2)  TAXATION: Orme v. USA, 00-35122 (9th Cir. Oct. 18, 2001).  The forfeiture of a land sales contract is a sale of property subject to the federal notice requirements of 26 USC Sec. 7425(b) and (c)(4) regarding the sale of property on which the United States claims a federal tax lien.  Boochever, Tashima (author), and Tallman, Circuit Judges.  D. Stufft of Kalispell, MT, for the plaintiff;  J. Nolet of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  TAXATION: Shotgun Delivery, Inc. v. USA, 00-15495 (9th Cir. Oct. 16, 2001).  A mileage reimbursement system that was not designed to reimburse delivery drivers for their actual or reasonably expected mileage expenses, but, rather, the primary purpose of which was to treat the least amount possible of the drivers' commission as taxable wages, did not qualify as a tax-exempt "accountable plan," within the meaning of Treasury Regulation Sec. 1.62-2; the contested payments thus should have been treated as wages, not as job-related cost reimbursements.  Sneed, Wardlaw, and Berzon (author), Circuit Judges.  D. Perez of Beverly Hills, CA, for the plaintiff;  R. Hutter of Washington, DC, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  TAXATION: Bob Wondries Motors, Inc. v. CIR, 00-70530 (9th Cir. Oct. 23, 2001).  The taxpayers are automobile dealerships that deferred part of their prepaid services income from sales of extended warranty agreements;  they questioned whether they were also required to amortize related insurance expenses from the date of inception of the insurance policies insuring their obligations under the warranty agreements rather than from the first day of the year in which the policy was acquired, as the CIR determined and the Tax Court upheld;  the taxpayers also challenged the Tax Court's refusal on the ground of waiver to consider their argument that income from the sale of the extended warranty agreements should not have been included in income;  the USCA agreed with the Tax Court on both issues and affirmed.  Brunetti, Rymer (author), and Wardlaw, Circuit Judges.  A. Salkin of Beverly Hills, CA, for the petitioners-appellants;  F. Cihlar of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  ENVIRONMENTAL LAW: Sierra Club v. Whitman, 00-16895 (9th Cir. Oct. 2, 2001).  An EPA Administrator's finding of a violation of the Clean Water Act and enforcement action is discretionary and not subject to judicial review;  concurring, Judge Gould thought that the question of whether the language of the statute created a non-discretionary duty for the Administrator need not have been addressed as the Sierra Club had made no allegation that the Administrator made a finding of any kind of violation listed in 33 USC Sec. 1319(a)(3).  Canby (author), Hawkins, and Gould (concurring), Circuit Judges.  V. Kornylak of Tucson, AZ, for the plaintiffs;  E. Durkee of Washington, DC, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

