antiterrorism and Effective Death Penalty Act of 1996 was enacted.  Reinhardt, Rymer, and Fisher (author), Circuit Judges.  AFPD J. Hawkins of Phoenix, AZ, for the petitioner;  J. Todd of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

1)  INTELLECTUAL PROPERTY / UNFAIR COMPETITION:  Saroyan Lumber Company v. El & El Products Corporation, 99-56565 (9th Cir. May 7, 2001) (unpublished).  Hug, Duhe, and Tallman, Circuit Judges.
        Saroyan Lumber sued El & El Wood Products, a former distributor of Saroyan's moldings, for copyright and trademark infringement, unfair competition, and breach of contract.  The District Court for the Central District of California, Judge Manella presiding, entered summary judgment for El & El based, in part, on Saroyan's failure to show damages.
        The USCA affirmed in part, reversed in part, and remanded.  First, under the Federal Rules of Civil Procedure, declarations or affidavits are admissible for purposes of summary judgment if they are based on personal knowledge, they set forth "such facts as would be admissible in evidence," and they show that the declarant or affiant is "competent to testify to the matters stated therein."  FRCP 56(e).  The District Court did not abuse its discretion in refusing to admit the declarations and exhibits of Saroyan's attorney.  Second, the USCA reviewed for an abuse of discretion the District Court's decision not to permit additional discovery pursuant to FRCP 56(f).  During the summary judgment hearing, Saroyan asked for a brief continuance to obtain a declaration that would authenti-cate its evidence, rendering it admissible.  The District Court did not abuse its discretion by denying Saroyan's FRCP 56(f) request for a continuance.  Although denial under these circumstances is generally disfavored, Saroyan's motion was untimely since it did not occur prior to the hearing on the summary judgment motion.  Third, the USCA reviewed the grant of summary judgment de novo.  The District Court found that based on the undisputed facts, Saroyan failed to show any loss on its part, or gain on the part of El & El resulting from the infringement.  Granting summary judgment based on "undisputed facts" is not proper when the non-moving party has proffered admissible evidence disputing material facts.  It is well established that the non-moving party is entitled to all justifiable infer-ences in its favor and that "at the summary judgment stage the judge's function is not himself to weigh evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial."  The District Court admitted into evidence the declaration of Karpus, a former employee at El & El.  Karpus testified that based on her personal knowledge, she was aware that El & El hired lumber mills to produce exact copies of the Premium Series, that El & El bought Premium Series samples from retailers in order to make these bootleg moldings, and that El & El had filled orders and was selling Premium Series profiles manufactured by mills other than Saroyan.  It was not proper for the District Court to discredit or disregard the evidentiary import of the admissible declaration of Karpus on the issue of damages.  The testimony contained in that declaration would allow a rational trier of fact to find for Saroyan as it provided more than a scintilla of evidence that El & El profited from the undisputed copyright infringement and breach of contract.  The USCA thus reversed the summary judgment on the copyright infringement and breach of contract claims as the admissible evidence was sufficient to create a genuine issue of fact as to whether Saroyan sustained damages.  Fourth, the admissible evidence was insufficient to create a genuine issue of fact relevant to unfair competition or trademark infringement.  Karpus' declaration did not address whether El & El used the "Premium Series" mark after terminating the distribution agreement or whether such unauthorized use was likely to confuse consumers.  Since the only admissible evidence did not implicate consumer confusion, the District Court did not err in granting summary judgment on these claims.  The USCA thus affirmed the grant of summary judgment on the trademark infringement and unfair competition claims.

2)  INTELLECTUAL PROPERTY: Oroamerica, Inc. v. D&W Jewelry Co., 01-55142 (9th Cir. May 21, 2001) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges.
        The District Court for the Central District of California, Judge Matz presiding, denied Oroamerica's request for a preliminary injunction.  The USCA affirmed.  Oroamerica alleged that D&W Jewelry's sale of certain jewelry chains infringed on Oroamerica's copyright in two jewelry chain designs.  Oroamerica requested, and the District Court denied, a preliminary injunction.  The USCA's inquiry was limited to whether the District Court abused its discretion in denying the request for the preliminary injunction or based its decision on an erroneous legal standard or a clearly erroneous finding of fact.  The USCA said it knew of no authority to support Oroamerica's contention that the district court was not entitled to consider the issuance of a design patent covering D&W Jewelry's gold chain as a relevant factor in evaluating whether to grant preliminary injunctive relief.  Nor could the USCA say that the District Court abused its discretion in concluding, in a balanced order based on findings derived only from the "current record," that Oroamerica had not shown either probable success on the merits or a balance of hardships tipping sharply in Oroamerica's favor.  The USCA concluded that due to the limited scope of its review of the law applied by the District Court and because the fully developed factual record may be materially different from that initially before the District Court, its disposition may provide little guidance as to the appropriate disposition on the merits.

3)  TELEMARKETING: Federal Trade Commission v. Affordable Media, 00-15644 (9th Cir. May 30, 2001) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges.
        The District Court for Nevada, Judge George presiding, entered summary judgment, holding the Andersons and their closely-held corporation, Financial Growth Consultants liable for violation of the Federal Trade Commission Act and the Telemarketing Sales Rule, 16 CFR Sec. 310.3(a)(2)(vi) (1995), in connection with the Andersons' telemarketing of fraudulent marketing opportunities.  The Andersons appealed pro se.  Lawson appealed pro se the District Court's order denying his motion to intervene.  The USCA affirmed.  Extensive  evidence indicated that the Andersons were recklessly indifferent to the falsity of representations made to consumers prior to 1997, and that they gained actual knowledge of the fraudulent nature of the investment scheme by September 1997.  The District Court thus did not error in holding the Andersons liable for restitution.  Because the USCA affirmed many of the rulings upon which the Andersons relied in contending that Judge George should have recused himself from the case, and because the Andersons' contentions were without factual support in the recorded, Judge George did not abuse his discretion in declining to recuse himself.  Because the defendants had no right to the release of frozen asserts for the payment of legal expenses, and because the Andersons violated the temporary restraining order and the preliminary injunction order when they refused to repatriate offshore assets, the District Court did not abuse its discretion in limiting the release of frozen assets to compensate attorneys.  Because Lawson's motion to intervene as of right was untimely, asserted no cognizable interest in the case, indicated no impairment of Lawson's interests if the judge denied the motion, and failed to prove that Lawson's putative interests weren't adequately represented without intervention, the District Court did not err in denying Lawson's motion to intervene as of right.

