2)  ANTITRUST LAW:  USA v. Tucor International, Inc., 00-10167 (9th Cir. Jan. 25, 2001).  The government did not act in bad faith when it prosecuted the appellant motor carriers for violations of Sec. 1 of the Sherman Act for conspiring to fix prices due to an erroneous, but honest belief that they were not covered by an antitrust immunity provision of the Shipping Act of 1984.  Thompson, O'Scannlain, and Tashima (author), Circuit Judges.  W. Dean of Washington, DC, for the defendants-appellants;  J. Powers of Wash-ington, DC, for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

3)  FAIR DEBT COLLECTION PRACTICES ACT: Slenk v. Transworld Systems, 99-16231 (9th Cir. Jan. 10, 2001).  The district court erred in granting summary judgment to a creditor in a action alleging abusive debt collection practices where the borrower raised genuine issues of material fact as to whether the loan was a consumer debt.  Hug, Trott (author), and Wardlaw, Circuit Judges.  J. Paer of Honolulu, HI, for the plaintiffs-appellants;  N. Hulbert of Honolulu, HI, for the defendant-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

4)  TAXATION:  Gumataotao v. Director of Dept. of Revenue and Taxation, 99-15997 (9th Cir. Jan. 10, 2001).  Guam can tax its residents on interest earned from United States bonds.  Hug, Trott (author), and Wardlaw, Circuit Judges.  R. Torres of Hagatna, GU, for the plaintiff-appellant;  S. Cohen of GMF, GU, for the defendant-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

5)  INSURANCE LAW:  Guebara v. Allstate Ins. Company, 98-55458 (9th Cir. Jan. 12, 2001).  The district court did not error under California law in dismissing Guebara's bad faith claims since in California the "genuine issue" rule applicable to insurance coverage extends to both factual issues and issues of contractual language and insurance law;  Judge Fletcher dissented from that portion of the majority's opinion that upheld the district court's grant of summary judgment to the insurer on Guebara's bad faith claims;  the critical issues is whether the "genuine issue" rule applies to factual disputes concerning coverage under an insurance policy or is limited to coverage disputes over the meaning of the policy:  Judge Fletcher thought the California Supreme Court would limit the rule to questions of law;  thus she would reverse the summary judgment on the bad faith claims and remand them for trial, or certify the issue of whether the "genuine issue" rule applies to factual disputes concerning coverage to the California Supreme Court.  B. Fletcher (dissenting in part), D.W. Nelson (author), and Brunetti, Circuit Judges.  A. Geraci of San Diego, CA, for the plaintiff-appellant/cross-appellee;  C. Bird of San Diego, CA, for the defendant-appellee/cross-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

6)  TORTS / STATUTE OF LIMITATIONS: Nodine v. Shiley, Inc., 99-55611 (9th Cir. Jan. 22, 2001).  The statute of limitations for a fraud claim based on a defective heart valve began to run, at the latest, when the plaintiffs agreed to settle claims arising from the same facts as the fraud claim;  dissenting, Judge Alsup would hold that the agreement expressly recognized the availability of "future" specified claims and that at least as to those future claims implicitly recognized that no limitations period would begin to run until the "future mechanical failure" or "future removal."  Tashima (author) and Tallman, Circuit Judges, and Alsup (dissenting), District Judge.  G. Woodburn of Newport Beach, CA, for the appellant;  A. Arbisser of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY:  In re Lazar, 97-56635 (9th Cir. Jan. 12, 2001).  Although the California State Water Resource Control Board is "an arm of" the State of California for purposes of Eleventh Amendment immunity from suit, the Board waived its  immunity by filing proofs of claims in a bankruptcy Trustee's action seeking a writ of mandamus against the Board to reinstate the Trustee's claim against the California Underground Storage Tank Cleanup Fund;  the USCA held that the Fund is also an arm of the state and thus entitled to invoke Eleventh Amendment immunity.  Browning, Thomas, and Wardlaw (author), Circuit Judges.  E. Martin of Diamond Bar, CA, and D. Gould of Los Angeles, CA, for the appellants-cross-appellees;  D. Robinson and W. Abbey of Los Angeles, CA, for the appellees-cross-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) ) 