6)  ENVIRONMENTAL LAW: USA v. Elias, 00-30145 (9th Cir. Oct. 23, 2001).  In a case controlled by Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir. 1996), the United States retained both its criminal and civil enforcement powers under the Resource Conservation and Recovery Act where the U.S. Environmental Protection Agency had authorizes a state to manage a hazardous waste program under the Act.  Wallace, Hall, and T.G. Nelson (author), Circuit Judges.  S. Schumacher of Seattle, WA, for the defendant-appellant;  L. Schiffer of Washington, DC, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 7)  ENVIRONMENTAL LAW: Carson Harbor Village, Ltd. v. Unocal Corporation, 98-55056 (9th Cir. Oct. 24, 2001).  Following a rehearing en banc, the USCA held that the gradual passive migration of contamination through soil is not a "disposal" under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), where the contamination cannot accurately be described as a discharge, deposit, injection, dumping, spilling, leaking, or placing of a hazardous substance on the affected properly;  dissenting in part, Judge Fletcher, joined by Judges Pregerson and Paez, thought that in holding that passive migration of hazardous waste through soil in this case cannot constitute "disposal" under CERCLA frustrates the Act's two central purposes: first, to encourage prompt, voluntary private action to remedy environmental hazards, and second to ensure that those responsible for the hazards pay their fair share of cleanup costs.  Schroeder, Hug, B. Fletcher (dissenting in part), Pregerson (dissenting in part), Kozinski, T.G. Nelson, Hawkins, McKeown (author), Paez (dissenting in part), Berzon, and Tallman, Circuit Judges.  F. Gooch of Santa Monica, CA, for the plaintiff;  R. Jacobs of San Francisco, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  ENVIRONMENTAL LAW / INSURANCE: Fireman's Fund Insurance Co. v. City of Lodi, 99-15614 (9th Cir. Oct. 30, 2001).  The district court erred in abstaining from reaching Fireman's Fund's state law preemption claim;  on the merits of state and federal preemption claims bought by Fireman's Fund and Unigard Insurance Company, the USCA held that the federal Comprehensive Environmental Response, Compensation and Liability Act and California's Carpenter-Presley-
Tanner Hazardous Substance Account Act do not preempt the field of hazardous waste remediation, either explicitly or by implication;  the local ordinance herein at issue, the Comprehensive Municipal Environmental Response and Liability Ordinance, which permits the City of Lodi to investigate and remediate the hazardous waste contamination of its soil and groundwater, is not preempted by the state law doctrine of preemption by duplication.  Pregerson (author) and D.W. Nelson, Circuit Judges, and Moskowitz, District Judge.  T. Houlihan and D. Zarazoga of San Francisco, CA, for the plaintiffs-appellants;  M. Donovan of Lafayette, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  INSURANCE LAW: Indiana Lumbermens Mutual Insurance Company v. West Oregon Wood Products, Inc., 00-35621 (9th Cir. Oct. 5, 2001).  Under Oregon law, when a commercial liability policy excludes coverage for bodily injury and property damage caused by the emission of pollutants, an exception for hostile fires did not bring the allegations in the complaint back within the scope of the coverage provided by the policy;  the insurer was not obligated to defend the insured against a pollution-based claim when the third party claimant amended the complaint to seek injunctive relief from hostile fires.  Thompson, Tashima, and Graber (author), Circuit Judges.  W. Drew of Portland, OR, for the defendant-appellant;  L. Lear of Portland, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  FEDERAL TORT CLAIMS ACT:  Vander v. U.S. Dept. of Justice, 99-56234 (9th Cir. Oct. 9, 2001).  When a prisoner is injured on a prison work detail, he cannot bring an action against the United States under the Federal Tort Claims Act for that injury or for negligence by United States agents regarding the treatment of that injury;  such FTCA actions are barred by 18 USC Sec. 4126(c).  Fernandez (author), Kleinfeld, and McKeown, Circuit Judges.  M. Jackson of Pasadena, CA, for the plaintiff-appellant;  AUSA P. Sholl of San Diego, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY:  In re Schmitz, 00-35075 (9th Cir. Oct. 16, 2001).  Where a fisherman filed for bankruptcy a year-and-a-half before the Secretary of Commerce promulgated regulations creating post-filing fishing quota rights based on a fisherman's pre-filing catch history, the USCA held that these quota rights were not property of the bankruptcy estate as (1) the regulations did not exist at the time the debtor filed his petition, and (2) although the quota rights were calculated on the basis of the debtor's pre-filing fishing history, they governed his post-filing rights to fish.  Schroeder, T.G. Nelson, and Silverman (author), Circuit Judges.  R. Crowther of Anchorage, AK, for the appellant;  W. Argus of Anchorage, AK for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  BANKRUPTCY: In re Southern Pacific Funding Corp., 00-35019 (9th Cir. Oct. 15, 2001).  The enforcement of subordination provisions in an indenture agreement that preserved certain secured creditors' payment rights, both pre- and post-bankruptcy, did not alter the rights or obligations of the debtor in violation of 11 USC Sec. 365(e)(1)'s requirement that an executory contract or unexpired lease of the debtor may not be terminated or modified at any time after the bankruptcy commences, solely because a provision in such contract or lease is conditioned on the insolvency of the debtor.  Thompson, Tashima (author), and Graber, Circuit Judges.  D. Criswell of Portland, OR, for the appellant;  G. Johnson of Portland, OR, and E. Fox of New York, NY, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  ERISA PREEMPTION OF STATE LAW:  Dishman v. UNUM Life Ins. Co. of America, 99-55963 (9th Cir. Oct. 17, 2001).  ERISA did not preempt a state law claim for tortious invasion of privacy by investigative firms hired by a long-term disability benefit provider;  although there was clearly some relationship between the conduct alleged and the administration of the plan, it was not enough of a relationship to warrant preemption.  Beezer, T.G. Nelson (author), and Berzon, Circuit Judges.  L. Green of Los Angeles, CA, for the appellants;  T. Shardlow of Pasadena, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  LABOR LAW: Foster v. Mahdesian, 00-15028 (9th Cir. Oct. 15, 2001).  Where a public sector employer deducts agency or "fair share" fees from a non-union employee's paycheck, and where the local union has failed to provide the employee with the financial disclosure required by Chicago Teachers Union Local No. 1 v. Hudson, 475 US 292 (1996), the employer does not have a duty to ensure that every employee has received proper notice.  Hug and T.G. Nelson, Circuit Judges, and D. Pregerson (author), District Judge.  S. Berzon of San Francisco, CA, for the defendants-appellants;  M. Chappell of Springfield, Virginia, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  LABOR LAW: Richardson v. Sunset Science Park Credit, 00-35342 (9th Cir. Oct. 5, 2001).  An employer could not avoid a statutory minimum penalty of $200 under Oregon Revised Statute 652.615 for unlawfully deducting $68.83 from an employee's final paycheck on the theory that the illegal deduction was offset by an unrelated overpayment;  because the employer's unrelated payment was not intended to satisfy any penalty obligation, but rather was intended (albeit erroneously) to satisfy its obligation to compensate the employee for "flexible time off" hours, the employer was not entitled to offset any amount of overpayment against its obligation to pay a penalty for its violation of ORS 652.615.  Thompson, Tashima, and Graber (author), Circuit Judges.  J. Koch of Portland, OR, for the plaintiff-appellant;  K. Saul of Portland, OR, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  LABOR LAW:  Casumpang v. Intl. Longshoremen's and Warehousemen's Union, Local 142, 99-16674 (9th Cir. Oct. 23, 2001).  Title IV of the Labor Management Reporting and Disclosure Act ("LMRDA"), which governs union elections and vests exclusive jurisdiction in the Secretary of Labor, does not deprive a district court of subject matter jurisdiction over a union business agent's claim for a violation of his free speech rights under Title I of LMRDA, where the relief sought does not interfere with the union's post-election operation;  contrary to the district court's conclusion, the business agent did not directly challenge the validity of an election;  he sought a declaration that his Title I rights as a union member had been violated and a restoration of his privileges as a member in good standing, as well as an award of compensatory and punitive damages;  under these circumstances, Title IV does not bar an election-related tort claim filed pursuant to Title I.  Alarcon (author), Kozinski, and Hawkins, Circuit Judges.  S. Luis of Honolulu, HI, for the plaintiff-appellant;  H. Takahashi of Honolulu, HI, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  LABOR LAW: Gilliland v. E.J. Bartells Co., 00-70585 (9th Cir. Oct. 16, 2001).  When a claimant receives a tort recovery from a third-party defendant for which an employer or carrier owing benefits under the Longshore and Harbor Workers' Compensation Act. is entitled to an offset under 33 USC Sec. 933(f) and the award includes periodic payments, then the employer may take a "dollar-for-dollar" credit for each payment at the time the claimant receives it, whether or not the employer elects to fund those periodic payments by purchasing an annuity.  Thompson, Tashima, and Graber (author), Circuit Judges.  M. Flynn of Portland, OR, for the petitioner;  D. VavRosky of Portland, OR, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  LABOR LAW / ERISA: Schikore v. BankAmerica Supplemental Retirement Plan, 99-16952 (9th Cir. Oct. 16, 2001).  On an issue of first impression, the USCA held that the common law mailbox rule, that the proper and timely mailing of a document raises a rebuttable presumption that the document has been received by the addressee in the usual time, is consistent with the purpose of ERISA and applies to ERISA plans; here, the application of the rule was not contrary to the Plan's requirement of "actual receipt." when receipt is a factual issue in dispute in evaluating claims for retirement benefits;  dissenting, Judge Tashima thought that the majority's opinion negates the Plan's requirement that the document be "received" in order to be effective and imposes on the Plan Administrator the majority's own contrary interpretation of the receipt requirement.  Reinhardt (author), Tashima (dissenting), and Berzon, Circuit Judges.  M. Farley of San Rafael, CA, for the defendant-appellant;  P. Simpson of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  EMPLOYMENT DISCRIMINATION / JURY INSTRUCTIONS:  Costa v. Desert Palace, Inc., 99-15645 (9th Cir. Oct. 2, 2001).  A "mixed motive" jury instruction considering plaintiff's claim of discriminatory working conditions and wrongful discharge is reversible error in the absence of substantial evidence of conduct or statements by an employer directly reflecting discriminatory animus.  Kozinski and Kleinfeld, Circuit Judges, and Schwarzer (author), District Judge.  M. Ricciardi of Las Vegas, NV, for the defendant;  R. Peccole of Las Vegas, NV, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  EMPLOYMENT DISCRIMINATION: Swinton v. Potomac Corp., 99-36147 (9th Cir. Oct. 24, 2001).  The introduction of evidence of an employer's post-occurrence remedial conduct undertaken in response to its discovery of workplace discrimination as a means to mitigate punitive damages is subject to the discretion of the district court and subject to limitation if in the court's opinion that evidence is irrelevant or prejudicial.  McKeown (author), W. Fletcher, and Rawlinson, Circuit Judges.  T. Sullivan of Chicago, IL, for the defendant-appellant;  J. Needle of Seattle, WA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  ADMIRALTY: Rodriquez v. Bowhead Transportation Co., 00-35280 (9th Cir. Oct. 26, 2001).  The language of a contract between a stevedoring company and a time charterer of a ship, which provides that the stevedoring company load cargo onto a barge in accordance with the charterer's specifications, instructions, and directions, did not create a duty in the charterer to supervise stevedore's loading operation.  Kozinski and Gould (author), Circuit Judges, and Schwarzer, District Judge.  D. Teske of Edmonds, WA, for the plaintiff-appellant;  T. Johnson of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  AMERICANS WITH DISABILITIES ACT:  Long v. Coast Resorts, Inc., 99-16468 (9th Cir. Oct. 3, 2001).  Under Accessibility Guideline 9.4 of the Americans with Disabilities Act, the term "sleeping unit" used in connection with a hotel implies the entirety of the individual hotel guest unit—bedroom, bathroom, and other private spaces occupied exclusively by a guest;  the magistrate below incorrectly declined to enter an injunction ordering that the hotel's bathroom doors be brought into compliance with Guideline 9.2; the magistrate correctly concluded that placing six of the hotel's nine pool cabanas on an accessible route was reasonable and complied with the ADA;  the plaintiffs did not have standing to challenge any non-compliance in the employee area of the slot change kiosks;  where the parties agreed that two of the four slot change kiosks did not comply with Guideline 7.2(2), the magistrate incorrectly concluded that the hotel was nonetheless not in violation because Guideline 7.2(2) solely requires accessibility at the "main" counter;  a merchant cannot circumvent the Guideline by declaring one counter to be the "main" counter.  Kozinski, Hawkins (author), and Berzon, Circuit Judges.  R. Armknecht of Salt Lake City, UT, for the plaintiffs;  B. Lieberman of Las Vegas, NV, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  WARSAW CONVENTION IMMUNITY: Dazo v. Global Airport Security Services, 00-15058 (9th Cir. Oct. 11, 2001).  An airport security company functioned as an "airlines' agent" and was thus sheltered by the Warsaw Convention's limits on liability for carry-on baggage stolen during a required security check;  dissenting, Judge Tashima thought that the Warsaw Convention was inapplicable because the defendants services were not in furtherance of the contract of carriage of an international flight, but were basic airport security services required at all airports by U.S. law, regardless of the flights' destination.  O'Scannlain (author), Tashima (dissenting), and Thomas, Circuit Judges.  C. Ashworth of San Jose, CA, for the plaintiff;  T. Gmelich of Glendale, CA, and B. Cohen of San Francisco, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  ANTI-INJUNCTION ACT: California v. Randtron, 99-17572 (9th Cir. Oct. 2, 2001).  The Anti-Injunction Act does not bar a district court from issuing a declaratory judgment precluding the California Superior Court from considering a litigant's res judicata defense.  Schroeder, D.W. Nelson, and Rawlinson (author), Circuit Judges.  K. McGovern of Washington, DC, for the defendant-appellant;  R. Hays of San Francisco, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  CIVIL PROCEDURE / DAMAGES: Humetrix, Inc. v. Gemplus S.C.A., 99-56068 (9th Cir. Oct. 4, 2001).  The doctrine of judicial estoppel barred defendant Gemplus, after arguing at trial that it was not a party to an agency agreement, to reverse its position on appeal because it was dissatisfied with the jury's verdict;  the district court properly determined that plaintiff Humetrix was not barred from recovering lost profits merely because it invoked equitable estoppel;  Gemplus had conflated promissory estoppel and equitable estoppel;  that Humetrix used equitable estoppel to defeat Gemplus's statute of frauds defense had no bearing on the damages Humetrix could recover;  the kind of damages a party may recover is determined by the kind of claim it brings and by the evidence it adduces;  Humetrix's claims against Gemplus were for breach of contract;  that was the theory under which Humetrix brought suit, and the theory under which the jury found Gemplus liable and awarded $15 million in damages to Humetrix;  Humetrix thus could recover damages appropriate to a breach of contract claim;  the district court did not abuse its discretion by entering the jury's verdict on damages as the proper judgment;  the jury's finding that Humetrix could have earned $15 million in net profits over the ensuring five years did not shock the conscience or suggest passion, prejudice, or corruption.  Kozinski and Tallman (author), Circuit Judges, and Fogel, District Judge.  P. Davis of Oakland, CA, for the defendants-appellants;  S. Wolff of Chicago, IL, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  CIVIL PROCEDURE: D.A.R.E. America v. Rolling Stone Magazine, 00-55939 (9th Cir. Oct. 24, 2001).  An issue raised on appeal is not cognizable when the appellant fails to argue how resolution of the issue in the appellant's favor would have affected the outcome below, particularly when a host of other issues are presented for review.  Brunetti, Rymer (author), and Wardlaw, Circuit Judges.  L. Miller of Los Angeles, CA, for the plaintiffs-appellants;  E. McNamara of New York, NY, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  YOUNGER ABSTENTION: USA v. Morros, 00-17330 (9th Cir. Oct. 15, 2001).  The district court improperly abstained from deciding whether the Nevada State Engineer's denials of the United States' water permit applications were preempted by federal law;  the United Stages alleged in its complaint that the federal Nuclear Waste Policy Act preempted Nevada Revised Statute 459.910;  because this federal preemption claim was not insubstantial, it conferred federal question jurisdiction; in addition, the substantiality of the United States' claim, coupled with the absence of the requirements for the various forms of abstention, made abstaining improper;  dissenting, Judge Hug noted that the majority concluded that Younger abstention was inappropriate because that doctrine aims to avoid federal-state conflict and such conflict has been "raging for over ten years" in this case;  Judge Hug thought that this broad characterization of Younger overlooked the heart of the doctrine and that the circumstances here fell squarely under the concerns warranting such abstention.  Hug (dissenting) and T.G. Nelson (author), Circuit Judges, and Shadur, District Judge.  J. Cruden of Washington, DC, for the plaintiff;  F. Del Papa of Reno, NV, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  CHOICE OF LAWS:  Orion Tire v. Goodyear Tire & Rubber Co., 99-56639 (9th Cir. Oct. 18, 2001).  Where a federal statute is involved in an action brought by a foreign claimant, a choice of law analysis does not apply in the first instance;  rather, the initial question is whether Congress intended the statute to apply to conduct occurring outside the United States;  here the district court erred in dismissing the RICO claim of plaintiff China Tire Holdings with prejudice, without making the appropriate statutory inquiry.  Beezer, T.G. Nelson, and Berzon (author), Circuit Judges.  R. Zuckerman of Washington, DC, for the plaintiffs;  C. Gilman of New York, NY, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  EVIDENCE: Nadell v. Las Vegas Metropolitan Police Dept., 99-16383 (9th Cir. Oct. 5, 2001).  The district court properly played its "gatekeeping role" under Daubert v. Merrell Dow Pharms., 509 US 579 (1993), and did not abuse its discretion in excluding expert testimony about a quantitative electroencephalogram ("QEEG") upon a finding that the QEEG is error prone, inadequately subjected to peer review, and unhelpful to the jury because it cannot distinguish between previous injuries and injuries a plaintiff seeks to prove in an excessive force claim.  Politz, Kozinski, and O'Scannlain (author), Circuit Judges.  B. Nadell pro se;  B. Whitaker of Las Vegas, NV, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  NATIVE AMERICAN LAW: Moore v. Nelson, 00-15754 (9th Cir. Oct. 26, 2001).  The imposition of a fine alone by a tribal court as a penalty for cutting timber on reservation land without a permit, does not satisfy the "detention" requirement of the habeas corpus provision of the Indian Civil Rights Act.  Canby (author), Hawkins, and Gould, Circuit Judges.  R. Clanton of Arcata, CA, for the plaintiff-appellant;  K. McGaw of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  NATIVE AMERICAN LAW: Shoshone-Bannock Tribes v.  HHS Secretary, 98-36022 (9th Cir. Oct. 16, 2001).  Under the Indian Self-Determination and Education Assistance Act, when a tribe requests funds from the government for "contract support costs" relating to a contract to take over the administration and provision of services of a previously government-administered program, there is no obligation on the government to fund contract support costs beyond the appropriations made available by the government for that purpose.  Kozinski and Kleinfeld (author), Circuit Judges, and Schwarzer, District Judge.  J. Lee of Washington, DC, for the appellants;  L. Miller of Anchorage, AK, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  IMMIGRATION: USA v. Maria-Gonzales, 00-10534 (9th Cir. Oct. 10, 2001).  The Illegal Immigration Reform and Immigrant Responsibility Act's definition of "aggravated felony" applies to alien reentry violations occurring after the Act's effective date for purposes of enhancement under 8 USC Sec. 1326(b)(2).  Schroeder, Lay, and Thompson (author), Circuit Judges.  AFPD M. Powell of Reno, NV, for the appellant; AUSA R. Rachow of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  IMMIGRATION: Al-Saher v. INS, 99-71308 (9th Cir. Oct. 23, 2001). An Iraqi citizen who had been arrested and interrogated, and subjected to sustained beatings for a month by Iraqi officials for misrepresenting his religion as Sunni Muslim when, in fact, he was Shiite Muslim and then later again arrested and subjected to beatings and cigarette burns for several days because he had asked a question about where he was to build a fence for his employer, and then later arrested a third time after he was heard talking about how the Iraqi elite eat well while the poor go hungry, was entitled to withholding of removal under the Convention Against Torture as it was likely the torture would resume upon his return to Iraq.  Hug (author) and B. Fletcher, Circuit Judges, and King, District Judge.  J. Artz of Pasadena, CA, for the petitioner;  T. Vanderstar of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  IMMIGRATION: USA v. Echavarria-Escobar, 00-10570 (9th Cir. Oct. 18, 2001).  A one-year sentence imposed on an alien for an aggravated felony satisfied the sentencing enhancement requirements of Guidelines Sec. 2L1.2(b) for reentry after a removal following an earlier conviction for an aggravated felony, although the sentence on the earlier offense had been suspended.  Hall, Wardlaw (author), and Berzon, Circuit Judges. AUSA R. Rachow of Reno, NV, for the plaintiff;  M. Powell of Reno, NV, for the de-fendant.(Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  IMMIGRATION: Otarola v. INS, 99-71405 (9th Cir. Oct. 18, 2001).  Allowing the INS to appeal a correct procedural application of the law prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, so as to use the delay to avail itself of the "stop-time" rule set forth in IIRIRA Sec. 309(c)(5) in determining whether the petitioner satisfied the seven-year residency requirement for suspension of deportation, undermined the clear Congressional intent setting the effective date of the new law as April 11, 1997;  dissenting, Judge Graber thought that the petition should have been denied because both the IJ and the BIA applied the version of the stop-time rule extant at the time they heard the case—which was Congress' intent.  Hug (author), Graber (dissenting), and W. Fletcher, Circuit Judges.  A. Lopez of Glendale, CA, for the petitioner;  K. Larson of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  IMMIGRATION: USA v. Ramirez-Garcia, 00-10346 (9th Cir. Oct. 16, 2001).  The existence of a prior felony conviction, in this case for rape, is a sentencing factor relevant to and properly considered in calculating the offense level under the Guidelines for an alien who illegally reenters the United States.  Hill (author), Graber, and McKeown, Circuit Judges.  A. Baggot of Apache Junction, AZ, for the defendant; AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  IMMIGRATION: Finau v. INS, 00-70238 (9th Cir. Oct. 31, 2001)  Because "removable" lawful permanent residents are not similarly situated with "inadmissible" aliens seeking entry or adjustment of status, 8 USC Sec. 1182(h) which provides discretionary relief to inadmissible aliens, but not also to removable lawful permanent residents, does not violate the Equal Protection Clause.  Canby, Hawkins (author), and Gould, Circuit Judges.  D. Capeci of San Francisco, CA, for the petitioner; A. Tabaddor of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  SOCIAL SECURITY: Reed v. Massanari, 99-16066 (9th Cir. Oct. 30, 2001)  An Administrative Law Judge's ad hoc, across-the-board disqualification of state-recruited consultative medical examiners exceeds the ALJ's authority in the Social Security disability determination process;  the overall caliber of the medical professionals used by state agencies is not a matter placed before the ALJ for decision.  Kozinski, Hawkins, and Berzon (author), Circuit Judges.  M. Caldwell of Phoenix, AZ, for the plaintiff-appellant; P. Okin of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  IMMUNITY: Martinez v. City of Oxnard, 00-56520 (9th Cir. Oct. 30, 2001).  Under the extreme circumstances of this case, a police officer who conducted a coercive, custodial interrogation of a suspect who is being treated for life-threatening, police-inflicted gunshot wounds may not invoke qualified immunity in a civil suit for damages under 42 USC Sec. 1983 (2001).  Wardlaw, Paez, and Tallman (author), Circuit Judges.  A. Wisotsky of Oxnard, CA, for the defendant-appellant;  R. Paz of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