4)  ENVIRONMENTAL LAW:  Rocky Mountain Oil & Gas Assoc. v. U.S. Forest Service, 00-35349 (9th Cir. May 3, 2001) (unpublished).  Thompson, Trott, and Paez, Circuit Judges.
          The District Court for Montana, Judge Lovell presiding, entered summary judgment for the Forest Service in an action brought by the Rocky Mountain Oil & Gas Association and intervenor Independent Petroleum Association of America ("IPAA") to challenge the Forest Service's decision not to offer particular lands within the Lewis & Clark National Forest for oil and gas leasing.  The District Court concluded that IPAA lacked standing to sue and failed to establish that the Forest Service's decision was arbitrary, capricious or in violation of law.  IPAA appealed.  The USCA affirmed on the basis that IPAA lacked standing to bring National Environmental Policy Act ("NEPA"), National Forest Management Act ("NFMA"), and Multiple-Use Sustained Yield Act ("MUSYA") claims, all of which are brought under the Administrative Procedure Act ("APA"), and that its Establishment Claim lacked merit.  IPAA lacked Article III standing for its NEPA, NFMA and MUSYA claims because the Forest Service has discretion whether to authorize the leasing of any Forest Service land for mineral exploration.  Because the statute gives the Forest Service this discretionary power, IPAA has no "right" to bid for leases on any Forest Service land or to compel the Forest Service to authorize leasing of its land for mineral exploration.  Lacking such a right, IPAA suffered no injury in fact as a result of the Forest Service's decision not to lease land in question.  The absence of such a right foreclosed IPAA's argument that it has a procedural right to the proper administration of the various environmental laws.  The USCA also noted the IPAA lacked prudential standing on its NEPA claims as its interest in enforcing the statute was purely economic, and as such did not fall within NEPA's zone of interests.  IPAA next argued that the Forest Supervisor acted arbitrarily, in violation of the APA, in deciding not to lease the land because, in making that decision, she relied upon the Rocky Mountain Division's "value of place."  IPAA styled this as an "ultra vires" claim, alleging that the Forest Supervisor acted outside of her authority.  The USCA disagreed.  The Supervisor acted within her authority and in a non-arbitrary manner:  the psychological effects of an agency's decisions may be considered under the NEPA, and the Supervisor had a reasoned basis for her decision.  Finally, in support of its Establishment Clause claim, the IPAA argued that the Forest Service's decision not to lease the land was based on the current use of the land for Native American religious practices.  However, the USCA disagreed.  The Forest Service's decision not to lease the land satisfied the three-part test of Lemon v. Kurtzman, 403 US 602 (1971).  First, the Forest Service's decision had a secular purpose:  the agency considered many secular factors, such as public concern about "value of place," impacts to wildlife and other surface resources, tourism and recreational uses and preservation of options for future use.  Second, the primary purpose and effect of the decision not to lease was to protect the Rocky Mountain Division from oil and gas exploration, not to advance Native American religious beliefs.  Third, the decision not to lease does not foster excessive entanglement with religion.  Moreover, the government may, consistent with the Establishment Clause, accommodate religious practices in its decision-making processes.  Nor did the Forest Service's decision violate the endorsement test of the Establishment Clause because, given the many secular considerations cited in the Forest Service's Re-cord of Decision, a "reasonable observer" would not view the decision as an endorsement of religion.

5)  BANKRUPTCY: In re Dixie Farms Market, 01-55602 (9th Cir. May 23, 2001) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges.
        The District Court for the Central District of California, Judge Stotler presiding, ordered Patison's arrest and detention and affirmed the bankruptcy court's order of civil contempt.  Patison was held in contempt for refusing to appear and testify at a judgment debtor examination pursuant to the bankruptcy court's orders.  The USCA reversed.  Reviewing the civil contempt order for abuse of discretion, the USCA noted that a witness in a proceeding before or ancillary to any court of the United States who refuses without just cause to comply with an order of court to testify or provide other information may be held in civil contempt.  Patison maintained that his refusal to attend a judgment debtor examination was justified as the order providing notice of the examination pursuant to California C. Civ. Proc. Sec. 708.110(d) was not personally delivered to him.  However, the USCA found this meritless.  A judgment in bankruptcy court is enforced by reference to Fed. R. Civ. Proc. 69 which provides that proceedings supplementary to and in aid of a judgment shall be in accordance with he practice and procedure of the state in which the district court is held.  The California Enforcement of Judgments Act specifically provides that notice of a judgment debtor examination shall be by personal service pursuant to California C. Civ. Proc. Sec. 415.10, the statute applicable to personal service of a summons and complaint.  Where a California requirement for service specifically governs the procedure for the enforcement of money judgments, the California law providing for the manner of service is applicable and is not preempted by federal procedural law.  In this case, the bankruptcy court's order affirmed by the District Court provided for personal service pursuant to California C. Civ. Proc. Sec. 708.110, or alternatively, service by mail.  This order was in error to the extent that it allowed mail service as Sec. 708.110 specifically provides that service of the notice shall be by personal delivery.  Because the District Court's order affirming the bankruptcy court's contempt order and the district court's order for body detention and arrest of Patison were based on invalid service of notice of debtor examination, Patison was justified in refusing to attend and testify at his judgment debtor examination.  The USCA thus ruled that the District Court abused its discretion in holding Patison in contempt.