8)  BANKRUPTCY:  In re Betacom of Phoenix, Inc., 98-17133 (9th Cir. Jan. 24, 2001).  No actual sale or purchase of a security is required for the subordination of breach of contract claims to claims of the debtors' unsecured creditors pursuant to 11 USC Sec. 501(b), which mandates the subordination of damages claims arising from the purchase or sale of a security.  Schroeder, Hall (author), and W. Fletcher, Circuit Judges.  J. Cross of Phoenix, AZ, for the appellants;  M. Gottfried of Phoenix, AZ, for the appellees/cross-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  BANKRUPTCY:  In re Jercich, 00-15300 (9th Cir. Jan. 23, 2001).  A debt arising from at breached employment contract is excepted from discharge in bankruptcy under 11 USC Sec. 523(a)(6) where it is accompanied by "willful and malicious" tortious conduct by the debtor, even if the conduct would not have been tortious absent the contract.  Rymer, T.G. Nelson (author), and Wardlaw, Cir-cuit Judges.  T. Duffy of Monterey, CA, for the appellant;  T. Patrick of Redding, CA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  FALSE CLAIMS ACT:  Bly-Magee v. California, 98-56523 (9th Cir. Jan. 2, 2001).  In a qui tam action under the False Claims Act against California and certain of its officials, the plaintiff should be allowed leave to amend her complaint to assert claims against the officials for conduct that is outside the proper scope of official duties such as a cover-up of theft of federal funds to protect family, personal friends and associates;  such claims must be pled with particularity.  Pregerson, W. Fletcher, and Gould (author), Circuit Judges.  C. Bly-Magee pro se;  K. Lake of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  TRUST ACCOUNTS  / TAKINGS: Washington Legal Foundation v. Legal Foundation of Washington, 98-35154 (9th Cir. Jan. 10, 2001).  Interest generated by pooled trust accounts is the property of the clients whose money is deposited into the accounts;  a government appropriation of that interest for public purposes is a taking entitling the clients to just compensation under the Fifth Amendment.  Trott, Kleinfeld (author), and Silverman, Circuit Judges.  R. Samp of Seattle, WA, for the appellants;  D. Burman of Seattle, WA, and M. Hart of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  EMPLOYEE WEBSITES / PRIVACY:  Konop v. Hawaiian Airlines, 99-55106 (9th Cir. Jan. 8, 2001).  Plaintiff, a pilot for Hawaiian Airlines, maintained a secure website where he posted bulletins critical of his employer, its officers, and the incumbent union;  the district court erred in granted the Airlines summary judgment on the plaintiff's claim that it violated the Wiretap Act and the Stored Communications Act by viewing his website under false pretenses and violated the Railway Labor Act by gaining unauthorized access to and disclosing the contents of his website.  Boochever (author), Reinhardt, and Paez, Circuit Judges.  R. Konop pro se;  M. Shipp of Irvine, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  EMPLOYMENT DISCRIMINATION:  Downey v. Crowley Marine Services, 99-35439 (9th Cir. Jan. 3, 2001).  Under Washington Law Against Discrimination, Wash. Rev. Code Sec. 49.60.180, an employer's duty to accommodate an employee's disability was triggered by notice that the disability (in this case, multiple sclerosis) has interfered with the employee's ability to perform his job, regardless of the employee's express preference to remain in his position.  B. Fletcher and Fisher, Circuit Judges, and Schwarzer, District Judge.  Per Curiam.  J. Meier of Seattle, WA, for the plaintiff-appellant;  R. Windes of Seattle, WA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  EMPLOYMENT DISCRIMINATION:  Snead v. Metropolitan Property & Casualty Ins., 99-35071 (9th Cir. Jan. 23, 2001).  When entertaining motions for summary judgment in employment discrimination cases arising under state law, federal courts sitting in diversity must apply the McDonnell Douglas Corp. v. Green, 411 US 792 (1973), burden-shifting scheme as a federal procedural rule;  dissenting, Judge Lay found it incongruous for a federal court to dismiss a prima facie case made under an Oregon disability statute based on a burden of proof paradigm designed for disparate treatment cases brought under a totally different statutory scheme.  Lay (dissenting), Tashima (author), and McKeown, Circuit Judges.  S. Hunt of Portland, OR, for the plaintiff;  A. Altschul of Portland, OR, for the defendants.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  LABOR LAW / AMERICANS WITH DISABILITIES ACT: Willis v. Pacific Maritime Association, 97-16778 (9th Cir. Jan. 10, 2001).  The Americans with Disabilities Act does not require an employer to violate bona fide seniority provisions of a collective bargaining agreement to accommodate a disabled worker.  Alarcon (author), O'Scannlain, and Fernandez, Circuit Judges.  K. McCormac of San Francisco, CA, for the plaintiffs-appellants;  D. Kallstrom and G. Wellons of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  LABOR LAW:  Kofoed v. IBEW, Local 48, 98-35030 (9th Cir. Jan. 12, 2001).  In an action between a union and one of its members, a Magistrate had jurisdiction to enter a final judgment where the parties orally consented to that judgment while before the Magistrate and subsequently filed written consent forms;  dissenting, Judge Rymer would vacate the judgment, dismiss the appeal, and remand to the district court, as she could find no record of oral consent by the parties to the Magistrate's authority to proceed under 28 USC Sec. 636(c), but only consent forms filed in the district court nearly three years after the "final" judgment was entered and two years after the notice of appeal was filed.  Hall (author), Rymer (dissenting), and Graber, Circuit Judges.  J. Kofoed pro per;  P. Hays of Portland, OR, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  DISABILITY BENEFITS / ERISA:  LaVenture v. The Prudential Insurance Co., 99-55990 (9th Cir. Jan. 19, 2001).  On an issue of first impression in the Ninth Circuit, the USCA held that a disability insurance policy, not originally covered by ERISA, is not converted into an ERISA plan merely because a company offers its employees unrelated health insurance coverage.  T.G. Nelson and W. Fletcher, Circuit Judges, and Reed (author), District Judge.  J. Metzger of Laguna Hills, CA, for the plaintiff-appellant;  R. Alberts of Marina Del Rey, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  ERISA:  Grosz-Salomon v. Paul Revere Life Insurance Co., 99-55812 (9th Cir. Jan. 29, 2001).  A district court must evaluate an ERISA plan administrator's decision to terminate an employee's disability insurance benefits using de novo review where language added to the plan giving the administrator discretion to determine eligibility for benefits is null and void.  T.G. Nelson (author) and W. Fletcher, Circuit Judges, and Reed, District Judge.  E. Oster of Irving, CA, for the defendant-appellant;  E. Lishner of Santa Monica, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  SEXUAL HARASSMENT:  Star v. West, 99-55624 (9th Cir. Jan. 18, 2001).  Counseling of an alleged sexual harasser may be a sufficient response by an employer who also moves the harasser to another shift, tells him to avoid the plaintiff, and tells him that the allegations are serious.  Tashima (author) and Tallman, Circuit Judges, and Alsup, District Judge.  G. Baltaxe of Encino, CA, for the plaintiff;  AUSA I. Daves of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  HOSPITALS / PATIENT DUMPING:  Arrington v. Wong, 98-17135 (9th Cir. Jan. 22, 2001).  Under the Emergency Medical Treatment and Active Labor Act of 1986, as implemented by 42 CFR Sec. 489.24, a hospital may divert an ambulance that has contacted its emergency room and is on the way to that emergency room only if the hospital is in "diversionary status";  dissenting, Judge Fernandez noted that under the Act, in addition to a request for services, the patient must come to the hospital's emergency room "physically," not merely be in electronic contact with it;  had Congress wished to do so, it could have drawn the line at some point other than the time when a person comes to an emergency room;  Judge Fernandez thus thought the plaintiffs here had no cause of action under the Act.  Canby, Reinhardt (author), and Fernandez (dissenting), Circuit Judges.  M. Sunderland of Honolulu, HI, for the plaintiffs-appellants;  P. Char, W. Hunt, and T. Cook of Honolulu, HI, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  INTERNATIONAL CHILD ABDUCTION: Mozes v. Mozes, 98-56505 (9th Cir. Jan. 9, 2001).  In a case of first impression in the Ninth Circuit, requiring an interpretation of the term "habitual residence" as used in the Hague Convention on Civil Aspects of International Child Abduction, the USCA vacated and remanded to permit the district court to determine whether the United States has supplanted Israel as the "locus of the children's family and social development" after the mother, with the father's consent, took their children to the United States for 15 months to learn English and partake of American culture.  While in the United States, she divorced him and sought custody of the children.  The father sought to have the children returned to Israel under the Hague Convention.  The USCA instructed that if the district court reaffirms its holding that the children's habitual residence had shifted to the United States, the case should end there;  but, if it decides that the facts do not warrant such a finding, it will have to resolve a series of additional questions—the first being whether the retention breached rights of custody attributed to the father under Israeli law, as only if that is the case is the retention wrongful under Article 3 of the Convention.  Kozinski (author) and Thomas, Circuit Judges, and Paez, District Judge.  A. Dyer of Austin, TX, for the petitioner-appellant; I. Lurvey of Los Angeles, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  SOCIAL SECURITY:  Lewis v. Apfel, 99-55356 (9th Cir. Jan. 2, 2001).  An ALJ's conclusion that a disability benefits claimant engaged in "substantial gainful activity" (work for pay or profit involving significant mental or physical activities) was not substantially supported by evidence that the claimant occasionally worked 20 hours per week at a fast-food restaurant during the relevant period and that he had not cut back his hours at the restaurant for health reasons;  under 20 CFR Secs. 404.1545 and 416.945 the ALJ must inquire whether the claimant has "residual functional capacity for work activity on a regular and continuing basis."  Tashima and Tallman, Circuit Judges, and Alsup (author), District Judge.  M. Taller of Anaheim, CA, for the plaintiff-appellant;  F. Hunger of San Francisco, CA, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  CHILD WELFARE / GOVERNMENT IMMUNITY:  Mabe v. San Bernardino County, Dept. of Public Social Services, 98-56561 (9th Cir. Jan. 24, 2001).  A material issue of fact existed regarding whether there was reasonable cause to believe, on the basis of information in the possession of a social worker at the time she removed a child from the parents' home that the child faced imminent danger of serious bodily injury sufficient to justify a warrantless entry into the parents' home and the seizure of the child;  the USCA thus reversed and remanded the issue for trial.  Boochever, Tashima, and Tallman (author), Circuit Judges.  P. Afrasiabi of Newport Beach, CA, for the plaintiff-appellant;  D. Wagner of San Bernardino, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  PUBLIC HOUSING / DRUGS:  Rucker v. Davis, 98-16322 (9th Cir. Jan. 24, 2001).  Sitting en banc, the USCA upheld the district court's judgment that if a public housing tenant has taken reasonable steps to prevent criminal drug activity by a household member or guest, but cannot realistically exercise control over that activity, federal regulations do not authorize that tenant's eviction;  dissenting, Judge Sneed, joined by Judges Fernandez, T.G. Nelson, and Silverman, thought it obvious that when Congress authorized the eviction of innocent tenants, the potential for individual unfairness existed but trusted that the "humane judgment" of public housing authority officials and the procedural protections of the law would prevent abuses of this power.  Sneed (dissenting), Schroeder, Pregerson, Reinhardt, Fernandez (dissenting), T.G. Nelson (dissenting), Hawkins (author), Silverman (dissenting), McKeown, Gould, and Paez, Circuit Judges.  G. Lafayette of San Francisco, CA, for the defendants-appellants;  W. Somvichian of San Francisco, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  FORUM NON CONVENIENS:  Lueck v. Sunstrand Corporation, 99-15961 (9th Cir. Jan. 8, 2001).  The district court did not err in dismissing a civil suit against American and Canadian corporations on forum non conveniens grounds where New Zealand provided an adequate alternative forum and the public and private factors weighed in favor of dismissal;  the plaintiffs were all citizens of New Zealand and victims of an airplane crash in New Zealand on a New Zealand carrier;  the defendants were Canadian and American aircraft and parts manufacturers.  Schroeder, Beezer, and Paez (author), Circuit Judges.  S. Copple of Phoenix, AZ, and T. O'Reilly of Menlo Park, CA, for the plaintiffs-appellants;  T. O'Neill of Phoenix, AZ, and R. Clark of Seattle, WA, for the defendants-appellees (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  JURISDICTION:  Tosco Corporation v. Communities for a Better Environment, 99-55400 (9th Cir. Jan. 2, 2001).  In determining a corporations principal place of business for purposes of federal diversity jurisdiction, the "place of operations test" (which locates a corporation's principal place of business in the state which "contains a substantial predominance of corporate operations") trumps the "nerve center test" (which locates a corporation's principal place of business in the state where the majority of its executive and administrative functions are performed).  D.W. Nelson, Brunetti, and Kozinski, Circuit Judges.  Per Curiam.  