40)  FOURTH AMENDMENT / EXCESS FORCE:  Jackson v. City of Bremerton, 99-36159 (9th Cir. Oct. 5, 2001).  The use of a chemical irritant by a police officer was not excessive force in violation of the Fourth Amendment where it was sprayed following a warning on the hair of a plaintiff who attempted to interfere with the arrest of her adult son on an outstanding robbery warrant, and the irritant was washed out of the plaintiff's eyes and ears within minutes after it began to drip into them while she was placed in a police car with rolled-up windows.  Tashima and Tallman (author), Circuit Judges, and Mollway, District Judge.  T. Greene of Puyallup, WA, for the plaintiff-appellant;  S. Reich of Bremerton, WA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  FIFTH AMENDMENT: USA v. Velarde-Gomez, 99-50602 (9th Cir. Oct. 23, 2001).  A customs agent's testimony regarding the defendant's lack of response when confronted with the discovery of illegal drugs in his gas tank is testimony about the defendant's silence that, if admitted, violates the defendant's Fifth Amendment rights;  dissenting in part, Judge Gould, joined by Judges Fernandez and Silverman, thought that evidence of the defendant's demeanor, elicited in response to the question "what did he do?" differs from evidence of the defendant's silence, elicited in response to the question "what did he say?"  The former, Judge Gould thought, does not relate to a communicative response and does not violate the defendant's Fifth Amendment rights.  Schroeder, Hug, Pregerson, Kozinski, Fernandez (dissenting in part), Kleinfeld, Silverman (dissenting in part), Wardlaw (author), W. Fletcher, Gould (dissenting in part), and Paez, Circuit Judges.  J. Burghardt of San Diego, CA, for the defendant-appellant;  AUSA P. O'Toole of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  FOURTH AMENDMENT: USA v. Summers, 00-30083 (9th Cir. Oct. 12, 2001).  An interaction between a police officer and a suspect is voluntary for purposes of the Fourth Amendment when the officer approaches the suspect without activating his lights or siren, the suspect's car is parked and only partially blocked by the police car, the suspect immediately walks toward the police car, nothing prevents the suspect from leaving the scene on foot, the officer asks for the paper work on the car as a way to identify the suspect, as he did not have other identification, and, out of concern for his own safety, illuminates the interior of the car with his flashlight where he sees a gun as the suspect is retrieving the paperwork. Noonan, Tashima, and Tallman (author), Circuit Judges.  K. Sharaga of Seattle, WA, for the defendant-appellant;  AUSA J. Chou of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  SEARCH & SEIZURE: USA v. Chavez-Valenzuela, 00-50075 (9th Cir. Oct. 15, 2001).  While the initial traffic stop was reasonable and did not violate the driver's constitutional rights, his nervousness during that stop—even if extreme such an uncontrollable shaking—in the absence of other objective factors, was insufficient to support a reasonable suspicion of criminal activity, to ask about drugs, or to search the vehicle, or otherwise prolong the driver's detention after the officer satisfied the purpose of the stop;  the officer's question about drugs violated the driver's Fourth Amendment rights and the taint of that violation overrode his subsequent voluntary consent to the search of his vehicle in which drugs were found.  Tashima and Fisher (author), Circuit Judges, and Zilly, District Judge.  M. Garey of Santa Ana, CA, for the defendant-appellant;  AUSA J. Forge of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  RIGHT TO COUNSEL:  Phillips v. Woodford, 98-99022 (9th Cir. Oct. 15, 2001).  A federal habeas petitioner asserted a colorable ineffective assistance of counsel claim where his state trial court counsel unreasonably accepted his implausible alibi defense rather than investigate the matter and offer an alternate defense, even though counsel was acting in compliance with the petitioner's own version of the events;  there existed a reasonable probability that the petitioner would not have been convicted of the ultimate offense that rendered him eligible for the death penalty if counsel had investigated and presented the alternate defense;  dissenting, Judge Kleinfeld thought the majority made three major errors:  (1) it granted an evidentiary hearing on a claim not developed in state court, despite the reversal in Keeney v. Tamayo-Reyes, 504 US 1 (1992), of a similar error;  (2) it treated counsel's alibi defense, made at his client's insistence and despite counsel's recommendation against it, as ineffective assistance, despite the decision to the contrary in Bean v. California, 163 F.3d 1073 (9th Cir. 1998);  and (3) it treated the petitioner's supposed ineffective assistance and perjury claims as cumulatively prejudicial based on a hypothetical trial that never occurred, instead of evaluating materiality of perjury and prejudice based on the trial that actually took place.  B. Fletcher, Reinhardt (author), and Kleinfeld (dissenting), Circuit Judges.  R. Phillips pro se;  R. Marshall of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  PRE-MIRANDA STATEMENT: USA v. Bushyhead, 00-10396 (9th Cir. Oct. 30, 2001).  A defendant's post-arrest, pre-Miranda statement that "I have nothing to say, I'm going to get the death penalty anyway," constituted an invocation of his right to silence, the admission of which at trial violated of his Fifth Amendment rights.  Politz, W. Fletcher (author), and Fisher, Circuit Judges.  M. Kennedy of Reno, NV, for the defendant-appellant;  AUSA R. Rachow of USCA for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  BANK FRAUD: USA v. Ali, 00-10216 (9th Cir. Oct. 2, 2001).  Convictions for bank fraud and making a false statement to obtain a bank loan require that the government prove beyond a reasonable doubt that the affected institution was federally insured at the time of the offense.  O'Scannlain, Tashima (author), and Thomas, Circuit Judges.  AUSA J. Lyons of San Francisco, CA, for the plaintiff-appellee;  C. Cannon of San Francisco, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  SENTENCING / RESTITUTION:  USA v. Follet, 00-30339 (9th Cir. Oct. 18, 2001).  Mandatory restitution imposed under Title 18 for crimes involving the sexual abuse of a minor is limited to the costs of services the victim is obligation to pay for.  Lay, Trott, and Berzon (author), Circuit Judges.  J. Rhodes of Missoula, MT, for the defendant-appellant;  AUSA K. Richter of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  SENTENCING: USA v. Highsmith, 00-30182 (9th Cir. Oct. 23, 2001).  A defendant's access to a gun, which was in a bedroom from which the defendant dealt drugs, was insufficient to establish constructive possession for the purpose of applying the two-level sentencing enhancement under the Guidelines Sec. 2D1.1(b)(1) for being in constructive possession of a firearm during the commis-sion of an offense;  the evidence did not establish that the defendant knew of the gun.  J. Browning, Wallace, and T.G. Nelson (author), Circuit Judges.  W. D'Alton of Billings, MT, for the defendant-appellant;  AUSA J. Seykora of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  SENTENCING: USA v. Olabanji, 00-50228 (9th Cir. Oct. 4, 2001).  In sentencing a defendant for a violation of probation or supervised release, a sentencing court that rejects the sentencing range suggested by the Sentencing Commission's policy statements must consider the sentencing guidelines for the underlying offense as part of the calculus for imposing an appropriate term of incarceration.  Beezer, T.G. Nelson (author), and Berzon, Circuit Judges.  M. Evans of Torrance, CA, for the defendant-appellant;  AUSA M. Raphael of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  HABEAS CORPUS: Sistrunk v. Armenakis, 99-36000 (9th Cir. Oct. 16, 2001).  A habeas petitioner failed to present evidence of actual innocence sufficient to avoid the procedural barriers to raising an issue that would otherwise be procedurally barred;  his new evidence of actual innocence was that an expert testified falsely against him in his rape trial and was biased in favor of the prosecution, and that, contrary to the victim's testimony, the petitioner's penis was not "bumpy."  This evidence was insufficient to avoid the procedural barriers to raising an issue that would otherwise be procedurally barred, as the victim's account was plausible, internally consistent, and well corroborated;  dissenting, Judge Kozinski thought there was a miscarriage of justice, and that the petitioner should have been allowed to proceed because the witness's testimony was the whole of the government's case against him, and the expert who vouched for that testimony had lied.  Kozinski (dissenting) and Kleinfeld (author), Circuit Judges, and Schwarzer, District Judge.  AFPD D. Balske of Portland, OR, for the appellant;  D. Fjordbeck of Salem, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  HABEAS CORPUS: Gunderson v.  Hood, 00-36102 (9th Cir. Oct. 23, 2001).  Bureau of Prisons Program Statement 5162.04, which clarifies 28 CFR Sec. 550.58, which specifies that prisoners convicted of carrying "explosives" are ineligible for a sentence-reduction benefit, did no more than "clarify or explain existing law," and is thus "interpretive" in nature and not subject to the rigors of the Administrative Procedure Act.  Wallace, Hall, and T.G. Nelson (author), Circuit Judges.  AFPD S. Sady of Portland, OR, for the appellant;  AUSA K. Bauman of Portland, OR, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  HABEAS CORPUS: James v. Pliler, 98-56751 (9th Cir. Oct. 29, 2001).  Where a district court is presented with a petition for habeas review by a pro se petitioner that includes exhausted and unexhausted claims, the court advise the petitioner of his right to strike unexhausted claims and proceed with only those that have been exhausted, rather than suffering dismissal of the entire petition without prejudice.  Canby (author) and W. Fletcher, Circuit Judges, and Sedwick, District Judge.  V. Wefald of Pasadena, CA, for the petitioner;  D. Wilson of Los Angeles, CA, for the respondents (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  CAPITAL PUNISHMENT / JUDICIAL IMPAIRMENT:  Summerlin v. Stewart, 98-99002 (9th Cir. Oct. 12, 2001).  A pre-Antiterrorism and Effective Death Penalty Act habeas petitioner's specific and uncontroverted factual allegations of his trial judge's admission to marijuana addiction and felony conviction of a marijuana crime constituted a colorable "reason to believe" that the petitioner may have been deprived of his constitutional right to a competent tribunal;  this showing entitled him both to funds to investigate the matter and to an evidentiary hearing in order to develop the connection, if any, between the judge's chronic use of illegal drugs, his alleged addiction, and his performance during this case as a judge;  dissenting in part, Judge Kozinski thought that unless there is a substantial showing that a judge acted improperly while presiding in a particular case, the court of appeals should not provide incentive for parties to go digging into a judge's private life looking for proof of mental impairment;  here there was no proof whatever that the judge's purported marijuana addiction affected his performance in the petitioner's case;  dissenting in part, Judge Thomas thought that the petitioner's counsel was constitutionally ineffective during the penalty phase of this death penalty case for failing to investigate and develop potentially mitigating evidence and for failing to present that what little mitigating evidence he had assembled.  Kozinski (dissenting in part), Trott (author), and Thomas (dissenting in part), Circuit Judges.  FPD K. Murray of Phoenix, AZ, for the petitioner-appellant;  J. Todd of Phoenix, AZ, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  TRADE DRESS INFRINGEMENT:Carter v. Engineered Products Co., 00-15735 (9th Cir. Oct. 4, 2001) (unpublished).  Politz, W. Fletcher, and Fisher, Circuit Judges.
           In the late 1980s, Carter Electric Corporation and E. Ray Carter (collectively, "Carter") designed and began producing what it called a "Rocket Perma-Post," a polyvinyl chloride plastic post that supports outdoor lighting fixtures.  In 1989, Carter obtained a utility patent for its Rocket Perma-Post.  Meanwhile, Engineered Products Company ("EPCO") started producing its own version of the Perma-Post, but copied most of the remaining elements with only minor variations.  EPCO sold its posts under its own name and for resale under the names of other producers.  It did not pay any licensing fees to Carter.  On April 4, 1996, Carter filed a complaint in the District Court for Arizona alleging trade dress infringement under the Lanham Act.  District Judge McNamee denied EPCO's motion for summary judgment and Carter's requests for a jury trial.  However, on the eve of trial the Court of Appeals granted Carter's petition for mandamus and ordered that the trial proceed by jury.  During the jury trial, Judge McNamee granted EPCO's motion for judgment as a matter of law on the issue of willful infringement.  On May 21, 1999, the jury found EPCO liable for trade dress infringement of the Perma-Post, and determined actual damages in the amount of $207,797.  After entry of judgment, EPCO brought a renewed motion for judgment as a matter of law, and Carter filed a motion to amend the judgment to include additional relief.  The district court denied both motions, as well as Carter's motion to reconsider.
         The USCA reversed, holding that the District Court erred in denying EPCO's motion for judgment as a matter of law.  Upon concluding that Carter failed to prove that the design of its Perma-Post was non-functional, the USCA could not sustain a finding that EPCO was liable for trade dress infringement.  Because of its holding on the trade dress issue, the USCA found no need to reach the other issues in the case.