6)  BANKRUPTCY: In re Williams, 99-17440 (9th Cir. May 24, 2001) (unpublished).  Beezer, O'Scannlain, and W. Fletcher, Circuit Judges.
        During his Chapter 7 bankruptcy, Williams sought discharge of his student loans under 11 USC Sec. 523(a)(8)(B).  That provision required the bankruptcy court to determine whether Williams would be subject to "undue hardship" were he required to repay the loans.  The bankruptcy court held that repayment of the loans would impose and undue hardship on him, but the District Court for the Eastern District of California, Judge Coyle presiding, reversed.
       The USCA affirmed.  It independently reviewed the bankruptcy court's decision without deference to the District Court's decision.  In re Pena, 155 F.3d 1108 (9th Cir. 1998), adopted the three-pronged test for "undue hardship" set out in In re Brunner, 831 F.2d 395 (2nd Cir. 1987).  A debtor must satisfy all three prongs to show "undue hardship."  Here, the USCA agreed with the District Court that Williams failed the first prong.  Under it, Williams had to show that he could not maintain, based on current income and expenses, a "minimal" standard of living for himself and his dependents if forced to repay the loans.  That requires more than a showing of tight finances.  In defining "undue hardship," courts require more than temporary financial adversity but typically stop short of utter hopelessness.  The proper inquiry is whether it would be "unconscionable" to require the debtor to take steps to earn more income or reduce his expenses.  The bankruptcy court below clearly erred in finding that Williams satisfied the first prong by concluding that he could not maintain a "minimal" standard of living if compelled to repay his student loans.  Williams works only ten months out of twelve, yet he testified in 1997 that if his student loans were discharged, he would not work during the summer because he would not need the money.  In addition, he lives alone in a two-bedroom apartment; while he testified that he had unsuccessfully sought a roommate, there was no evidence that he was unable to find a less expensive one-bedroom apartment.  Requiring Williams to work during the summer and to find a less expensive apartment would not be unconscionable, and would allow him to make payments on his student loans.  The bankruptcy court failed to make any factual findings regarding the other two prongs of the Brunner test.  The District Court, however, made findings of fact regarding both prongs, concluding that Williams satisfied neither.  To meet the standard of the second prong, a debtor must show that his circumstances are "unique" or "exceptional."  The District Court found that there were no factual findings that indicate "unique" or "exceptional" circumstances here.  Although Williams suffered an injury during college, he is able to work.  He clearly has usable job skills;  he has a job as a teacher.  There is no evidence to support a finding that he meets prong two.  The USCA agreed with the District Court.  Although Williams had trouble finding a steady job between 1993 and the fall of 1995, he has held a steady job since then, and there is no indication that he will not be able to maintain his current employment status.  As for the third prong, the District Court noted that Williams' failure to make any payment on his loan between signing the promissory note and filing for bankruptcy.  Moreover, his only payment on the debt were made pursuant to the bankruptcy court's interim order.  That is, Williams made no voluntary payments on the debt at any time.  He thus failed to show any good faith effort to repay the loan.  The District Court thus did not err in finding that he failed to meet the third prong.

7)  BANKRUPTCY: In re Sun Cho, 99-17395 (9th Cir. May 15, 2001) (unpublished).  O'Scannlain and W. Fletcher, Circuit Judges, and Kelleher, District Judge.
      Stewart, an unsecured creditor of debtor Sun Cho, appealed the BAP's affirmance of the bankruptcy court's dismissal of his action alleging various state law claims against Cho and the law firm that represented the bankruptcy trustee. 
         The USCA vacated and remanded with instructions to the BAP to remand to the bankruptcy court to dismiss for lack of jurisdiction.  Steward first maintained that removal of his state court action to the bankruptcy court was improper.  The USCA disagree.  Section 28 USC Sec. 1452(a) permits removal of state court actions which fall within the district court's bankruptcy jurisdiction as provided by 28 USC Sec. 1334.  Section 1334 grants district court jurisdiction over civil proceedings "arising under" the Bankruptcy Code—i.e., "core" bankruptcy proceedings, which include matters concerning the administration of the estate, proceedings to deter-mine, avoid, or recover fraudulent conveyances, and objections to discharges.  The Circuit has held that "post-petition state law claims asserted by or against a trustee in bankruptcy or the trustee's agents for conduct arising out of the sale of property belonging to the estate qualify as core proceedings."  Mainland v. Mitchell (In re Harris Pine Mills), 44 F.3d 1431 (9th Cir. 1995).  Steward's action clearly constituted a core bankruptcy proceeding under Harris Pine Mills, as he sought to hold the law firm liable for conduct "inextricably intertwined" with the administration of Cho's estate.  The fact that Cho's bankruptcy estate had been closed at the time Stewart filed his state complaint was immaterial.  Bankruptcy Code Sec. 350 provides that a closed bankruptcy case may be reopened to administer assets, to accord relief to the debtor, or for other cause.  Given that Stewart's state court action challenged conduct inextricably intertwined with the administration of Cho's estate, the bankruptcy court's order pursuant to Sec. 350 was entirely proper.  Moreover, the fact that the appellees' initial notice of removal was filed before the bankruptcy court granted the appellees' ex parte motion to re-open the case was likewise of no moment.  Even if the appellees' initial notice of removal was premature because the bankruptcy court had not yet reopened the case pursuant to Sec. 350, the appellees filed an amended notice of removal five days after the bankruptcy court re-opened the case.  Removal of Stewart's state case to bankruptcy court was thus proper.
           Stewart next argued that the bankruptcy court erred in dismissing his action against the law firm on res judicata grounds and that the bankruptcy judge was biased against him and should have recused herself from the case.  Because it concluded that Stewart's action must be dismissed for lack of standing, the USCA did not address these issues.  An individual creditor generally does not have standing to pursue claims belonging to the bankruptcy estate as a whole, because the individual creditor is only injured indirectly as a result of injury to the estate itself.  Only the bankruptcy trustee has standing to pursue such claims.  Stewart's complaint clearly states claims properly belonging to the estate.  The law firm's alleged negligence harmed Stewart only indirectly as an unsecured creditor of Cho's estate by purportedly diminishing the assets available for the estate's creditors.  Thus, the proper party-in-interest to bring an action against the law firm is the bankruptcy trustee, not Stewart.  As a narrow exception to this rule, the Circuit has recognized that a creditor has standing to litigate a claim belonging to the estate where the trustee authorizes the creditor's action, with the bankruptcy court's approval, and the creditor stipulates that the suit is brought on behalf of the estate.  In re Parmetex, Inc., 199 F.3rd 1029 (9th Cir. 1999).  In limited circumstances, a creditor may move the bankruptcy court to pursue litigation on behalf of the estate even in the ab-sence of the trustee's approval.  Here, however, Stewart did not seek, and did not receive, permission from the bankruptcy court to litigate the claims against the law firm on behalf of the estate.  Hence, he lacked standing.  Stewart conceded that he did not have standing to pursue an action against the law firm during the initial bankruptcy proceedings;  and he failed to explain how he might have standing to litigate his claims against the law firm now.  Indeed, in light of the bankruptcy court's order reopening the bankruptcy case, Stewart is in exactly the same position now as he was during the original course of bankruptcy proceedings.