G. Pimstone of Los Angeles, CA, for the plaintiff-appellant;  J. Weissglass of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  JURISDICTION / TORTS:  Morris v. Princess Cruises, 99-55092 (9th Cir. Jan. 10, 2001).  In an action brought by a passenger against a cruiseship line and insurance companies alleging various tort and contract claims arising out of events occurring in Bombay, India, the district court had removal jurisdiction based on diversity of citizenship, and retained jurisdiction after the joinder of non-diverse insurers, as the presence of the insurers destroyed the district court's diversity jurisdiction, but not it original subject matter jurisdiction . O'Scannlain (author), Fernandez, and Rawlinson, Circuit Judges.  S. McCally of Houston, TX, for the plaintiff-appellant;  E. Ward of San Francisco, CA, and M. Bell of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  SUMMARY JUDGMENT:  Carmen v. San Francisco Unified School District, 98-16555 (9th Cir. Jan. 16, 2001).  A district court need not consider materials outside papers submitted in support of a motion for summary judgment and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers.  Wood, Kleinfeld (author), and Graber, Circuit Judges.  G. Coutin of San Francisco, CA, for the plaintiff-appellant;  A. Madison-Ramsey of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  CIVIL PROCEDURE / ARBITRATION: Theis Research v. Brown & Bain, 00-15219 (9th Cir. Jan. 24, 2001).  The district court's dismissal without prejudice of a motion to vacate was properly based on Sunshine Beauty Supplies v. U.S. District Court, 872 F.2d 310 (9th Cir. 1989), which held that venue dictated by 9 USC Sec. 10 is mandatory, but, while the appeal was pending, Cortez Byrd Chips v. Bill Harbert Constr. Company, 120 S.Ct. 1331 (2000), held that the venue provisions of Sec. 10 are permissive, not mandatory;  thus, as venue in the Northern District of California may have been proper, the USCA vacated the district court's order and remanded for reconsideration in light of Cortez Byrd Chips.  Trott, Thomas, and Berzon, Circuit Judges.  Per Curiam.  P. Johnson of Oakland, CA, for the appellant;  P. Renne of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  NATIVE AMERICAN LAW:  San Xavier Development Auth. v. Charles, 99-16158 (9th Cir. Jan. 29, 2001).  A lessee of allotted tribal land lacks standing to sue under the Nonintercourse and General Allotment Acts to challenge a conveyance of allotted land.  B. Fletcher, O'Scannlain (author), and Gould, Circuit Judges.  L. Barassi of Tucson, AZ, for the plaintiff;  N. Garn of Tucson, AZ, for the defendant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  IMMIGRATION LAW:  Barahona-Gomez v. Reno, 97-15952 (9th Cir. Opinion filed Feb. 11, 1999; Supplemental Opinion and Dissent filed Jan. 10, 2001).  Having reconsidered its earlier decision in this case in light of the subsequently decided Reno v. American-Arab Anti Discrimination Committee, 525 US 471 (1999), the USCA reached the same conclusion has it had earlier:  the district court had jurisdiction under 8 USC Sec. 1252(g) to issue a preliminary injunction enjoining application of two directives issued by the Board of Immigration Appeal Chairman and the Chief Immigration Judge;  dissenting, Judge Hall thought the plain language of Sec. 1252(g) deprived the district court, and the USCA, of jurisdiction over the instant matter, and that American-Arab only strengthened the argument that the district court did not have jurisdiction over the issue of executive adjudication.  Hall (dissenting) and Thomas (author), Circuit Judges.  M. Gluck of Washington, DC, for the defendants-appellants;  M. Van Der Hout of San Francisco, CA, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  IMMIGRATION LAW:  USA v. Medina, 99-50566 (9th Cir. Jan. 3, 2001).  The absence of an audiotape or transcript of a prior deportation proceeding does not compel dismissal of a prosecution for illegal reentry after deportation under 8 USC Sec. 1326, as the government is not required to prove the element of deportation with a tape recording and the lack of a tape or transcript does not deprive the alien of the opportunity to collaterally attack the deportation.  D.W. Nelson, Brunetti (author), and Kozinski, Circuit Judges.  G. Siddell of San Diego, CA, for the defendant-appellant;  AUSA N. Spiegel of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  IMMIGRATION LAW:  Castro-Cortez v. INS, 99-70267 (9th Cir. Jan. 23, 2001).  Immigration and Naturalization Act Sec. 241(a)(5), which allows the INS to reinstate prior orders of removal, does not apply to aliens who reentered prior to April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996;  dissenting, Judge Fernandez said he could not agree with the contention that in enacting Sec. 241(a)(5), which was clearly designed to deny benefits to aliens who had already been removed, aliens who come back into the United States before the effective date of the provision are not affected by it but may continue to reap the benefits of their wrongdoing because Congress did not declare that Sec. 241(a)(5) applies retroactively.  Canby, Reinhardt (author), and Fernandez (dissenting), Circuit Judges.  M. Van Der Hout of San Francisco, CA, for the petitioners;  T. McIl-mail of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  IMMIGRATION LAW:  Sheviakov v. INS, 99-70743 (9th Cir. Jan. 26, 2001).  Under Ninth Circuit Rule 25-2, when a petition is mailed to the court's post office box, and tangible evidence (such as a notification slip) exists to prove that the petition arrived at that address on a certain day, then the clerk shall treat the petition as received on that day for the purposes of Federal Rule of Appellate Procedure 25(a)(2).  Kozinski and Kleinfeld (author), Circuit Judges, and Schwarzer, District Judge.  T. Walsh of Beaverton, OR, for the petitioners;  D. Couvillon of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  IMMIGRATION LAW:  Molina-Morales v. INS, 98-71410 (9th Cir. Jan. 19, 2001).  An alien who has been beaten and threatened by associates of a political party leader whom the alien has accused of raping his aunt has not been persecuted on account of a political opinion, actual or imputed;  dissenting, Judge Fletcher acknowledged that this is a close case but thought the petitioner had alleged facts sufficiently compelling to support a claim of persecution on account of imputed political opinion and to require a remand back to the BIA for a credibility determination.  B. Fletcher (dissenting), Hall, and Tashima (author), Circuit Judges.  M. Rios of Seattle, WA, for the petitioner;  N. Schwarz of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  IMMIGRATION LAW:  Khan v. INS, 99-71062 (9th Cir. Jan. 26, 2001).  Consular certification is not the exclusive method for authenticating documents submitted in support of an asylum claim.  Browning, Pregerson, and Beezer, Circuit Judges.  Per Curiam.  J. Moorman of Los Angeles, CA, for the petitioner;  H. Phillips of Washington, DC, for the respondent.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  IMMIGRATION LAW / EVIDENCE:  Kaur v. INS, 99-70395 (9th Cir. Jan. 24, 2001).  When an asylum officer makes an adverse credibility finding and denies the petitioners' request for asylum and withholding of deportation, based on resource materials, those materials become essential documentary evidence at a hearing before an immigration judge.  D.W. Nelson, Thompson (author), and Trott, Circuit Judges.  J. Kaufman of San Francisco, CA, for the petitioner;  C. Ferrier of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  EVIDENCE:  USA v. Vallejo, 99-50762 (9th Cir. Jan. 16, 2001).  Expert testimony regarding the structure and operations of drug trafficking organizations is inadmissible where the defendant is not charged with a conspiracy to import drugs or where such evidence is not otherwise probative of a matter properly before the court.  B. Fletcher, Thomas, and Wardlaw (author), Circuit Judges.  T. Burns of San Diego, CA, for the defendant-appellant;  AUSA J. Parmley of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  SEARCH & SEIZURE:  USA v. Hammett, 00-10065 (9th Cir. Jan. 10, 2001).  A misstatement in a supporting affidavit did not invalidate a search warrant where it was highly probable that the error was caused by miscommunication between the officer who prepared the affidavit and the officer who made related observations.  Hug, Trott (author), and Wardlaw, Circuit Judges.  AFPD A. Silvert of Honolulu, HI, for the defendant-appellant;  AUSA K. Sorenson of Honolulu, HI, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  SEIZED PROPERTY:  In re 3021 6th Avenue North, Billings, MT, 00-30181 (9th Cir. Jan. 18, 2001).  Where criminal proceedings have not commenced against a defendant at the time the district court issues an order denying the defendant's motion for the return of property seized as part of a criminal investigation but the defendant is subsequently indicted, the court of appeals loses jurisdiction over and appeal of the district court order.  B. Fletcher (author) and Fisher, Circuit Judges, and Schwarzer, District Judge.  R. Stephens of Billings, MT, for the claimant-appellant;  AUSA J. Seykora of Billings, MT, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)  PLEA AGREEMENTS:  USA v. Camarillo-Tello, 00-30029 (9th Cir. Jan. 3, 2001).  When the government and the defendant enter into a plea agreement, the government must inform the sentencing court of all its reasons for making a recommendation favorable to the defendant as outlined in the plea agreement.  B. Fletcher (author) and Fisher, Circuit Judges, and Schwarzer, District Judge.  AFPD M. Filipovic of Seattle, WA, for the defendant-appellant;  AUSA D. Campbell of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  BANK ROBBER:  USA v. Holloway, 99-10385 (9th Cir. Jan. 5, 2001).  The government failed to prove an essential element of the federal crime of armed bank robber under 18 USC Sec. 2113(a) and (d) when it failed to prove that the state-chartered credit union robbed was insured by the National Credit Union Administration Board as required by 18 USC Sec. 2113(g).  Schroeder, Noonan (author), and W. Fletcher, Circuit Judges.  A. Wachtel of San Francisco, CA, for the defendant-appellant;  AUSA I. Ramsey of Oakland, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  MAIL FRAUD:  USA v. Crawford, 99-50803 (9th Cir. Jan. 23, 2001).  The prosecutor did not need to prove beyond a reasonable doubt that a painting stolen from a university was owned by the university so long as the defendant knew that he did not own the painting;  dissenting, Judge Tashima thought the majority had read the intend to defraud someone, an essential element of fraud, out of the crime of fraud and that the evidence was insufficient to prove that essential element in the instant case.  Tashima (dissenting) and Tallman, Circuit Judges, and Alsup (author), District Judge.  G. Ivens of Glendale, CA, for the defendant-appellant;  AUSA J. Gordon of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  WRIT OF AUDITA QUERELA:  USA v. Valdez-Pacheco, 00-30006 (9th Cir. Jan. 23, 2001).  A federal prisoner cannot challenge a conviction or sentence with a petition for a writ of audita querela if the challenge could have been raised in Sec. 2255 motion.  Trott, Graber, and McKeown, Circuit Judges.  Per Curiam.  M. Valdez-Pacheco pro se;  AUSA F. Noonan of Portland, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  USE OF  FALSE IDENTIFICATION AT BORDER:  USA v. Suarez-Rosario, 00-50373 (9th Cir. Jan. 29, 2001).  Proof of true identity is not an essential element of the crime of making a false statement to obtain a passport under 18 USC Sec. 1542.  Trott, Thomas (author), and Berzon, Circuit Judges.  R. Garcia of San Diego, CA, for the defendant-appellant;  AUSA M. Wheat of San Di-ego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  PROSECUTORIAL MISCONDUCT:  Commonwealth of the Northern Mariana Islands, 99-10552 (9th Cir. Jan. 10, 2001).  A prosecutor's admitted, unjustified pretrial decision not to investigate concrete documentary evidence suggesting that the prosecution's accomplice witnesses were conspiring to testify falsely against the defendant is a violation of due process.  Hug, Trott (author), and Wardlaw, Circuit Judges.  G. Long of Saipan, MP, for the defendant-appellant;  K. Lynch of Saipan, MP, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  PROSECUTORIAL MISCONDUCT:  USA v. Tam, 99-10346 (9th Cir. Jan. 24, 2001).  A prosecutor's recommendation to a jury to use a secret ballot to select a foreperson constituted "trial error" (error occurring "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented") rather than "structural error" (such as would affect the framework within which the trial proceeds).  B. Fletcher (author), O'Scannlain, and Gould, Circuit Judges.  S. Luban of Berkeley, CA, for the defendant-appellant;  AUSA R. Bender of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  DEFENSES:  DePetris v. Kuykendall, 99-56126 (9th Cir. Jan. 26, 2001).  The trial court violated the defendant's constitutional right to present the defense of "imperfect self-defense" when it precluded from evidence her husband's handwritten journal and her testimony about how having read the journal contributed to her belief that her husband's threats to kill her and her baby were to be taken seriously;  this evidence addressed the defendant's credibility and state of mind at the time she killed her husband, both central issues in the case;  dissenting in part, Judge Noonan noted that under California law at the moment the defendant killed her husband she had to believe she would then at that moment be killed, if she did not kill first, but she was outside the bedroom where he lay when she prepared the gun for action by removing the safety and, by her own testimony, in no imminent danger from her husband;  the excluded evidence could not establish or corroborate that at the moment of the killing the defendant thought her husband was about to kill her.  Browning, Noonan (dissenting in part), and Silverman (author), Circuit Judges.  C. Gardner of San Francisco, CA, for the appellant;  E. Share of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