2)  COPYRIGHT INFRINGEMENT: Friends & Lovers, Inc. v. Lions Gate Films, 00-55190 (9th Cir. Oct. 25, 2001) (unpublished).  Hall, Michel, and Trott, Circuit Judges.
         Friends & Lovers, Inc. ("F&L") appealed from the dismissal of its copyright infringement claim under Federal Rule of Civil Procedure 12(b)(6) and the dismissal of its pendant state law claims by the District Court for the Central District of California, Judge Paez, District Judge presiding.  At issue was whether F&L's termination of a "Short Form Distribution Agreement" terminated Lions Gate's license and resulted in a return to F&L of the rights to the film in question.
         The USCA affirmed.  Absent an express reversion clause in the authorizing instrument, if a grantee under an assignment or exclusive license breaches a covenant of the authorizing instrument, such breach "will give rise to a reversion of rights to the grantor only if such breach is so material as to create a right of rescission in the grantor."  3 M. Nimmer & D. Nimmer, Nimmer on Copyright, Sec. 10.15[A] (2000). "Upon such rescission, the assignment or license is terminated and the copyright proprietor may hold his former grantee liable as an infringer for subsequent use of the work.  Failing such rescission, by contrast, the grant continues in place, thus precluding infringement liability until such time as the copyright owner exercises its entitlement to rescind."  Id.  Under California Civil Code Sec. 1691, rescission is only available if the rescinding party "restore[s] to the other party everything of value which he has received from his under the contract."  Cal. Civ. Code Sec. 1691.  F&L admitted to the district court that it could not rescind under California law because Lions Gate had already released the film.  Because F&L admits that it has no right of rescission, the rights to the film have not reverted to F&L.  F&L is thus unable to maintain a copyright infringement action against Lions Gate.  Because the district court's dismissal of F&L's federal claim was proper, the pendent state claims were properly dismissed as well.