8)  BANKRUPTCY: In re Nordstrom, 99-55843 (9th Cir. May 7, 2001) (unpublished).  B. Fletcher, O'Scannlain, and Gould, Circuit Judges.
         Nordstrom owned and operated two related entities, International Insurance Underwriters ("IIU") and International Insurance Underwriters of Washington ("IIUW").  IIU was a licensed insurance broker in California.  IIUW was the managing general agent of several alien insurance companies not admitted in California but nevertheless selling automobile insurance in the state.  Weule was injured in an auto accident in California.  The driver of the other automobile, Moscoso, had purchased an insurance policy from Kingham Atlantic National Insurance Company ("KAN"), a company incorporated in the British Virgin Islands.  KAN sold insurance in Cali-fornia through IIUW, its managing general agent.  Weule sued Moscoso in California state court for negligence, and obtained a default judgment of $45,000.  In trying to recover the judgment from Moscoso and his insurance carrier, Weule discovered that KAN was in-solvent.  Weule filed a state court complaint against Nordstrom, IIU, and IIUW, alleging that Nordstrom had intentionally engaged in a fraudulent scheme to sell underfunded insurance policies in violation of California law.  Several years later, but during the continued pendency of the state case, Nordstrom filed for bankruptcy protection under Chapter 7.  In response, Weule severed him from the state court action.  A default judgment was subsequently entered in state court in favor of Weule against IIU and IIUW.  The state court found that these companies had violated the California Insurance Code by fraudulently marketing insurance policies from undercapitalized, non-admitted insurance companies.  The state court found that IIU and IIUW were liable to Weule for $32,500 in compensatory damages, $85,000 in attorneys' fees, and interest and costs.  The state court also found IIU and IIUW liable for $500,000 in punitive damages.  Weule then filed this adversary proceeding against Nordstrom in bankruptcy court, alleging that his state court judgment was not dischargeable pursuant to Secs. 523(a)(2)(A), (a)(4), and (a)(6).  Upon Nordstrom's motion, the bankruptcy court dismissed Weule's claims under Secs. 523(a)(2)(A) and (a)(4) for failure to state a claim upon which relief could be granted.  A bench trail was held to resolve the (a)(6) claim.  At about the same time, the US Attorney brought criminal proceedings against Nordstrom for conspiracy to defraud.  After the bench trial, the bankruptcy court dismissed Weule's remaining claim for non-dischargeability under Sec. 532(a)(6), and a few days later, Nordstrom pled guilty to the criminal charges.  In light of this development, Weule made a motion to the bankruptcy court for reconsideration that was denied.  Weule appealed the decision of the bankruptcy court to the BAP, which affirmed.
         The USCA reversed and remanded.  Should the bankruptcy court decides that Nordstrom was an alter ego, Weule's state court judgment should be found to be a non-dischargeable debt under Sec. 523(a)(6).  First, Weule argued that three decision by various California courts should have been given preclusive, collateral effect in the bankruptcy court.  Under California law, applied be-cause the previous rulings occurred in state court, a "party is collaterally estopped from relitigating an issue previously adjudicated if:  (1) the issue necessarily decided in the previous suit is identical to the issue sought to be relitigated;  (2) there was a final judgment on the merits of the previous suit;  and (3) the party against whom the estoppel is asserted was a party, or in privity with a party, to the previous suit."  In re Russell, 76 F.3d at 244-45.  The USCA agreed with the BAP and the bankruptcy court that the April 9, 1997 judg-ment in Weule's state civil suit has no collateral estoppel effect on his adversary proceeding against Nordstrom because Nordstrom was no longer a defendant in the litigation when the judgment was issued.  Weule had "severed" him from the case earlier in 1997.  Likewise, the state court's earlier order granting Weule's motion for summary adjudication does not preclude the bankruptcy court's independent consideration of any issue.  Although Nordstrom was still a party to the suit when this order was issued, the USCA could not give collateral estoppel effect to this interlocutory order as there was no final judgment on the merits against Nordstrom.  Second, from February 26, 1993 to July 9, 1993, the California Department of Insurance ("CDI") investigated Nordstrom and his companies and ultimately sued in state court to enjoin him from further violating various provisions of the California Insurance Code.  Nordstrom, in turn, filed a lawsuit, on behalf of himself and his companies, seeking an injunction to block Cease and Desist orders that had been lodged against him by the CDI.  This exchange of litigation culminated in the state court's order granting the CDI's application for a preliminary injunction.  Following this defeat, Nordstrom capitulated and the parties agreed to a stipulated Permanent Injunction and Judgment.  Weule claims that this judgment should have had a preclusive effect on the proceedings in bankruptcy court.  However, the USCA noted that the stipulation explicitly stated that Nordstrom and IIUW denied any wrongdoing and denied specifically the allega-tions of the CDI in the then pending Cease and Desist, Accusation and Suspension proceedings before the CDI as well as the proceed-ings in these consolidated Cases.  This stipulation, signed by both parties and entered into the record by the court, belied any argu-ment that the issues of intent or liability were "necessarily litigated."  The USCA thus ruled that this judgment has no preclusive effect.  Third, Weule suggested that Nordstrom's guilty plea should have a collateral estoppel effect on this litigation.  The USCA disagreed.  The California Supreme Court has held that a guilty plea is not given collateral estoppel effect.  This is because a guilty plea, unlike a criminal conviction after trial, "may reflect only a compromise or a belief that paying a fine is more advantageous than litigation."  The USCA thus affirmed the bankruptcy court's decision not to give the guilty plea preclusive effect.  Fourth, the USCA affirmed the BAP's decision to affirm the bankruptcy court's dismissal of Weule's claims of non-discharge-
ability under Secs. 523(a)(2)(A) and (a)(4).  Weule failed to allege in his complaint facts to support either of these claims.  Weule cannot allege that Nordstrom made a representation to him, which is a requirement of subsection (a)(2)(A).  Nor can Weule support such a claim based on Nordstrom's representations to Moscoso, the holder of the insurance policy.  The USCA found that it did not need to decide whether California law is so broad that a claim of fraud can exist under it absent a direct representation, because (a)(2)(A) is a matter of federal law.  Nor has Weule alleged a claim for non-dischargeability under subsection (a)(4) because it only applies to claims "for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny."  11 USC Sec. 523(a)(4).  Under bankruptcy law, an express or technical trust must create the fiduciary relationship.  Weule cannot show such a close fiduciary relationship between himself and Nordstrom.
        Fifth, the bankruptcy court's decision to exclude income tax returns produced by Nordstrom was an abuse of discretion, and the BAP erred in affirming the exclusion.  Weule attempted to introduce two sets of income tax returns at trial.  The first set was ob-tained by Weule during discovery directly from Price Waterhouse, Nordstrom's accounting firm but not a party to the lawsuit.  As Weule had not designated a Price Waterhouse witnesses to authenticate these exhibits, the bankruptcy court excluded them.  The USCA found that this was not an abuse of discretion.  The second set of income tax returns consisted of personal income tax returns for Nordstrom and his wife and S-Corporation income tax returns for IIU and IIUW, covering the years 1990 to 1995 ("Nordstrom re-turns").  These returns had been handed over by defense counsel during an examination of Nordstrom conducted pursuant to Fed. R. Bankruptcy Proc. 2004.  Nordstrom argued that even though he produced these returns, a Price Waterhouse representative had to authenticate them because Price Waterhouse prepared them.  The USCA disagreed.  Because Weule met his burden of producing evidence sufficient to support a finding that the tax forms were what the proponent claims, Fed. R. Evid. 901(a), the Nordstrom returns were properly authenticated.  All that Weule had to do was present sufficient evidence to prove a prima facie case.  Prior to the Rule 2004 examination, Weule requested that Nordstrom bring copies of these tax forms to the examination.  Nordstrom's counsel was present at the Rule 2004 examination, and said as he handed over the returns, "What Mr. Nordstrom has obtained are the tax returns for he [sic] and his wife from '91 to '95, … from '90 to '95 for International Insurance Underwriters, Inc., d/b/a Specialty Insurance Brokers, … and federal tax returns from [the years '90 - '95] for International Insurance Underwriters of Washington, Inc."  During the examination, Nordstrom responded to requests by Weule's counsel to turn his attention to "IIU's return," or "your return."  Nordstrom had obtained these documents from his storage room, turned them over in response to Weule's request for tax returns, and then represented them as "tax returns."  This suggests that they are what they appear to be.  Moreover, the Nordstroms are designated on most, if not all, of the corporations' tax returns as "Tax Matters Persons."  Under the tax laws as they existed at the time, this designation meant that the Nordstroms owned the corporation duties to represent it in all tax matters before the IRS, to identify discrepancies in the tax returns, and to initiate appeals to the IRS, and possessed a right to intervene in any tax action involving the corporation.  The BAP and bankruptcy court treated the Price Waterhouse returns and the Nordstrom returns to be part of a single set of unauthenticated evidence.  This was an error.  Although the Price Waterhouse returns were unauthenticated, Weule met his burden of showing that the Nordstrom returns were what he alleged them to be.  Nor are the Nordstrom returns inadmissible hearsay.  By proffering them at the Rule 2004 examination, and by verifying the truth of some of the information found in the tax forms, Nordstrom "manifested an adoption or belief in [the] truth" of the information contained in the returns. Fed. R. Evid. 801(d)(2)(B) (adoptive admissions by a party are not hearsay).
       Weule's remaining non-dischargeability claim fell under Sec. 523(a)(6).  Debts are not dischargeable in bankruptcy if they were obtained "for willful and malicious injury by the debtor to another entity or to the property of another entity."  11 USC Sec. 523(a)(6).  Both the bankruptcy court and the BAP held that any proof that IIU or IIUW intended to harm Weule was not attributable to Nordstrom.  According to both courts, Weule had presented insufficient evidence to allow them to disregard the corporate form.  A lower court's application of the alter ego doctrine is reviewed for clear error. Applying the law of the forum state in determining whether a corporation is an alter ego of the shareholder, the USCA noted that under California law, alter ego liability will be found when (1) there is such a unity of interest and ownership between the corporation and the controlling individual that their separate personalities no longer exist and (2) the facts are such that inequity will result otherwise.  The bankruptcy court emphasized that Weule did not introduce evidence that Nordstrom neglected corporate formalities or commingled his personal funds with corporate money.  The lower courts erred by excluding copies of the corporations' tax returns.  These documents show that large sums of money were "loaned" each year from IIU and IIUW to Nordstrom and would probably have been probative of an alter ego relationship.  For example, the tax forms show that IIU loaned Nordstrom $660,000 in 1995.  The tax returns suggest that the bankruptcy court should have pierced the corporate veil.  However, the record was not adequately developed to allow the USCA to rule definitively.  It is difficult to determine to what extent Nordstrom neglected the corporate form or commingled assets based on this partial presentation.  The USCA thus remanded to the BAP to remand to the bankruptcy court to decide whether IIU and IIUW were alter egos of Nordstrom.