49)  RIGHT TO COUNCIL:  Pawlyk v. Wood, 98-35026 (9th Cir. Jan. 19, 2001).  The defendant's rights to counsel and due process were not violated where the state compelled the disclosure to the prosecutor and jury an evaluation performed by an appointed psychiatrist, who had not been identified as a defense witness, after the defendant had identified a second appointed psychiatrist as a defense witness;  dissenting, Judge Canby thought the defendant's due process rights were violated when the prosecution introduced the testimony of the psychiatrist, whom the defense had selected as a defense psychiatrist but chose not to offer as a witness:  Judge Canby thought that a psychiatrist made available by the state to assist the defense is not to be treated as a run-of-the-mill witness;  rather, due process requires recognition of his position as a member of the defense team.  Canby (dissenting) and Graber, Circuit Judges, and George (author), District Judge.  AFPD M. Filipovic of Seattle, WA, for the petitioner-appellant-appellant;  T. Young of Olympia, WA, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

50)  SENTENCING:  USA v. Stephens, 99-30228 (9th Cir. Jan. 16, 2001).  A prior conviction for carrying a firearm in connection with a drug offense in violation of 18 USC Sec. 924(c) constitutes a "violent felony" for purposes of sentencing under the Armed Career Criminals Act;  dissenting, Judge Reinhardt thought that just as the offense of being a felon in possession of a gun does not qualify as a crime of violence as such conduct does not pose a "substantial risk" that physical force will be used, the conduct proscribed by Sec. 924(c) should not qualify as a crime of violence absent clearer evidence that Congress intended that result.  D.W. Nelson (author), Reinhardt (dissenting), and Thomas, Circuit Judges.  M. Claman of Anchorage, AK, for the defendant-appellant;  AUSA M. Rosenbaum of Anchorage, AK, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