3)  INSURANCE / PRODUCT LIABILITY: American Guarantee & Liability Insurance Company v. Del Mar Avionics, Inc., 00-55650 (9th Cir. Oct. 29, 2001) (unpublished).  Browning, Fernandez, and Fisher, Circuit Judges.
           The District Court for the Central District of California, Judge Taylor presiding, entered summary judgment in favor of Zurich American Insurance Company and American Guarantee and Liability Insurance Company (collectively "American Guarantee).  Del Mar Avionics appealed.  The USCA reversed.
           Del Mar argued that the district court could not rely upon the "your product" exclusion as it was not mentioned in American Guarantee's initial moving papers.  However, that issue was raised later, and Del Mar had a full and fair opportunity to ventilate it, which it used.  The district court thus did not err in that respect.  American Guarantee argued, and the district court agreed, that because the definition of "your product" included warranties regarding the product, coverage was excluded by a policy provision which excluded property damage to the product.  The USCA disagreed.  It noted that it must interpret this commercial general liability policy in a manner that accords with its plain meaning, if possible.  But if a policy "is capable of two or more constructions, both of which are reasonable," it is considered to be ambiguous.  In the case of an exclusion, the USCA said it must construe ambiguous language against the insurer so that the insurer is not improperly disabused of its expectation that it is protected.  The provision at hand was at least ambiguous, and might even be seen as clearly in favor of the interpretation propounded by the insured Del Mar.  American Guarantee argued that the inclusion of the warranty language had the effect of excluding damage to some property of third parties (as opposed to the insured's own product) from coverage.  The USCA found that peculiar.  While it was clear enough that similar provisions (but without warranty language) do exclude coverage for damages to the very product the insured manufactured, it is equally clear that they do not exclude damage to a third person's property.  The USCA found American Guarantee's position to be counterintuitive as it would extend the exclusion in a manner that would tend to eliminate liability for third party damage in the most usual case—that is, a case where expressed or implied warranties of fitness, quality, durability or performance accompany the goods which are sold.  A more reasonable reading of the warranty provision would be one that allowed American Guarantee to avoid an argument that damage caused by or to the insured's product is ascribable to the warranty, rather than to a product defect as such, an argument which has been attempted, sometimes successfully, in various contexts.  But while such a reading avoids that argument, it does not exclude the "products-completed operation hazard" coverage relied on by Del Mar where a purchaser of the product has sustained damage to property other than the product itself.  To put it succinctly, it will not matter if the product intrinsically fails or if it fails because it cannot live up to a warranty which accompanies it.  In either event, damage to the product is excluded, but damage to a third party's property is not.  The fact that the insured warranted that its product would not damage, or would even enhance, the third party's property does not change the result.  In the underlying action, Optodisc, S.A. claimed that the defective Del Mar product damaged other property of Optodisc.  The "your property" exclusion did not apply to that.  The USCA thus reversed the district court and remanded for further proceedings.

4)  INSURANCE: Allstate Insurance Company v. Harms, 00-15217 (9th Cir. Oct. 12, 2001) (unpublished).  B. Fletcher, Canby, Paez, Circuit Judges.
         Allstate Insurance Company denied Harms' claim for benefits under a residential fire policy because the results of its investigation showed that Harms intentionally set the fire which destroyed the dwelling or caused that fire to be set.  Allstate also concluded that Harms made material misrepresentations in connection with its investigation of the loss.  Allstate filed a diversity action on March 25, 1998, seeking a declaration that the fire policy was null and void.  Harms filed a counterclaim for breach of contract and "negligence and intentional acts."  The jury returned a special verdict for Allstate, finding that Harms had intentionally caused the fire, that she failed to take reasonable steps to save and preserve the dwelling when it was endangered from fire, and that she willfully made material false statements to Allstate or willfully concealed material facts from Allstate in connection with the post-fire investigation.  The District Court for Hawaii, Judge Gillmor presiding, entered judgment on the verdict.  In Allstate's first appeal, 00-15217, Harms argues that:  (1) the district court's order granting Allstate's motion in limine to exclude evidence of subsequent fires at Harms' other rental properties prejudiced her right to a fair trial; and (2) Allstate's mention during the trial of an accusation that Harms had caused her husband's death deprived her of a fair trial, notwithstanding her stipulation that any prejudice would be mitigated by the district court's instruction to the jury that the accusation was untrue.  The district court referred Allstate's motion for attorneys' fees to the magistrate judge as special master and later adopted most of the special master's report, modifying it in part.  The court awarded All-state $54,262.67 in attorneys' fees and $3,121.42 in costs.  Harms' second appeal, 00-16823, challenged the adequacy of the district court's findings that Harms' defenses and claims were frivolous and totally unsupported by the facts and law in the civil action.  The USCA affirmed the judgment in 00-15217 but reversed the judgment for costs and fees at issued in the second appeal, 00-16823, and remanded the case to the district court for reconsideration of Allstate's motion for costs and fees under Haw. Rev. Stat. Sec. 607-14.
          First, Harms argued that the district court abused its discretion in granting Allstate's motion in limine pursuant to Fed. R. Evidence 403 to exclude evidence of several subsequent fires at Harms' other properties.  Harms acknowledged that she did not know who caused the other fires and identified no evidence to support her general suspicions that those fires were connected to the one involved in the present action.  In these circumstances, the district court was in no position to access whether the unidentified evidence was even probative.  The district court could reasonably find that introduction of the unspecified evidence regarding later fires would not be an efficient allocation of trial time.  The district court could also reasonably conclude that admitting evidence of the other fires, along with Allstate's rebuttal evidence, would create a significant danger that the jury would base its assessment of liability on remote events involving other non-parties, instead of recent events concerning Harms.  The USCA thus found no abuse of discretion in the district court's in limine ruling excluding the evidence.
         Second, Harms argued that Allstate's counsel's mention of an alleged accusation that Harms had caused her husband's death constituted incurable prejudice warranting reversal of the judgment.  Although the USCA found the comment troubling and of questionable relevance, Harms did not object to the inquiry.  By failing to do so, she waived the right to raise the issue on appeal.  Harms thus identified no manifest injustice or issue of law that might warrant the USCA's review despite her failure to object at trial.  In fact, Allstate and Harms stipulated that the district court would read an agreed-upon statement to the jury that any statement or assertion by any person that Harms was in any way responsible for the death of her husband is untrue.  As a general rule, "a timely instruction from the judge usually cures the prejudicial impact of evidence of other misconduct unless it is highly prejudicial or the instruction is clearly inadequate.  USA v. Berry, 627 F.2d 193, 198 (9th Cir. 1980).  Allstate asked Harms about the accusation not to demonstrate its truth or falsity, but rather to show its effect on Harms.  Allstate counsel did not accuse Harms of killing her husband;  rather, he asked Harms to compare the relative emotional impact of the accusations of killing her husband and committing arson.  Moreover, during later cross-examination, Harms had an opportunity to explain the context of the accusation regarding her role in her husband's death.  The jury thus had an opportunity to hear Harms' view of the accuser and the absurdity of the accusation.  The USCA thus concluded that Harms waived the issue by failing to object at the time, and, with the district court's curative instruction to the jury, no manifest injustice warranted USCA review.
          Appeal 00-16823 concerned the district court's award of attorneys' fees and costs to Allstate under Haw. Rev. Stat. Sec. 607-14.5 which authorized the court to award a "reasonable sum" for attorneys' fees and costs upon its specific finding that the losing party's claim or defense was frivolous.  The district court made the requisite finding of frivolousness, the adequacy of which Harms now contests.  Although the jury did find that Harms intentionally set the fire or caused it to be set and that she misrepresented the facts during Allstate's investigation of the loss, it is also true that the district court denied Allstate's motion for judgment as a matter of law and allowed the case to go to the jury.  The USCA found the district court's denial of Allstate's motion to be inconsistent with a finding of frivolousness under Hawaii law.  See Coll v. McCarthy, 804 P.2d 881, 887 (1991) (Under Hawaii law, "frivolous" means "manifestly and palpably without merit;" claim must indicate pleader's bad faith).  Allstate also sought its attorneys' fees and costs under another Hawaii statute, Haw. Rev. Stat. Sec. 607-14, which makes an award to the prevailing party mandatory "in all actions in the nature of assumpsit and in all actions on a promissory note or other contract in writing that provides for an attorney's fee."  Section 607-14 caps the amount of fees at 25% of the judgment sought; the requested fees must also be reasonable.  The Hawaii Supreme Court has recognized an insurer's ability to claim legal fees under this statute when the insurer prevails on a claim for insurance benefits.  As it appeared that the district court did not reach the issue of an award of attorneys' fees and costs to Allstate under Sec. 607-14, the USCA remanded for reconsideration of Allstate's motion for an award of costs and fees under this statute.

5)  INSURANCE:Brown v. Massachusetts Casualty Insurance Co., 00-55570 (9th Cir. Oct. 12, 2001) (unpublished).  Brunetti, Rymer, and Wardlaw, Circuit Judges.
         The District Court for the Central District of California, Judge Marshall presiding, awarded punitive damages in favor of Massachusetts Casualty Insurance Company's insured, Wanda Brown. 
          The USCA affirmed.  Massachusetts Casualty maintained that the district court erred in its award of punitive damages because there was no clear and convincing evidence in the trial record to support such an award.  The USCA had previously remanded the case to the district court so that it could make the appropriate findings, if any under California law to support an award of punitive damages.  In California, punitive damages may be awarded if malice, oppression or fraud are found by clear and convincing evidence.  Cal. Civ. Code Sec. 3294.  That district court found that there was sufficient evidence in the record to show malice, oppression and fraud.  It concluded that Massachusetts Casualty's failure to get an additional opinion from a properly informed consultant constituted an act of malice or oppression.  Moreover, the court found that Massachusetts Casualty's failure to disclose Dr. Doyle's letter suggesting a second opinion was a fraudulent act.  The court concluded that the above actions were done intentionally and willfully, in particular in light of the extent and documentation of Brown's disability.  The court set out specific facts that support an award of punitive damages under California law.  The USCA thus held that the district court did not abuse its discretion in awarding punitive damages.