9)  INSURANCE LAW: Sawyer v. Standard Insurance Company, 99-17488 (9th Cir. May 7, 2001) (unpublished).  Beezer, O'Scannlain, and W. Fletcher, Circuit Judges.
       The District Court for Arizona, Judge Sedwick presiding, entered summary judgment for General Life Insurance Company in Sawyer's action for recovery of disability benefits.  The District Court ruled that Sawyer's disability plan was covered by ERISA and that his state law causes of action were thus preempted.  It then held that Sawyer's ERISA claim should be dismissed as his policy de-nied him benefits for disabilities due to a condition manifested before the issuance of the policy, and because Sawyer had failed to pro-duce evidence to establish the date of first manifestation of his chronic fatigue syndrome or fibromyalgia.  However, in reaching this decision, the District Court appears to have conducted a proceeding that improperly included features of an Arizona contract law action that are inconsistent with an ERISA action.  The USCA thus vacated the judgment and remanded for a proceeding that comports with ERISA.  Because General Life, in its administrative processing of Sawyer's claim, did not treat this as a claim for benefits under ERISA, the task of the District Court on remand was not simply to review General Life's denial of benefits on the present record.  Rather, as a prelude to its review of any action by General Life, it should direct General Life to treat Sawyer's claim as an ERISA claim, compile an appropriate administrative record, and provide to Sawyer a "full and fair review" of his claim under ERISA.  If, after treating Sawyer's claim appropriately, General Life grants the benefits Sawyer seeks, the case will be at an end.  If, on the other hand, General Life denies the benefits, the District Court will be in a position to review the administrative record compiled by General Life in a bench trial in ac-cordance with ERISA.  The USCA noted that because Sawyer's claim was treated in the District Court as a kind of state law / ERISA law hybrid, General Life appears to have been allowed discovery that would not have been available in an ERISA action.  It is possible that General Life thereby obtained otherwise unavailable information unfavorable to Sawyer.  The USCA found itself unable to determine on the record the actual detriment to Sawyer, if any, that has resulted from discovery in the District Court.  It was also not in a position to determine what protective order, if any, the District Court should enter to put Sawyer in a position as close as possible to the one he would have occupied if he had been treated as an ERISA claimant from the outset.  Because the District Court on remand will be sensitive to the problem, it will be in a position to enter whatever protective order or orders may be appropriate under the circumstances.