51)  SENTENCING:  USA v. Jeter, 99-50623 (9th Cir. Jan. 3, 2001).  On an issue of first impressions, the USCA held that Sentencing Guideline Sec. 3E1.1 does not authorize a downward adjustment of one level for a partial or late acceptance of responsibility.  D.W. Nelson (author), Brunetti, and Kozinski, Circuit Judges.  T. Emblem of Escondido, CA, for the defendant-appellant;  AUSA R. Pietrofeso of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

52)  SENTENCING:  USA v. Garcia-Sanchez, 00-30125 (9th Cir. Jan. 23, 2001).  A new trial with new jury instructions is not required where a district court's sentence exceeds the mandatory statutory minimum of ten years by one month.  Goodwin (author), Reavley, and McKeown, Circuit Judges.  L. Glenn of Spokane, WA, for the defendant-appellant;  AUSA T. Ohms of Spokane, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

53)  SENTENCING:  USA v. Morgan, 99-10509 (9th Cir. Jan. 31, 2001).  A defendant's sentence may be enhanced for permanent or life-threatening injuries where he locked his victim in a car trunk for many hours, denied him fresh air, food, water, medical care and heat, beat him with a metal pipe, and then dumped him in a ditch in a remote area on a freezing night, covered him with snow and debris, and left him to die.  Goodwin, Graber (author), and Paez, Circuit Judges.  AFPD M. Powell of Reno, NV, for the defendant-appellant;  AUSA B. Sullivan of Reno, NV, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

54)  SENTENCING:  USA v. Christakis, 99-55298 (9th Cir. Jan. 30, 2001).  It is an actual conflict of interest for an attorney to simultaneously represent co-conspirators where one possesses information that could be used to implicate the other in exchange for a reduced sentence.  Pregerson (author), Noonan, and Silverman, Circuit Judges.  A. Montemurro of Chicago, IL, for the defendant-appellant;  AUSA D. Wright of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

55)  CAPITAL CASES:  Hoffman v. Arave, 99-99002 (9th Cir. Jan. 3, 2001).  The petitioner's ineffective assistance of counsel claims were procedurally defaulted under Idaho Code Sec. 19-2719, but the USCA reversed the district court's ruling that Sec. 19-2719 was "adequate" to preclude federal review of the underlying constitutional claim;  the USCA also reversed the district court's finding that the petitioner's Sixth Amendment right to counsel was not violated by the Idaho trial court's refusal to allow petitioner's attorney to be present at the presentence interview conducted by a state probation official.  Pregerson (author), W. Fletcher, and Gould, Circuit Judges.  J. Fisher of Moscow, ID, for the petitioner-appellant;  L. LaMont of Boise, ID, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

56)  HABEAS CORPUS:  USA v. Mikels, 98-16479 (9th Cir. Jan. 5, 2001).  The USCA has no jurisdiction to hear an appeal of habeas corpus procedure where no certificate of appealability has been issued.  Kleinfeld (author), Tashima, and Berzon, Circuit Judges.  H. Torbet of San Francisco, CA, for the defendant-appellant;  AUSA G. Cardona of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

57)  PRISONERS / TORTS:  Streit v. Los Angeles, 99-55897 (9th Cir. Jan. 12, 2001).  Since in implementing its policy of checking prisoner release records for "wants and holds," the Los Angeles Sheriff's Department acts for the County of Los Angeles in its capacity as administrator of the jails, both the LASD and the County are subject to liability for over-detention; the LASD is a "public entity" separately suable in federal court.  Pregerson, Ferguson, and Wardlaw, Circuit Judges.  D. Lawrence of Pasadena, CA, for the defendants-appellants;  J. Burton of Pasadena, CA, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  RESTRAINT OF TRADE:  Beauty Center, Inc. v. Matrix Essentials, Inc., 99-16038 (9th Cir. Jan. 5, 2001) (unpublished). Kozinski, Hawkins, and Berzon, Circuit Judges.
       Affirming the judgment of the District Court for Nevada, Judge Rawlinson presiding, the USCA found that no evidence supported Beauty Center's claims of civil conspiracy and conspiracy in restraint of trade.  Rather, the only plausible explanation for the termination of Beauty Center's at-will contract was that Matrix Essentials intended to enforce its restriction on the resale of certain products.  Beauty Center's misrepresentation, estoppel, and breach of contract claims were also without merit.  Beauty Center breached the contract by offering to sell and by selling Matrix products retail in sizes intended only for salon use.  The intentional interference with prospective economic advantage claim failed as there was no evidence that Matrix took improper or illegal actions.  As for the claim of intentional interference with contract, the USCA found it undisputed that Phoenix Beauty had agreed not to sell Matrix products to "any salon or individual who has in the past diverted or reasonably has been suspected of diverting" such products.  The fact that Matrix asked Phoenix Beauty to honor that agreement did not amount to unlawful interference with contract.  Finally, the USCA found inadequate Beauty Center's evidence that Matrix made slanderous statements about Beauty Center in connection with the termination of sales.

2)  TAXATION:  Nordbrock v. USA, 00-15911 (9th Cir. Jan. 24, 2001) (unpublished). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
        The Nordbrocks appealed pro se an order of the District Court for Arizona, Judge Marquez presiding, that denied their second motion to reconsider the merits of their consolidated tax action against the United States.  The USCA lacked jurisdiction to review the district court dismissal of the Nordbrocks' consolidated tax actions.  However, it did have jurisdiction under 28 USC Sec. 1291 to review the district court's dismissal of the Nordbrocks' second motion for reconsideration.  In that motion, the Nordbrocks requested a new trial on two grounds.  First, they offered an IRS document dated February 18, 2000, as newly discovered evidence that would have changed the outcome of the case.  The district court did not abuse its discretion in rejecting that claim.  Second, the Nordbrocks argued that Judge Marquez should have recused himself from the consolidated action due to personal bias stemming from a lawsuit Mr. Nordbrock filed against the judge and other defendants in 1983.  28 USC Secs. 144 and 455 provided for disqualification of judges for personal bias or prejudice only on a timely motion.  Under USA v. Rogers, 119 F.3d 1377 (9th Cir. 1997), a party having information that raises a possible ground for disqualification cannot wait for an unfavorable judgment before bringing the information to the court's action.  It is clear that the Nordbrocks' contention concerning the question whether Judge Marquez should have disqualified himself was not properly before the USCA.  The USCA thus affirmed.

3)  TAXATION:  Olsen v. CIR, 99-71419 (9th Cir. Jan. 24, 2001) (unpublished). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
       The Olsens appealed pro se a Tax Court order granting the IRS's motion for entry of judgment based upon the parties settlement agreement in the Olsens' action for a redetermination of a tax deficiency in 1995.  The USCA affirmed.  The Tax Court's enforcement of a stipulation is reviewed for an abuse of discretion.  A stipulation is treated as a conclusive admission by the parties to the stipulation unless otherwise permitted by the court or agreed upon by the parties.  Tax Ct. R. 91(e).  The Tax Court will not permit a party to a stipulation to qualify, change, or contradict a stipulation in whole or in part, unless manifest injustice will result.  Bail Bonds by Marvin Nelson, Inc. v. CIR, 820 F.2d 1543, 1546 (9th Cir. 1987).  Here, the Olsens negotiated the terms of, and stated that they agreed to, the stipulations that were read into the Tax Court's record.  In addition, the Olsens presented insufficient evidence that their consent was procured by fraud, coercion, or any misconduct by the government, and the Olsens presented no evidence of any other condition that would render enforcement of the stipulated agreement manifestly unjust.  The Tax Court thus did not abuse its discretion in entering the decision pursuant to the stipulated agreement.