6)  INSURANCE: Insurance Company of the West v. General  Reinsurance Corp., 00-55609 (9th Cir. Oct. 18, 2001) (unpublished).  O'Scannlain and Paez, Circuit Judges, and King, District Judge.
        The District Court for the Central District of California, Judge Phillips presiding, entered summary judgment in favor of General Reinsurance Corporation in this diversity jurisdiction suit regarding the scope of a release agreement.
The USCA affirmed.  It agreed with the district court that the release language is unambiguous.  The contract also contains a merger clause.  The district court thus properly refused to consider extrinsic evidence of intent, especially as between these two sophisticated commercial parties.  Likewise, it was not necessary to continue the summary judgment proceedings under Fed. R. Civ. P. 56(f) to allow for discovery of such evidence.  The USCA also agreed with the district court that the exception to the parol evidence rule for fraud or mistake does not apply here.  If there was a mistake, it was unilateral and would work, at most, only to rescind the entire agreement.  Insurance Company of the West's complaint was for declaratory relief;  it did not seek rescission.  The argument for rescission was not made to the district court and was waived.  Moreover, the mistake exception did not apply because, as the district court found, enforcement of the contract was not unconscionable.

7)  INSURANCE: Century Park East Homeowners Association v.  Northbrook Property & Casualty Insurance Co., 00-55401 (9th Cir. Oct. 30, 2001) (unpublished).  Browning, Fernandez, and Fisher, Circuit Judges.
        Century Park East Homeowners Association brought this action against Northbrook Property and Casualty Insurance Company, claiming that damage to its condominium was covered under a policy issues by Northbrook.  The District Court for the Central District of California, Judge Matz presiding, granted summary judgment in favor of Northbrook. Century Park appealed.  The USCA affirmed.
        After part of a Century Park's building suffered damage due a sinking slab, it made a claim against Northbrook.  The latter denied the claim on the basis of an earth movement exclusion in the policy.  Century Park maintained that the exclusion is ambiguous and that coverage should thus follow.  The USCA disagreed.  When the plain language of an insurance contract is clear and explicit, it governs.  This is the case here because it is pellucid that the unqualified phrase "any earth movement" includes all type of movement, both sudden and sluggish, and both natural and artificial.  The additional "such as" language did not limit that.  The USCA recognized that when a policy provision "is capable of two or more constructions, both of which are reasonable," it will be deemed ambiguous.  However, that did not mean that a provision is ambiguous simply because a court, somewhere, has deemed it so.

8)  CONTRACTS: Tempesta v. Motorola, Inc., 00-15472 (9th Cir. Oct. 30, 2001) (unpublished).  Roney, Hug, and Thomas, Circuit Judges.
        The District Court for Arizona, Judge Young presiding, granted Motorola summary judgment on Tempesta's claims of retaliation, breach of contract, intentional infliction of emotional distress, and interference with contract.
          The USCA affirmed.  The district court properly granted summary judgment on Tempesta's claims of improper retaliation pursuant to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Arizona Civil Rights Act.  These related claims were all examined under the three-step burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 US 792 (1973).  Under this approach, Tempesta must first establish a prima facie case of discrimination.  If he succeeds, the burden shifts to Motorola to articulate a legitimate, non-discriminatory reason for the challenged actions.  Then, in order to prevail, Tempesta must show that the reason offered by Motorola was pretext for a discriminatory motive.  The district court determined that Tempesta had created a genuine issue of material fact as to the elements of a prima facie case;  that Motorola had offered legitimate, non-discriminatory justification for the elimination of Tempesta's job;  and that Tempesta had failed to create a triable issue of fact as to pretext.  The district court thus reasoned, entry of summary judgment was appropriate on this claim. The salient question on appeal was whether Tempesta had tendered sufficient evidence of pretext to avoid summary judgment.  To create a triable issue, at the pretext stage, Tempesta had to present either some direct evidence of discriminatory motive or "specific" and "substantial" indirect evidence of pretext.  Tempesta conceded that there was little, if any direct evidence of discriminatory motive;  the USCA thus analyzed the inferences to be drawn from the circumstantial evidence.  To withstand summary judgment, plaintiffs must do more than make a prima facie case based on a bare minimum of circumstantial evidence giving rise to an inference of discrimination.  To sustain his claim of inference based on circumstantial evidence, Tempesta argued that Motorola's explanation of its decision to eliminate one of the billing clerk positions was not credible.  To be sure, if an employer's proffered explanation of his employment action is determined to be baseless, it may be sufficiently indicative of intentional discrimination to allow the case to be presented to a jury.  However, if the record persuasively reveals "some other, nondiscriminatory reason for the employer's decision," or "the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred," then the absence of a completely satisfactory explanation as to the basis of the employment actions is not enough to raise a genuine issue of material fact sufficient to avoid summary judgment.  In this case, Motorola presented uncontradicted evidence that there had been a significant decrease in the data entry workload, justifying a reduction in force.  Given that, Motorola chose to retain the employee with the most seniority and to offer Tempesta reassignment to another department.  Tempesta rejoined that the data indicating a decrease did not measure the tasks which he was performing.  Motorola concedes that the primary chart upon which it relied did not include a measurement of some of the functions that Tempesta was performing, but maintained that the critical point was that there had been a substantial reduction in the overall workload of the department due to a paperless requisitioning system that Motorola had purchased from Texas Instruments, as supported by the uncontroverted testimony of Motorola manager McLaughlin.  This, the USCA found was sufficient to establish a credible basis for Motorola's conclusion that an overall downturn in some of the data processing requirements justified a reduction in force without having to justify a specific decrease in demand for the specific type of data processing Tempesta was performing.  Once a reduction in force decision was made, implementing it on the basis of seniority was entirely appropriate.  Decisions regarding job elimination that are made on the basis of seniority, rather than according to which employee has experienced the greatest decline in his or her workload, are presumptively lawful.  Tempesta claims that there were other indicia of discrimination but, for the reason cited by the district court, none of these were sufficient to create a genuine issue of material fact.  Thus, because the record persuasively reveals "some other, nondiscriminatory reason for the employer's decision," and "the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred, the district court correctly concluded that Tempesta had failed to meet his burden to establish pretext. 
          The district court also properly granted summary judgment on Tempesta's breach of contract claims.  First, Motorola's policy manual, which contained Policy No. 1260 requiring "reasonable efforts" to relocate a long-term displaced employee, also included a clear and unambiguous statement disclaiming the creation of contractual obligations.  Second, even assuming that Motorola was contractually obligated to follow its policies, Policy No. 1260 was not applicable to Tempesta's situation because Tempesta was not "involuntarily separated" when his job was eliminated;  rather he was transferred.  Third, the undisputed evidence establishes that Motorola did make reasonable efforts to reassign Tempesta.
         The district court also properly granted summary judgment on Tempesta's claims for intentional infliction of emotional distress.  In order to sustain a claim for relief for his tort, the plaintiff must show that the defendant's acts were "so outrageous in character and so extreme in degree, as to … be regarded as atrocious and utterly intolerable in a civilized community."  Only when "reasonable minds could differ" in interpreting the conduct should the matter proceed to trial.  Here, the district court properly found that reason-able minds could not find any "extreme" or "outrageous" misconduct by Motorola as those terms have been construed under Arizona law.  Accordingly, Tempesta's retaliation claims did not support the "outrage" element of the emotional distress tort.  Finally, the district court properly granted summary judgment on Tempesta's claims of intentional interference with contract claims.  The district court correctly determined that there was insufficient evidence that one Timothy Jones called Motorola to eliminate Tempesta's position.

9)  CONTRACTS: Fissell v. Century 21 Real Estate Corp., 00-15364 (9th Cir. Oct. 17, 2001) (unpublished).  Wood, Kozinski, and O'Scannlain, Circuit Judges.
          The District Court for Arizona, Judge Collins presiding, entered a Fed. R. Civ. P. 52(c) judgment in favor of Century 21 Real Estate Corporation on Fissell's breach of contract suit.  Fissell appealed that judgment and also the court's subsequent award of attorneys' fees and costs to Century 21. 
         The USCA affirmed.  This suit arose out of a contract entered into in connection with the sale by Fissell to Century 21 of an on-going business, Western Relocation Management, Inc. ("Western").  Fissell maintained that the district court erred in finding that Century 21 did not breach the contract when it decreased Western's pretax income for 1995 and 1996 to reflect imputed interest on amounts that had been converted for classification purposes from money owed on line of credit to paid-in capital.  Fissell urges the USCA to treat this finding as a conclusion of law and to apply a de novo standard of review.  However, the USCA found that even if it were to apply this less deferential standard, the district court's decision had to be affirmed.  Western was a stand-alone entity for accounting purposes.  The imputed interest deduction was consistent with Western's history of utilizing an interest-accumulating line of credit from its parent company.  The district court thus did not err in holding that the imputed interest deduction did not constitute a breach of contract.  Fissell further argued that pretax income for 1995 and 1996 should be adjusted upward to reflect the earnings Western could have realized on funds that were transferred as "non-interest-bearing advances to parent."  However, the district court expressly found that the calculation of imputed interest expense for 1995 and 1996 incorporated the advances by treating them as reductions to the outstanding loan balance.  Fissell failed to show that this finding was clearly erroneous.  The USCA found that the re-mainder of Fissell's earnout claims, taken in aggregate, did not concern sufficient monetary amounts to exceed the cumulative threshold, and thus did not need to be addressed.  Under the contract, "if it is determined at the end of the Total Earnout Period that the amount in the Holdback Account is a negative number, then Purchaser shall not pay Seller anything and Seller shall not pay Purchaser anything."  Because the cumulative threshold was not met, Fissell was not entitled to an earnout payment for 1992 through 1996.  Century 21 tendered checks to Fissell for the 1992 and 1993 earnout payments, rather than depositing the amounts into the Holdback Account.  Fissell, however, refused the payments and cashed the checks.  Century 21's attempted payments which were never accepted, did not constituted a waiver of the Holdback provision.
         With respect to Fissell's contention that the final balance sheet should be adjusted to reflect $216,799.70 in uncashed checks that were eventually taken back into Western's income, the contract did not address adjustments to the final balance sheet.  Fissell testified at trial that he had no recollection of any agreement regarding such adjustments.  The fact that, in order to resolve a dispute with Fissell, Century 21 made one adjustment to the final balance sheet did not obligate Century 21 to make further adjustments.  Under the contract, Fissell was responsible for preparing the final balance sheet.  Fissell's expert testified that the choice to include the uncashed checks as liability on the final balance sheet was an "accounting error" and characterized Fissell's accountants' failure to investigate these uncashed checks at the time the final balance sheet was prepared as "incomprehensible."  Century 21's refusal to adjust the final balance sheet to correct an error by Fissell's accountants did not constitute a breach of contract.  The USCA thus upheld the district court's grant of Rule 52(c) judgment for Century 21.  The USCA affirmed the district court's award of fees and costs as well.  The contract provided that, in disputes arising under it, "the successful, prevailing or non-defaulting party shall be entitled to recover reasonable attorneys' fees … and other costs incurred."  The district court granted summary judgment for Century 21 on Fissell's claim for an accounting and judgment as a matter of law in favor of Century 21 on Fissell's remaining claims.  Century 21 was the prevailing party under both the contract and California law.