10)  INSURANCE LAW: Snell v. American Home Insurance Company, 00-35165 (9th Cir. May 15, 2001) (unpublished).  Goodwin, Greenberg, and Rawlinson, Circuit Judges.
           The District Court for Oregon, Judge Aiken presiding, entered summary judgment for American Home Assurance Company.  Snell appealed.  The USCA affirmed.  While on a business trip, Snell was injured in an accident which left him quadriplegic.  He was insured as an employee under an American Home accidental death and dismemberment insurance policy, which provided 24-hour accident protection while an individual is on a business trip.  The policy provided coverage for loss of life, feet, hands, and/or sight and stated that with respect to hands and feet the term "loss" meant actual severance through or above wrist or ankle joints.  Snell submitted a claim to American Home.  It was denied because coverage for quadriplegia did not exist under the policy and Snell had not suffered actual severance of a body part as required for dismemberment benefits.  Snell maintained that American Home wrongfully denied him dismemberment benefits by failing to construe the insurance policy in his favor.  Reviewing the summary judgment and denial of benefits de novo, the USCA said it was persuaded by the reasoning of the Oregon Supreme Court in Sitzman v. John Hancock Mut. Life Ins. Co., 522 P.2d 872 (Or. 1974), which concluded that a dismemberment policy clause providing for coverage for loss of hands and feet, did not provide coverage for an insured who lost the use of both feet due to a severed spinal cord.  Sitzman held that the policy language unambiguously required severance of the body part.  Snell's argument that the policy language was ambiguous and could be construed to cover his injuries failed.  The provisions clearly defines the term "loss" with regard to hands and feet to mean "actual severance."  It is not a reasonable construction of the language to interpret such loss as severance of another body part, which results in an inability to use one's hands or feet.  Severance of Snell's spinal cord thus did not constitute an "actual severance" loss of his hands or feet.  The USCA thus concluded that Snell's injuries, while tragic, were not covered by the accidental death and dismemberment insurance policy.

11)  INSURANCE LAW: Security Life Insurance Company of America v. Duncanson & Holt, Inc., 99-56811 (9th Cir. May 23, 2001) (unpublished).  Magill, McKeown, and Fisher, Circuit Judges.
        The District Court for the Central District of California, Judge Hupp presiding, imposed sanctions for the failure of  Trans-america Occidental Life Insurance Company to comply with a subpoena for documents and testimony of a corporate witness.  The USCA affirmed.  A district court's civil contempt order is reviewed for abuse of discretion, as is a decision to impose sanctions or pun-ishment for contempt.  Transamerica argued that the District Court abused its discretion because it held Transamerica in contempt for refusing to comply with an erroneous order and invalid subpoena.  However, the USCA noted that it cannot review the legal or factual basis of the underlying subpoena, or the arbitration or discovery process.  Given the timing and substance of Transamerica's purported objections lodged via letter, the USCA concluded that the District Court did not abuse its discretion in determining that Transamerica was not relieved or its obligation to comply with the subpoena.  Fed. R. Civ. P. 45(c)(2)(B) and (e), and 30(b)(6) do not allow a corporate entity to avoid compliance with a subpoena by announcing—after it has refused to appear, and the deposition date has passed—that the employee it had designated for the deposition is outside the territorial limits of the subpoena.  Transamerica also maintained that the district court held it in contempt without due process of law because the contempt order was issued without the benefit of a full trial under Fed. R. Civ. P. 43(a).  Without an issue of material fact, the District Court was required only to give notice and allow an opportu-nity for the parties to be heard.  Because the District Court provided adequate notice and hearing, no due process violation occurred.

12)  INSURANCE LAW: Ferrellgas, Inc. v. Hartford Accident & Indemnity Co., (9th Cir. May 21, 2001) (unpublished).  Magill, McKeown, and Fisher, Circuit Judges.
       The District Court for the Central District of California, Judge Timlin presiding, entered a summary judgment, holding that the primary insurance policy and its endorsements (collectively the "Policy") issued to Penn Central Corporation and its subsidiaries obligated Hartford Accident & Indemnity Company to pay $2 million in excess of the deductible.
         The USCA reversed and remanded.  An insurance policy is a contract and interpreted in accordance with the rules of construction applicable to contracts.  The rules governing policy interpretation required the USCA to look first to the language of the contract in order to ascertain its plain meaning or the meaning a lay-person would ordinarily attach to it.  If the language is ambiguous, the USCA may then consider extrinsic evidence to clarify the parties' intentions.  The USCA concluded that the Policy's language is unambiguous and agreed with Hartford's interpretation of how the deductible and Policy limits work.  Although the Policy may not be typical "fronting policy" in all respects, it has at least one similar feature:  the deductible, at times, matches the policy limits.  The Policy sets per occurrence and aggregate limits of liability at $2 million.  It also explicitly provides that the per occurrence limit is "subject to the deductible" set forth in Endorsement #3.  Until the insured pays out an annual total of $5 million in deductibles, the per occurrence de-ductible matches the liability limits at $2 million.  After that point, the deductible reduces to $250,000.  The USCA read the "subject to" language in the context of the entire Policy to mean that the deductible is deducted from the liability limits; the deductible is not a "self-insured retention."  The appellees pointed to language in Endorsement #3 they contend supports their position that Hartford's liability is triggered only after the deductible was paid.  That language states only that Hartford has no obligation on damages within the deductible.  It says nothing about whether the policy limits apply above the deductible or are subsumed within it.  The USCA read that language, together with the rest of the Policy, to mean that Hartford is obligated to pay damages only above the deductible and below the $2 million policy limit.  The USCA noted that even if it were to find the Policy's deductible and liability limit language ambiguous, the extrinsic evidence supports the conclusion that the deductible was intended to be subtracted from the liability limits.  The District court thus incorrectly construed the Policy to provide $2 million in coverage above and beyond the $2 million deductible.  The USCA vacated the final judgment and all orders that were premised on the District Court's erroneous interpretation of the Policy.  As Hartford was not obligated under the primary policy, the appeals of the denial of the leave to amend the complaint and the orders regarding pre-judgment interest were moot.  The USCA remanded for further proceedings consistent with its disposition.