4)  TAXATION:  Briggsdaniels v. CIR, 00-70710 (9th Cir. Jan. 25, 2001) (unpublished). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
       The Tax Court sustained the Commissioner of Internal Revenue's determination of deficiencies on Briggsdaniels' 1995 and 1965 federal income tax returns.  Briggsdaniels appeal.
        The USCA affirmed, noting that absent a showing of clear error, it cannot overturn the Tax Court's findings.  Wolf v. CIR, 4 F.3d 709 (9th Cir. 1993).  Briggsdaniels claimed that the Tax Court erred in sustaining the CIR's determination that he failed to qualify for head of household filing status under 26 USC Sec. 2(b), the earned income credit under 26 USC Sec. 32(a), and dependency exemptions for his sons under 26 USC Sec. 151(c)(1).  The Tax Court determined that Briggsdaniels failed to demonstrate that he had provided over half the cost of maintaining a household that for more than one-half of 1995 or 1996 was the principal residence for his sons.  It did not commit clear error in ruling that the CIR had acted neither arbitrarily nor erroneously in determining that Briggsdaniels was ineligible in 1995 and 1996 for head of household filing status, dependency exemptions for the sons, or the earned income credit.  Finally, in a pleading styled a "Motion to Dismiss and or Motion for Reversal and or Motion to Restrain Assessment or Collection," Briggsdaniels claims for the first time on appeal that the CIR's assessment of a tax deficiency violated his First, Fourth, Fifth, and Eighth Amendment Rights.  Although the USCA noted that it could review an issue raised for the first time on appeal when it presents no factual issues and is purely one of law, such an issue should not be decided where it would prejudice the other party.  Kimes v. Stone, 84 F.3d 1121 (9th Cir. 1996).  The CIR had no opportunity to address the factual aspects of Briggsdaniels' constitutional claims before the Tax Court.  Because Briggsdaniels' presented no excuse for his failure to raise his constitutional arguments earlier, the USCA declined to exercise its discretion to consider them.

5)  TAX FRAUD PENALTIES:  Christianson v. CIR, 99-70911 (9th Cir. Jan. 11, 2001) (unpublished). Goodwin, Hug, and Pregerson, Circuit Judges.
        Christianson appealed a Tax Court decision affirming the government's assessment of tax fraud penalties against her under 26 USC Secs. 6653(b) and 6651(f).  She maintained that the Tax Court erred in applying such penalties because the government failed to carry its burden of proving fraud by clear and convincing evidence.  Although the USCA agreed that the Tax Court correctly noted the "badges of fraud" that the Circuit has previously identified to infer fraudulent intent, the facts did not show clear and convincing evi-dence of fraud on Christianson's part.  The USCA thus reversed the decision of the Tax Court allowing fraud penalties.

6)  BANKRUPTCY: In re Poole, 99-16312 (9th Cir. Jan. 25, 2001) (unpublished).  Thompson, O'Scannlain, and Tashima, Circuit Judges.
         The Bankruptcy Appellate Panel affirmed the Bankruptcy Court's finding that property fraudulently transferred by Poole, the debtor in the underlying case, actually belonged in his bankruptcy estate.  But, the BAP reversed the Bankruptcy Court's finding that the stature of limitations for the avoidance of one of the fraudulent transfers was equitably tolled.
        The USCA affirmed in part and reversed in part.  The Bankruptcy Court did not err in including various assets transferred to other entities in Poole and Pool, Inc.'s estates.  Poole's use and enjoyment of items of property nominally owned by others, his active involvement in running Delta Marine, and Brix's understanding that Delta Marine and Poole, Inc. were essentially the same company support the court's conclusion that Poole had "at least equitable interest" in the numerous items of property, including the revenue earned under the Brix / Delta Marine contract.  The USCA thus affirmed the decision to include all the disputed items of property in the bankruptcy estates.  Moreover, the Bankruptcy Court's use of the phrase "equitable interest" indicates that the court included the property under 11 USC Sec. 541(a)(1), which includes in the bankruptcy estate "all legal or equitable interests of the debtor in property as of the commencement of the case."  The USCA thus rejected Hannah's argument that the court relied only on 11 USC Sec. 541(a)(3) in order to include the fraudulent transferred property in the estates.  Because the property was properly included in the bankruptcy estates under Sec. 541(a)(1), the issue of whether the statute of limitations in 11 USC Sec. 546, for bringing an action to avoid a fraudulent transfer, was equitably tolled does not affect the conclusion that the assets are property of the bankruptcy estates.  The Bankruptcy Court's money judgment against Poole and Hannah was predicated on revenue generated by the Brix contract, minus the proceeds from the sale of items purchased with that revenue (e.g., the Kenworth truck, the yacht, and the airplane), and minus money in the Smith Barney accounts.  The BAP reversed that money judgment because it concluded that the Bankruptcy Court abused its discretion in tolling the stature of limitations.  The stature of limitations, however was inapplicable because the proceeds that comprised the money judgment were generated from the Brix contract and those proceeds remained property of the bankruptcy estate under Sec. 541(a)(1).  It was thus unnecessary to bring them back into the estate by pursuit of fraudulent transfers under Sec. 501(a)(3).

7)  BANKRUPTCY: Nugent v. American Broadcasting System, Inc., 99-17444 (9th Cir. Jan. 5, 2001) (unpublished).  Schroeder, Hall, and W. Fletcher, Circuit Judges.
       The Bankruptcy Court found that the debtors' confirmed plan of reorganization barred the constructive trust claim that the Nugents sought to press against the debtors in a lawsuit filed in federal district court. The Bankruptcy Appellate Panel affirming.
         The USCA affirmed.  It rejected the debtors' claim that three district court orders entered after the Nugents filed their notice of appeal rendered the Nugents' appeal moot.  Although the August 5, 1999 Emergency Stay Order and the October 19, 1999 Mootness Order resulted in a distribution of funds from the bankruptcy estate, the Nugents' constructive trust claim provided an alternate claim against the remaining funds.  Because the USCA could fashion effective relief as to the remaining $2.9 million, the appeal was not moot.  However, the USCA agreed with the Bankruptcy Court's finding that under 11 USC Sec. 1141, the debtors' confirmed plan of reorganization was final and binding on the Nugents, and that res judicata barred the Nugents' constructive trust claim.  Once a bankruptcy plan is confirmed, it is binding on all parties and all questions that could have been raised pertaining to the plan are entitled to res judicata effect.  A creditor who does not wish to be bound by the plan should object to the confirmation of the plan.  The Nugents failed to challenge the debtors' confirmed plan of reorganization on direct appeal.  That plan is now final and binding on the debtors and creditors, including the Nugents.  Although the Nugents' constructive trust claim properly could have been raised in the Bankruptcy Court, the Nugents failed to raise it in that court.  The Nugents did not claim that the Bankruptcy Court was unable or unwilling to address their constructive trust claim.  The plan specifically dealt with the proceeds of the sale of the radio stations, the same funds upon which the Nugents now seek to impose a constructive trust.  The plan provided that the proceeds would be placed in the Recovery Fund and distributed among the various creditors.  The Plan specifically addresses the claims of the Nugents and makes no provision for a constructive trust claim over the entire sale proceeds.  Although the plan establishes a reserve fund for the Nugents and the other claimants with disputed claims, the plan does not reserve the entire proceeds for the Nugents as a constructive trust claim would contemplate.  What the Nugents are attempting to do with their constructive trust claims is carve out a larger share of the available assets than they would otherwise receive under the plan.  If the constructive trust were imposed, it would substantially impair the rights of other creditors.  The Nugents did not challenge the plan on direct appeal, and res judicata bars their collateral attack.  The Nugents argued that their constructive trust claim is not an impermissible collateral attack on the confirmed plan as under Torres v. Eastlick, 767 F.2d 1573 (9th Cir. 1985), their constructive trust claim "merely" seeks to determine that assets are in the bankruptcy estate.  The USCA found the argument unavailing.  Under Torres, property that is subject to a constructive trust is not necessarily excluded from the bankruptcy estate.  Torres stands for the proposition that "while state law must be the starting point in determining whether a constructive trust may arise in a federal bankruptcy case, that law must be applied in a manner not inconsistent with federal bankruptcy law."  Moreover, Torres dealt with a pre-confirmation constructive trust claim;  the case does not address whether the debtors' confirmed plan bars the Nugents' constructive trust claim post-confirmation.  The Nugents next argued that the confirmed plan is not res judicata as to their constructive trust claim as their claim was actually pending pre-confirmation.  The Nugents argue that it is clear that their constructive trust claim was pending pre-confirmation in their Fourth Amended Complain because the debtors filed and won a motion for summary judgment on the constructive trust claim.  However, the summary judgment order to which the Nugents refer is the 1999 Summary Judgment Order based on the Fifth Amended Complaint, which was filed after the Plan was confirmed, not before.  Moreover, as the Bankruptcy Court discussed, the parties' communications indicate that the Fourth Amended Complaint does not seek the imposition of a constructive trust on the assets of the bankruptcy estates.  Finally, the Nugents maintained that their constructive trust claim was contemplated by the Bankruptcy Court's 1995 Stay Modification Order allowing the Nugents' district court litigation to "proceed to final liquidation."  The USCA agreed, however, with the Bankruptcy Court's conclusion that the automatic stay was modified only as to the claims that were actually pending in the district court litigation as of the date of the order modifying the stay.  At the time of the Stay Modification Order, the Nugents' Third Amended Complaint was the operative complaint.  The Third Amended Complaint sought only damages and an accounting of stock;  it did not include a constructive trust claim.  The Nugents failed to explain how the Bankruptcy Court could lift the automatic stay as to the constructive trust claim when, at the time of its order, the Bankruptcy Court had no idea that the claim existed.