10)  BANKRUPTCY: In re Marsh, 00-35224 (9th Cir. Oct. 5, 2001) (unpublished).  Kozinski and Gould, Circuit Judges, and Schwarzer, District Judge.
          Cherewick, president of Trigny Corporation, the debtor in bankruptcy, appealed an order of the District Court for the Western District of Washington, Judge Rothstein presiding, dismissing his appeal from an order of the bankruptcy court holding him in contempt for failing to comply with discovery.  The District Court found that Cherewick failed to perfect his appeal within the time provided by Bankruptcy Rule 8006.
         The USCA reviewed this dismissal for non-compliance with non-jurisdictional bankruptcy rules for abuse of discretion and affirmed.  On August 10, 1999, the bankruptcy judge entered an order of civil contempt against Cherewick requiring him to produce documents and appear for examination.  On August 23,1999, Cherewick filed a notice of appeal and moved for a stay of the order pending appeal.  The bankruptcy judge denied the stay and Cherewick appealed.  On October 6, 1999, the District Court denied the motion for a stay, noting that "the issuance of a stay would clearly continue an already serious delay in this matter and would be injurious to the interests of the creditors on whose behalf the information is being sought."  On November 3, 1999, the bankruptcy judge entered an additional contempt order, ordering Cherewick to produce the documents required by the earlier order.  Cherewick failed to perfect his appeal of the August 10 order by filing the required designation of record and statement of issues.  On November 10, 1999, the appellee moved to dismiss Cherewick's appeal.  One month later, on December 10, Cherewick filed his designation and statement of issues on appeal.  Although as a general rule a district court must consider alternative sanctions to dismissal, in "egregious circumstances" it may dismiss a case for non-compliance with procedural rules without explicit consideration of alternative sanctions.  The USCA read the district court's finding on reconsideration that Cherewick's "109 day delay in designating the record on appeal is an inexcusably flagrant violation of the court's rules" as a finding of egregious circumstances.  That finding was amply supported by the district court's prior warning to Cherewick that the proceedings had already suffered serious delay to the prejudice of creditors and Cherewick's delay in perfecting his appeal until after the appellees moved to dismiss.  The USCA noted that it recognize that public policy favors disposition of cases on the merits.  That policy, however, carries little if any weight where the appeal is from an order of civil contempt requiring compliance with discovery, particularly where the prejudice to the estate's creditors is patent.  Finding no abuse of discretion, the USCA affirmed the district court's order of dismissal.

11)  BANKRUPTCY: In re D.W.G.K. Restaurants, Inc., 00-55144 (9th Cir. Oct. 12, 2001) (unpublished).  Fernandez, Kleinfeld (dissenting), and McKeown, Circuit Judges.
         Rentto appealed the Bankruptcy Appellate Panel's decision which affirmed a bankruptcy court order disallowing his claim for approximately $250,000 in legal fees and costs against the bankruptcy estate of D.W.G.K. Restaurants (the Debtor).
           The USCA affirmed.  Rentto represented the adverse parties (the Kaye Group) in an adversary proceeding brought by the Debtor.  His client lost the action in 1987.  He now sought recovery for the services rendered in representing the adverse parties.  Rentto filed a creditor's claim in this proceeding, but he did not prevail on that because all of his services were rendered after the inception of this bankruptcy.  A claim is a "right to payment."  11 USC Sec. 101(5).  As relevant here, a creditor is one who "has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor."  Sec. 101(10)(A).  Again, that does not define Rentto's situation.  The USCA recognized that the bankruptcy court's order of May 15, 1987, provided for allowable claims of the Kaye Group's creditors, but that did not advance the argument because, as that order indicated, it was speaking of "pre-petition claims," that is, claims in existence before the Debtor filed its petition.  Still, that did not encompass Rentto's claim.  Rentto also asserted that he should receive the fees because the proceeding against the Kaye Group was like an involuntary bankruptcy, and the firm's work for the Kaye Group was like the work of one who was representing the prospective involuntary bankrupt.  It is true that a so-called "gap claim" can be allowed when there is an involuntary bankruptcy proceeding.  But this was not that.  It was simply an adversary proceeding, which ended in the seizure of assets of the Kaye Group on the theory that those assets belonged in the Debtor's bankruptcy.  That did not make the Kaye Group members bankrupts, nor did it confer upon them the benefits of bankruptcy proceedings.  Rather, Rentto could pursue them for his fees or if they filed separate bankruptcies, he could file claims in their estates.  Thus, even if this were like an involuntary bankruptcy, it is not one.  The USCA added that it was sympathetic to Rentto's assertion that is a hard thing for his clients to lose their case, their assets, and their ability to pay for his professional services, but the law does not protect them.  Those who are drawn into the bankruptcy maelstrom often suffer great losses, and even lawyers who never encounter it often lose their fees when their clients lose their cases."
        Dissenting, Judge Kleinfeld noted that when Rentto represented the Kaye Group, it had not filed for bankruptcy.  Rentto's claim against his client for his fees never suffered from the infirmity of representing a bankruptcy estate without court approval.  Although the Kaye Group's asserts were consolidated with the D.W.G.K. bankruptcy estate, that did not mean the Kaye Group creditors, like Rentto, could only pursue their claims against the not stripped Kaye Group.  The consolidation also made "allowable claims" good against the D.W.G.K. bankruptcy estate.  Rentto's claim would not have been allowable had he represented D.W.G.K. after the filing without court approval, but he did not do that.  Although Rentto would ordinarily have no claim against D.W.G.K. for representing its adversary, the court order gave him and other Kaye Group creditors such a claim, to avoid inequity from the consolidation of assets.  He is an innocent Kaye Group creditor, so far as the record shows, whose claim should, under the consolidation order, follow the Kaye Group's asserts into the D.W.G.K. bankruptcy.

12)  BANKRUPTCY: In re Ybarra, 00-56221 (9th Cir. Oct. 24, 2001) (unpublished).  Reinhardt, Graber, and Berzon, Circuit Judges.  Ybarra appealed the Bankruptcy Appellate Panel's order dismissing her appeal from the bankruptcy court's decision denying her "Motion to Reopen Time for Appeal" pursuant to Federal Rule of Appellate Procedure 4.  The USCA reviewed de novo the BAP's jurisdiction determination and affirmed.  As Ybarra's motion had not been filed within 30 days of entry of the bankruptcy court's order, the BAP properly dismissed her appeal.  The USCA rejected Ybarra's contention that Rule 4 applies to a motion to extend the time period for appealing an order of the bankruptcy court to the BAP.  The Federal Rules of Appellate Procedure "govern procedure in the United States courts of appeals."  FRAP 1(a).

13)  BANKRUPTCY: In re Osijo, 01-15127 (9th Cir. Oct. 24, 2001) (unpublished).  Reinhardt, Graber, Berzon, Circuit Judges.  Osijo appealed pro se a Bankruptcy Appellate Panel's decision affirming the bankruptcy court's judgment in favor of the defendant in this adversary proceeding alleging that Cosmopolitan financing Company failed to comply with California statutory notice require-ments when it sold his repossessed vehicle after obtaining relief from the automatic stay provisions of 11 USC Sec. 362(a).  The USCA affirmed.  The BAP did not err because the automatic stay did not toll the statutory redemption period provided by Cal. Civ. Code Sec. 29983.2, and Osijo failed to raise his remaining statutory notice arguments before the bankruptcy court.

14)  BANKRUPTCY: In re Specialty Restaurants Corp., 00-55327 (9th Cir. Oct. 30, 2001) (unpublished).  Boochever, Fernandez, and Fisher, Graber, Berzon, Circuit Judges.
         Specialty Restaurants Corporation, the debtor-in-bankruptcy, commenced this adversary action against Praxis Development Group.  Specialty sought dissolution of a partnership with Praxis and a declaration quieting title to real property subject to an option.  The bankruptcy court granted judgment in favor of Specialty.  The District Court for the Central District of California, Judge Paez presiding, affirmed.
           The USCA affirmed.  The bankruptcy court determined that under the contract the time for exercise of the option commenced on April 18, 1994, when it became known that a freeway interchange would not be built at the location of the property, and expired April 18, 1996.  That was a proper construction of the contract, and Praxis does not dispute that, unless some other provision or principle extended the time.  None of the bases for extension, which Praxis submitted to the USCA, were delineated in its answer or pre-served in the pretrial conference order.  That being so, as far as this adversary proceeding is concerned Praxis waived those issues.  Nor is Praxis aided by Fed. R. Bankr. P. 7013, which indicates that counterclaims need not be pled in an adversary proceeding brought by the debtor.  Nothing in that rule says that those unpled claims become part of the adversary proceeding itself. At any rate, even were they deemed to have become part of the proceeding ab initio, they were not preserved in the pretrial order.  Because it would not consider the claims on appeal, the USCA concluded that the bankruptcy court did not err.

15)  BANKRUPTCY: In re Republic/Fudge/Lee Partners, 00-55842 (9th Cir. Oct. 30, 2001) (unpublished).  Browning, Fernandez, and Fisher, Circuit Judges.
         Lion LLC, a limited liability company of the Island of Nevis and the alter ego of its attorney, Fudge, appealed the decision of the Bankruptcy Appellate Panel which dismissed Lion's appeal as moot.  The USCA agreed with the BAP and also dismissed as moot.  First, the BAP correctly determined that this appeal is moot.  The property in question had been sold.  When that occurs, an appellate court is rarely in a position to fashion relief and that rarity does not exist here.  Moreover, the sale was to a good faith purchaser, and could not be modified or set aside.  The USCA thus dismissed the appeal.  Second, in his brief the bankruptcy trustee asked that the USCA impose damages on Fudge for bringing a frivolous appeal.  The USCA agreed that, especially in light of the dismal history of Fudge's behavior in this and related proceedings, the appeal was frivolous.  The result was obvious and the arguments were entirely devoid of merit.  But the USCA said the trustee should make a separate motion, which it could consider pursuant to the procedures in Ninth Circuit Rule 39-1.