13)  INSURANCE LAW: Rollins v. Prudential Insurance Company of North America, 99-56834 (9th Cir. May 18, 2001) (unpublished).  Boochever and Silverman, Circuit Judges, and George, District Judge.
         The District Court for the Central District of California, Judge Letts presiding, denied Rollins' motion to vacate an arbitration award issued in favor of defendants Prudential Insurance Company of North America and Prudential Insurance and Financial Services (collectively "Prudential").
           The USCA affirmed.  As an initial matter, Prudential argued that Rollins failed to file a timely notice of appeal and, thus, that the USCA lacked appellate jurisdiction.  The USCA disagreed.  The District Court did not enter a separate judgment as required by Fed. R. Civ. Proc. 58.  When there is no entry of a separate judgment, the time for appeal never begins to run and the appeal cannot be un-timely.  However, the absence of a separate judgment does not stand as an obstacle to the USCA's exercise of jurisdiction.  The USCA thus concluded that it has jurisdiction over Rollins' appeal.  On the merits, Rollins argued that the District Court erred in denying her motion to vacate the arbitration award.  Courts are highly deferential to arbitrators' decision and will nor set them aside unless they evidence a manifest disregard for the law.  Rollins maintained that vacatur was justified because the arbitrators "so imperfectly" executed their powers "that a mutual, final, and definite award upon the subject matter submitted was not made."  Specifically, she argued that the arbitrators filed to make a ruling with respect to her claim under the Family Medical Leave Act.  ("FMLA")  She based that argument on an ambiguity in the arbitration award.  The "Award" section of this document states, "All Claimant's claims are denied in their entirely."  Rollins argued that, although the "Award" section explicitly denied all her claims, the "Case Summary" section did not list her FMLA claim and, thus, the arbitrators did not in fact reach the merits of this claim.  To warrant a vacatur of the award on this basis Employers Ins. of Wausau v. Nat. Union Fire Ins. Co. of Pittsburgh, 933 F.2d 1481 (9th Cir. 1991), requires that Rollins at least show that the ambiguity in the award is "substantial."  While the award on its face may be ambiguous, the context in which it was issued makes clear that the arbitrators considered and rejected Rollins' FMLA claim.  Rollins raised the FMLA claim in her initial filing before the arbitration panel.  Both parties addressed the same in their arbitration beliefs.  The arbitrators permitted both parties to introduce expert testimony on the FMLA claim.  In fact, Rollins emphasizes that neither party presented expert testimony on any other matter besides the FMLA claim.  Rollins specifically addressed this claim during her closing argument.  Neither party suggested that the FMLA claim should not be submitted for arbitration.  Considering these facts, combined with the clear statement that "All Claimant's claims are denied in their entirety" and that "the undersigned arbitrators have decided in full and final resolution of the issues submitted for determination," it seems clear that the arbitrators considered and denied all of Rollins claims, including her FMLA claim.  The USCA thus concluded that the arbitrators' failure to list the FMLA claim specifically in the "Case Summary" did not create a substantial ambiguity concerning the disposition of submitted claims and, thus, did not justify vacating the arbitration award.  Finally, Rollins maintained that the District Court subsequent order denying her motion to confirm the award nullified the order denying her motion to vacate the award.  Because the District Court refused to confirm the award, Rollins argued that she was entitled to a jury trial on all her claims.  However, the USCA found this argument meritless. It is plain, it said, that Rollins' motion to confirm was denied as redundant and moot in light of the previ-ous order denying her motion to vacate.

14)  PROPERTY:  Home Haven, Inc. v. USA, 99-17322 (9th Cir. May 31, 2001) (unpublished).  Beezer, O'Scannlain, and W. Fletcher, Circuit Judges.
         Home Haven brought this wrongful levy action arguing that it was entitled to be equitably subrogated to the rights of the former senior lienholder in the property.  The District Court for Nevada, Judge Reed presiding, disagreed and granted summary judgment to the government holding that equitable subrogation does not apply where the party has actual notice of a preexisting subordinate encumbrance.  The USCA affirmed.  Equitable subrogation is a state-law doctrine.  Whether it applies here turns on Nevada law.  How-ever, as there is limited Nevada authority on equitable subrogation, the USCA looked to the law of California for guidance.  Han v. USA, 944 F.2d 526 (9th Cir. 1991), noted that under California law "equitable subrogation is denied to a party who has 'actual' knowledge of an existing encumbrance."  Because it is undisputed that Home Haven had actual notice of the federal tax lien, Home Haven is barred from use of the doctrine of equitable subrogation.

15)  PRODUCTS LIABILITY: Whipple v. Pharmacia & Upjohn Co., 99-16973 (9th Cir. May 8, 2001) (unpublished).  Schroeder, D.W. Nelson, and Rawlinson, Circuit Judges.
        The District Court for the Northern District of California, Judge Patel presiding, dismissed Whipple's products liability action against Pharmacia & Upjohn Company for failure to make timely service under Fed. R. Civ. P. 4(m).
         The USCA affirmed on the grounds that Whipple failed to show good cause for her failure to serve process within the 120-day period required by Rule 4.  Nor did she provide any basis for a discretionary extension of that period.  She maintained that she failed to serve process within the 120-day period because she was awaiting a ruling by the U.S. District Court for the Eastern District of Texas on her motion to intervene in a similar suit against Pharmacia & Upjohn pending before the Texas court.  However, the USCA agreed with the District Court below that "filing what amounts to a holding action in one court while litigating a similar action in another court is not good cause" for failing to timely serve process.  Whipple also suggested an additional good cause for an extension because the running of the statute of limitations foreclosed her from filing a new complaint.  However, the USCA noted that this argument was not raised in the District Court and was thus waived.  Finally, Whipple argued that the District Court abused its discretion by dismissing the action after having granted two extensions of the service period, once under a local rule requiring service within 45 days of the fi-ing of the complaint and once under Rule 4(m).  However, the USCA noted that the District Court granted each extension subject to the express condition that defendant could later assert Rule 4 objections.  There was thus no abuse of discretion.