8)  INSURANCE LAW:  Investors Equity Life Insurance Company of Hawaii, Ltd. v. ADM Investor Services, Inc., 98-15140 (9th Cir. Jan. 12, 2001) (unpublished). Hug, Trott, and Wardlaw, Circuit Judges.
         The District Court for Hawaii, Judge Ezra presiding, affirmed the American Arbitration Association's award of $6.9 million in damages to the Insurance Commissioner of the State of Hawaii, as Liquidator for Investors Equity Life Insurance Company ("IEL").  ADM Investor Services, Inc. appealed.
         The USCA affirmed.  First, the district court did not err in finding that in the arbitration proceedings the Liquidator asserted derivative claims on behalf of IEL, rather than independent claims belonging to IEL's creditors, policyholders, and annuitants.  The Liquidator specifically sought recovery of trading losses, commissions, and fees suffered by IEL.  It was authorized to prosecute all claims on behalf of the insurer, IEL.  The arbitration award was not directly awarded to IEL's creditors, policyholders, and annuitants.  Their recovery, if any, turned on the outcome of independent liquidation proceedings.  The district court thus correctly concluded that the AAA did not act in manifest disregard of the law in finding that the Liquidator was entitled to assert a claim against ADM.  Second, the district court alternatively found that the issue of whether the Liquidator was entitled to assert derivative claims on behalf of IEL's creditors, annuitants, and policyholders was a procedural issue to be determined by the AAA.  The USCA agreed.  The general rule is that once it is determined that the parties are obligated to submit the subject matter of a dispute to arbitration, "procedural" questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.  Because the issue of whether a particular person or entity is a proper party to the arbitration is a procedural issue to be determined by the arbitrators, the district court did not err.  Nor did it err in finding that the AAA did not act with manifest disregard of the law when it applied Hawaii law rather than abid-ing by the contractual choice-of-law provision.  Although parties are generally entitled to select the law which applies to contractual claims, the Ninth Circuit has expressly determined that tort claims are not governed by a contractual choice-of-law provision.  Here, the AAA awarded damages to IEL based on a finding that ADM negligently handled IEL's account.  The district court thus correctly held that the AAA did not act with manifest disregard of the law in applying Hawaii law.  The district court also correctly found that the AAA did not act with manifest disregard of law in hold ADM liable for negligence. ADM maintained that the duty owed by a commodities broker holding a non-discretionary account is an "exceedingly narrow one, consisting at most of a duty to properly carry our transactions ordered by the customer.  The arbitrators found as a factual matter, however, that ADM was aware that IEL's trading in the ADM account was speculative and not a bona fide hedge.  While ordinarily a broker may rely on a hedge letter from its custom-ers, Chicago Board of Trade Rule 431.02.07, it may not do so where there is "reason to suspect otherwise."  The Panel found "immediate, repeated, and overwhelming" evidence of speculation known to ADM's account officers; most significantly that while IEL's net worth was only $6 million, the "hedge" account had an embedded loss of almost $18 million at the time it was opened.  The Circuit has held that a broker such as ADM can be found liable for not supervising its customers.  During the arbitration proceeding, even ADM's experts testified that there is a negligence cause of action in this case.  The district court thus did not err in holding that the AAA did not act with manifest disregard of the law.  Finally, the district court did not err in confirming the AAA's award of pre-judgment interest in the amount of 10% per annum.  Because the award of 10% per annum pre-judgment interest was within the fixed statutory maximum under Hawaii law, the AAA was authorized to make this award.

9)  INSURANCE LAW:  General Accident Insurance Company of America v. Resolution Trust Corp., 98-56738 (9th Cir. Jan. 18, 2001) (unpublished).  Rymer, T.G. Nelson, and Wardlaw, Circuit Judges.
         The USCA affirmed in part and reversed in part the judgment of the District Court for the Southern District of California, Judge Brewster presiding.  First, it found that the conflicting "excess insurance" clauses in First National Insurance Company of America's ("First National") and General Accident Insurance Company of America's ("General") policies did not limit First National's liability to the FDIC.  Under California law, conflicting "excess insurance" clauses cancel each other out, and the insurers are forced to prorate the loss between them.  However, recent California Court of Appeal decisions indicate that the rule of proration between insurers governs only the rights of an insurer which has undertaken the defense or indemnification of the common insured to seek contribution from a co-insurer and does not limit the insurer's liability to its insured.  Applying California law, the USCA found that First National was liable to the FDIC for the full amount of its policy limit—$1 million.  The district court thus erred in concluding that First National's $1 million payment to the FDIC exceeded its liability under the policy, and its judgment ordering restitution on that basis had to be reversed.  Second, the clear and explicit language of the 1992 agreement obligated the FDIC to reimburse First National only if the FDIC recovered from General.  Because the FDIC did not recover from General, the FDIC owed nothing under the 1992 agreement and summary judgment for the FDIC on First National's breach of contract claim was proper.  Even if the FDIC's refusal to cooperate with General's investigation did not extinguish First National's right to seek contribution from General, First National did not assert this right when it was an intervenor in the General vs. FDIC action.  Instead, First National sought to intervene to enforce its subrogation rights under the 1992 agreement, which all parties agreed were extinguished by the USCA's prior order in this case.  Under California law, the right of contribution from a co-insurer is distinct and independent from the right to subrogation, and thus, the district court did not err in granting General's motion for judgment on the pleadings to dispose of First National's claim in intervention.

10)  INSURANCE LAW:  Chen v. Scottsdale Insurance Company, 99-55601 (9th Cir. Jan. 10, 2001) (unpublished). Pregerson, Noonan, and Silverman, Circuit Judges.
        The District Court for the Central District of California, Judge Hatter presiding, granted Scottsdale Insurance Company's motion for summary judgment and dismissed the Dans' motion for summary judgment. 
       The USCA affirmed.  On appeal, the Dans maintained that Scottsdale breached the covenant of good faith and fair dealing by settling another action, "the Tong action," and thereby exhausting the policy limits.  The USCA disagreed.  As California courts have explained, the implied covenant of good faith and fair dealing runs in favor of the insured;  thus, generally, third party claimants, such as the Dans, may not bring an action for the breach of the covenant or its duties.  However, under California Insurance Code Sec. 11580 a third party claimant who receives a "final judgment" against the insured becomes a third party beneficiary to the insurance contract and may sue directly on its provisions, including the covenant of good faith and fair dealing.  In this context, "final judgment" means a final disposition from the highest reviewing court, or if no appeal is taken, the judgment becomes final upon the expiration of the appeal period.  Here, the Dans' judgment against Soundtek had not yet become final for the purposes of Sec. 11580 when Scottsdale settled with the Tong plaintiffs on March 10, 1998, long before the expiration of the time for appeal of the Dans' judgment against Soundtek.  Lacking a final judgment, the Dans did not enjoy the rights and benefits under the policy.  Like third party claimants generally, Scottsdale did not owe the Dans a duty of good faith and fair dealing when it settled the Tong claim.