16)  AMERICANS WITH DISABILITIES ACT: Vawser v. Fred Meyers, Inc., 00-36081 (9th Cir. Oct. 4, 2001) (unpublished).  Kozinski and Gould, Circuit Judges, and Schwarzer, District Judge.
         The District Court for Oregon, Judge Aiken presiding, entered summary judgment dismissing Vawser's claims against Fred Meyer, Inc. brought under the Americans with Disabilities Act ("ADA") and the Oregon Rehabilitation Act.  Vawser challenged that decision and also the district court's summary judgment dismissing his common law claims of negligence and public disclosure of private facts.
       The USCA affirmed.  Vawser first maintained that the district court erred in ruling that Meyer did not fail to provide reasonable accommodation or to make a reasonable effort to explore possible accommodations.  When the duty to accommodate arises, both the employee and the employer must communicate, exchange essential information and not delay or obstruct the process.  Moreover, an employer is not obligated to provide a qualified individual with the accommodation of their choice upon demand.  Rather, the reasonable accommodation process requires an individualized case-by-case assessment.  Here, Vawser was allowed to use sick leave, was granted leaves of absence, and was allowed to leave work to deal with his illness and other medical conditions.  On October 26, 1998, Vawser's physician, Dr. Antoniskis, recommended a structured five-day work week to accommodate Vawser's illness.  In her letter to Meyer, she stated that Meyer should not hesitate to contact her with questions.  Thornton, Meyer's Employee Relations Manager, testified that she did not know precisely what Antoniskis meant by her reference to a structured work week in the context of retail store management.  On November 4, 1998, Meyer requested clarification of Antoniskis' recommendation, providing her also with Vawser's job description and work schedule.  Antoniskis failed to respond to Meyer's request for clarification.  Instead, it appears from the record that Antoniskis unilaterally decided that Meyer's request for clarification was not responsive and decided to take Vawser off work.  By treating an inquiry that her letter invited as if it were an unequivocal rejection of accommodation, Antoniskis broke off the interactive process required by the ADA.  On November 10, 1998, Vawser filed an application for medical leave assistance with an attached "Certification of Health Care Provider," both of which indicated that Vawser was no longer able to work at all, regardless of any modi-fied work schedule.  Vawser was responsible for the breakdown of the interactive process.  Meyer could, within reason, ask Vawser's doctor for clarification of the accommodation she recommended on Vawser's behalf.  Vawser's doctor abruptly terminated the discussion.  Meyer previously had accommodated Vawser's request for sick leaves and leaves of absence.  The record did not indicate that Meyer rejected an accommodation Vawser proposed.  Meyer is not responsible for a communications failure by Vawser's doctor.  The USCA thus affirmed the district court's grant of summary judgment on Vawser's ADA "reasonable accommodation" claim.
         The USCA also ruled that the district court had properly held that maintaining Vawser's pay level was not an actionable adverse employment action under the ADA.  The USCA saw nothing in the Vawser's employment history to support his claim that absent his disability he would have received a larger pay raise.  Moreover, Vawser had not shown any genuine issue that Meyer based his pay levels on his disability.  The USCA thus upheld the summary judgment on this issue.
           Vawser also challenged the district court's dismissal of his claim under the ADA of a hostile work environment.  However, the USCA concluded that it did not need to decide whether a claim for hostile work environment was actionable under the ADA.  For, assuming without deciding that such a claim is proper, Vawser failed to present sufficient evidence to support any claim that he encountered a work environment hostile to his disability.  The USCA agreed with the district court that Vawser failed to prove that the conduct he complained of was undertaken because of his HIV/AIDS status.  The USCA also agreed that the challenged conduct was not sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.  Vawser based his claim of disability harassment on the alleged conduct of three supervisors.  The record fails to show that any of them knew of Vawser's HIV/AIDS status during the relevant period.  Any hostile treatment Vawser received was not shown to have been "because of" his disability.  The USCA agreed with the district court that the alleged conduct was not sufficiently severe or pervasive to establish an actionable hostile environment claim.  The district court's analysis of Vawser's allegations of hostile environment was complete, thorough, and supported by the USCA's independent review of the record.  The record was devoid of evidence that Vawser's workplace was permeated with discriminatory intimidation, ridicule, or insult because of his illness.
          Vawser also challenged the district court's dismissal of his claim that in violation of the ADA he was unlawfully discharged at the expiration of his leave of absence.  To prevail on an employment discrimination claim under the ADA, Vawser had to prove that: (1) he was a disabled person under the ADA; (2) he was able to perform the essential functions of his job with or without reasonable accommodations; and (3) Meyer terminated him because of his disability.  Vawser did not claim he was able to continue work after his leave of absence.  At that state, absent some other communication and evidence, Meyer reasonably could conclude that Vawser was unable to work.  Vawser failed to show a genuine issue of material fact as to whether Meyer terminated him because of his disability.  To the contrary, it was undisputed that Vawser's condition had deteriorated to a point where work was not an option. 

17)  AMERICANS WITH DISABILITIES ACT: Bingham v. Ediger, 99-35366 (9th Cir. Oct. 10, 2001) (unpublished).  Thompson, Tashima, and Graber, Circuit Judges.
         The District Court for Oregon, Judge Coffin presiding, entered judgment for of plaintiff Bingham.  Defendant Oregon School Activities Association ("OSAA") appealed.
            Bingham, a learning-disabled student, was required to repeat his sophomore year of high school due to poor academic progress.  The district court determined that OSAA violated Title II of the Americans with Disabilities Act when it refused to waive its "Eight-Semester Rule" and barred Bingham from participating in high school athletics during the 1998-99 academic year.  The district court granted Bingham injunctive relief and awarded attorney fees and costs.  The USCA concluded that Bingham's request for injunctive relief had become moot and, thus vacated the district court's injunction, except for an award of attorneys' fees and costs.  The district court's injunction included two components:  First, OSAA was enjoined from using its eligibility rules to deny Bingham eligibility to participate in athletics in the 1998-99 school year and from penalizing his high school for allowing him to participate.  Second; OSAA was required to rewrite its Eight-Semester Rule and its Age Rule.  OSAA complied with the injunction.  It took no adverse action against Bingham's high school and has agreed that it will not do so regardless of the outcome of this case.  It has rewritten its Eight-Semester and Age rules.  Bingham has completed high school, having participated in athletics during the 1998-99 school year.  This case had thus lost its character as a present live controversy and was moot.  There is no longer any legitimate concern about OSAA's Eight-Semester or Age rules.

18)  EMPLOYMENT LAW:Greenawalt v. Sun City West Fire District, 00-15503 (9th Cir. Oct. 11, 2001) (unpublished).  Politz, W. Fletcher, and Fisher, Circuit Judges.
        Under Arizona law, statutes are presumed not to apply retroactively unless they contain an express statement of retroactive intent.  Ariz. Rev. Stat. Sec. 1-244.  This rule only applies to substantive enactments, however;  statutorily enacted procedural requirements may be given retroactive application, because litigants have no vested rights in the application of particular procedures. Aranda v. Indus. Comm'n, 11 P.3d 1006, 1009 (Ariz. 2000) (en banc).  "Substantive law creates, defines and regulates rights while a procedural law establishes only the method of enforcing such rights or obtaining redress."  Id. (quoting Hall v. A.N.R. Freight Sys., Inc., 717 P.2d 434, 442 (Ariz. 1986).  The EPA thus clearly implicates substantive rights.  The statute does not merely explain how an employee may go about bringing a claim for breach of contract;  it defines substantively when a terminated employee may bring such a claim.  However, just defining the EPA as a substantive statute does not end the inquiry because "a substantive legal right may be subject to retroactive impairment before it becomes a vested right."  Id at 1010.  "A vested property right is a right which is 'actually assertable as a legal cause of action or defense or is so substantially relied upon that retroactive divestiture would be manifestly unjust.'"  Id. (quoting San Carlos Apache Tribe v. Superior Court, 972 P.2d 179, 184 (Ariz. 1999).  To the extent Greenawalt alleged he had an employment arrangement under which he could only be fired for cause, his right to job security vested with the promulgation of the District's Statement of Policy ("Policy"), which occurred within a year of his move from Rural Metro to the District in 1994.  The EPA was enacted in 1996, after any rights created by the Policy had vested.  The District thus could not rely on the EPA to divest Greenawalt of these rights retroactively.
         The USCA also addressed whether Greenawalt was correct that genuine issues of fact should have precluded the district court's holding that he was an at-will employee.  Under Arizona common law, employment contracts are presumed to be at-will, but "an employee can overcome this presumption by establishing a contract term that is either expressed or inferred from the words or conduct of the parties."  Demasse v. ITT Corp., 984 P.2d 1138, 1143 (Ariz. 1999) (en banc).  As both parties acknowledged during argument, construction of ambiguous contracts is submitted to a jury under Arizona law.  Such ambiguity is present with regard to Greenawalt's employment relationship.  The section of the Policy concerning disciplinary procedures indicates employment is at-will, and specifies that "discharge may occur 'for cause' or for 'no cause'"  Under the section outlining terminations, however, the Policy implies that discharge may only be for cause:  "An involuntary termination is defined as the termination of an employee without benefit of his/her request.  Involuntary termination's [sic] are one of two classes:  A. Dismissal for gross infraction of rules / regulations or failure to maintain minimum certifications.  B. A Reduction in Force."  Moreover, the Rural Metro handbook from which the Policy was in large part copied contained a number of visible at-will disclaimers.  Given the manner in which the Policy was created, the absence of all but one of these disclaimers (noted above) in the Policy creates an issue of fact as to the parties' relationship.  Because such ambiguity is present, the nature of Greenawalt's employment should have gone to a jury.  On remand, the proffered expert testimony of expert witness Gromoll is inadmissible under Federal Rule of. Evidence 702 given the record before the USCA.  Expert testimony must be relevant and reliable, and it must relate to some form of specialized knowledge.  It may not include unsupported speculation and subjective beliefs.  Gromoll's report was written from the perspective of "what a good handbook should have" in order to make clear to a firm's employees what their employment status is, rather than what an employer must do under Arizona law to preserve at-will status for its employees.  The USCA thus held that it was not relevant to the disputed issues.  To the extent Gromoll purports to compare the Policy with "the standard practice of Arizona employers for such disclaimers," her deposition testimony indicated that she was not in a position to make such a determination.