16)  CONTRACTS: Miron v. Herbalife International, Inc., 99-17647 (9th Cir. May 24, 2001) (unpublished).  Noonan and Silverman, Circuit Judges, and Lasnik, District Judge.
        Herbalife, a publicly traded corporation, develops and distributes nutritional, weight loss, and personal care products through a global network of independent distributors.  The Mirons entered into a distributorship agreement with Herbalife in July 1992.  There-after they developed an extensive distribution network in several countries, earning recognition as one of the most successful distributors within the Herbalife system.  In November 1996, Herbalife reassigned one of the Mirons' recruits and his downline distributors from the Mirons' distribution network to that of another Herbalife distributor.  The Mirons filed a complaint against Herbalife on December 16, 1998, alleging claims for breach of contract and breach of the implied covenant of good faith and fair dealing, common law fraud and negligent misrepresentation, breach of fiduciary duty, violation of federal and state securities law, violations of Secs. 17200 and 17500 of the California Business and Professions Code, and interference with prospective economic advantage.  The Mirons filed First and Second Amended Complaints.  Ultimately, the District Court for the Northern District of California, Judge Jenkins presiding, dismissed with prejudice all of their claims for failure to state a claim.
        The USCA affirmed.  First, the Mirons waived appeal of their claims for federal and state securities fraud, breach of fiduciary duty, and interference with prospective economic advantage because they failed to raise those claims in their opening brief.  Second, the Mirons claimed that Herbalife breach the parties' distribution contract when it reassigned one of their recruits and his downline distributors and refused to pay royalties and bonuses on those reassigned distributors.  However, none of the documents they attached to their pleadings bore their name.  Even if those documents represented the terms of the contract they entered into with Herbalife, the documents contain policies and rules that distributors are obligated to abide by, not Herbalife.  Moreover, even if the policies and rules attached to the pleadings were construed as obligations owned by Herbalife, such policies and rules do not prohibit Herbalife from reassigning downline distributors, or address Herbalife's responsibility regarding payment of royalties.  The district court's dismissal of the Mirons' breach of contract claim was thus proper because the Mirons failed to allege any provision of the contract which supports their claim.  Third, the Mirons asserted that Herbalife breached the implied covenant of good faith and fair dealing when it reassigned the downline distributors.  However, a party cannot be held liable on a bad faith claim for dong what is expressly permitted in an agreement or what is within the parties' reasonable expectations.  Under the terms of the contract alleged by the Mirons, Herbalife reserves the right to enforce the Rules of Conduct, including the right to revoke the Mirons' distributorship altogether.  The Mirons cannot claim that they did not reasonably expect that Herbalife reserved rights under the contract to unilaterally take action against distributors.  The District Court thus properly dismissed the Mirons' claim for breach of the implied covenant of good faith and fair dealing.  Fourth, in their First Amended Complaint, the Mirons claimed that Herbalife's distributorship is a "pyramid scheme" which is inherently fraudulent under Webster v. Omnitrition International, Inc., 79 F.3d 776 (9th Cir. 1996).  In addition, the Mirons claimed that Herbalife intentionally and negligently misrepresented the potential for the Mirons to "profit from their own goals, desires and personal effort."  Fed-eral and state law dictate that claims for fraud must be pled with particularity.  To allege fraud with particularity, a plaintiff must set forth what is false or misleading about a statement, and why it is false.  Moreover, to state a viable claim for misrepresentation, a plaintiff must show that the defendant did not intend to perform the promises at the time they were made.  The Mirons maintained that "the true facts were that the Herbalife marketing plan was nothing more than a sophisticated pyramid scheme" which caused "an inherent end to Plaintiffs' stream of income."  But the Mirons failed to explain why Herbalife's system was a "pyramid scheme," or why it was inherently fraudulent.  The Mirons' conclusory statement regarding Herbalife's multi-level marketing business were insufficient to satisfy the requirement for particularity in pleading fraud claims under federal and state law.  The Mirons also alleged that Herbalife made false statements in distributorship contracts and marketing materials, including representations regarding amassing great wealth and significantly profiting from goals.  However, the Mirons failed to explain why the statements complained of were false or misleading.  To the contrary, the Mirons made admissions in their pleadings which substantially supported the truth of the representations by Herbalife.  Moreover, the Mirons failed to provide any facts in support of their claim that statements by Herbalife were false at the time they were made, or that Herbalife did not intend to perform the promises at the time they were made.  The District Court's dismissal of the Mirons' fraud and misrepresentation claims was thus proper.  Fifth, the Mirons appealed the District Court's dismissal of their claim that Herbalife violated California Business and Professions Code Secs. 17200 and 17500 because Herbalife's business structure was an inherently fraudulent pyramid scheme, and because the company reassigned the Mirons' downline distributors.  The Mirons' conclusory allegations about the existence of a pyramid scheme were not enough to support a claim for illegal business practices under either Sec. 172 (unfair business practices) or Sec. 17500 (false advertising).  The Mirons failed to explain why the statements attributed to Herbalife were false or deceptive.  To the extent the Mirons complained that Herbalife's reassignment of their distributors violated the unfair competition laws, they failed to assert how reassignment was deceptive or misleading, particularly in light of Herbalife's contractual rights to enforce rules against distributors.  The District Court thus properly dismissed the Mirons' claims under Secs. 17200 and 17500.

17)  WARTIME INTERNMENT: Shima v. Ashcroft, 00-56670 (9th Cir. May 2, 2001) (unpublished).  Pregerson, Fernandez, and Graber, Circuit Judges.
        Koshio Shima, a Peruvian native, sought damages under the Federal Torts Claim Act for his transport from Peru and subse-quent internment in Texas by the United States during the 1940s.  He filed his complaint in the district court in 1998, more than 50 years after the end of World War II and his release from internment.  After transfer to the Court of Federal Claims, and retransfer to the District Court for the Central District of California, Judge Letts dismissed the case.    The USCA affirmed.  Shima appealed on the ground that his claims were not barred by the governing two-year statute of limitations under the continuing violations doctrine.  Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982) ("A systemic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.").  Shima maintained that because the United States government pursued a policy of discrimination against Latin American persons of Japanese descent from 1942 through 1998, the accrual of his claim extended through 1998.  However, he failed to allege examples of discrimination by the United States occurring within the two-year period before he filed his complaint.  The continuing violations doctrine was thus inapplicable.