11)  INSURANCE LAW:  Nicholudis v. The Prudential Insurance Co. of America, 00-55662 (9th Cir. Jan. 9, 2001) (unpublished). Rymer, T.G. Nelson, and Wardlaw, Circuit Judges.
       The District Court for the Central District of California, Judge King presiding, entered summary judgment in favor of the Prudential Insurance Company of America.  Renee, Nick, and Eva Nicholudis appealed.
         The USCA affirmed.  The Nicholudises argue that because the policy was a "Medicare Supplement Policy," Prudential was prohibited from reducing Eva's benefits by more than 50% on account of her age.  Cal. Ins. Code Sec. 10291.5.  This appeal thus turned on whether the policy was a Medicare supplement policy.  The USCA concluded that it was not and was not transformed into one when Eva began receiving Medicare benefits in 1983.  Rather, the policy was a major medical policy with a Limited Medical Ex-pense Insurance provision triggered when the policyholder becomes Medicare eligible due to age.  It provides "Major Medical Expense Insurance," and was issued in 1976, nearly twenty years before Eva turned 65 and some seven years before she began receiving Medicare benefits due to her disability.  It was approved by the Commissioner of Insurance under the disability provisions of the Insurance Code, Cal. Ins. Code Sec. 10290, not under the provision for approving Medicare supplement plans, Cal. Ins. Code. Sec. 10195.45.  Moreover, the fact that Prudential continued to pay home nursing benefits after 1983, when Eva began receiving Medicare benefits, did not convert the policy into a Medicare supplement policy.  Finally, citing Peterson v. American Life & Health Ins. Co., 48 F.3d 404, 410-11 (9th Cir. 1995), the USCA concluded that, even if the policy were a Medicare supplement policy, the Nicholudises could not bring a private cause of action under Cal. Ins. Code Sec. 10291.5. 

12)  ERISA / LONG-TERM DISABILITY BENEFITS :  Wilborn v. American Express Group Disability Plan, 99-55575 (9th Cir. Jan. 16, 2001) (unpublished). T.G. Nelson and W. Fletcher, Circuit Judges, and Reed, District Judge.
         Wilborn's Long Term Disability ("LTD") benefits from American Express were terminated by Metropolitan Life Insurance Company ("MetLife"), a decision upheld by the American Express Benefits Appeal Review Committee ("BARC").  MetLife's decision rested upon its conclusion that Wilborn was not so disabled that he could not perform any gainful occupation for which he was "reasonably suited" as required by the LTD benefits plan.  Wilborn appealed the summary judgment for American express entered by the District Court for the Southern District of California, Judge Whelan presiding.
        The USCA reversed and remanded to the district court with instructions to remand to the BARC to conduct a full and fair review of Wilborn's claim.  At oral argument Wilborn conceded that the standard of review for purposes of appeal was abuse of discretion.  The USCA concluded that the district court did not properly apply that standard.  A court will find an abuse of discretion when the plan administrator makes a decision without any explanation, in a way that conflicts with the plain language of the plan, or a decision based upon clearly erroneous findings of fact.  A plan administrator's decision is not clearly erroneous just because it is contrary to evidence in the record.  A finding of clear error requires a court to possess a "definite and firm conviction that a mistake has been committed."  A decision should be upheld if it was "based upon a reasonable interpretation of the plan's terms and was made in good faith."  In this case, the BARC, operating under the mistaken belief that it had no authority to change MetLife's decision, did not exercise any discretion.  The BARC thus did not fulfill its fiduciary duties, and "no discretion was exercised by the body given the authority under the terms of the plan."  Nelson v. EG&G Energy Measurements Group, Inc., 37 F.3d 1384, 1399 (9th Cir. 1994).  This mistake on the part of BARC constituted a failure to provide Wilborn with a "full and fair review" as required by ERISA. 29 USC Sec. 1133(2).  According to the letter sent to Wilborn by Johnson on behalf of the BARC, "the Long Term disability benefit is an insured plan, meaning that all claim determinations made by Metropolitan Life are final and American Express has no contractual rights to change their decisions."  However, in his deposition, Johnson indicated that the plan covering Wilborn was actually a self-insured plan, in which case American Express had the authority and responsibility to review MetLife's decision.  The district court found it dispositive that Wilborn presented no evidence about how the mistake "wrongfully affected BARC's review process in any manner."  The USCA found that, in contrast to the district court's determination, Wilborn had presented evidence to demonstrate that the mistake on the part of BARC affected the review of his benefits termination.  Johnson's deposition demonstrates that the BARC made a critical mistake in its decision about Wilborn's benefits.  The committee was under the impression that Wilborn's plan was an insured plan, and BARC had no power to change the determination of MetLife.  Instead, Wilborn's self-insured plan reserved to BARC the authority and responsibility to review MetLife's decision.  Operating with this misunderstanding, BARC did not properly review MetLife's decision to terminate Wilborn's benefits.  Although the BARC was in possession of the additional evidence submitted by Wilborn, and although the committee may have looked at the evidence, BARC did not review the claim as required by ERISA, because it believed it had no power to change MetLife's decision.  The USCA declined to accept Johnson's reasoning on behalf of BARC that Wilborn's benefits would have been terminated even if BARC had reviewed the claims with the proper authority and responsibility.  Because BARC abrogated its fiduciary responsibilities to Wilborn and abused its discretion, the USCA reversed the district court's entry of summary judgment and remanded to the district court with instructions to remand, in turn, to the BARC to enable it to afford Wilborn a full and fair review of his benefits termination.

13)  ERISA / DISABILITY BENEFITS:  Flynn v. Paul Revere Insurance Group, 98-16733 (9th Cir. Jan. 30, 2001) (unpublished). Hug and Wardlaw, Circuit Judges, and Moskowitz, District Judge.
        The District Court for the Eastern District of California, Judge Burrell presiding, entered summary judgment for the Paul Revere Insurance Group in Flynn's action to recover under his disability policy on the ground that he is totally disabled as a result of an accident.  The district court ruled that Flynn's action was not filed within the applicable statutes of limitations for each of his two claims, and was thus time-barred.
       The USCA affirmed.  The district court correctly determined the applicable limitations period and the date of accrual for each claim.  The USCA noted that the Circuit has recently held that California's four-year statute of limitations for suits on written contracts, rather than the three-year period in Sec. 10350.11, applies in an action on a written contract to recover disability benefits.  Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Ins. Program, 222 F.3d 643 (9th Cir. 2000 (en banc).  The Wetzel court reasoned that Sec. 10350.11 is not itself a stature of limitations, but rather a contractual limitations period which operates "distinctly and apart from the statutory limitations period set by the state legislature."  Accordingly, Flynn's breach of contract claim is governed by the four-year limitations period in Cal. Code Civ. Proc. Sec. 337.  His claim for tortious breach of the duty of good faith and fair dealing is subject to the two-year statute of limitations in Cal. Code Civ. Proc. 339.  Each of Flynn's claims accrued in July 1992 when his right to accidental benefits was denied, not, as Flynn argues, in September 1996 when Paul Revere stopped making monthly disability payments.  Flynn argued for a "rolling accrual" rule based on the language of Sec. 10350.11.  Wetzel, however, specifically rejected the "rolling accrual" rule.  The USCA thus turned to California law to determine the accrual date for Flynn's claims.  Under California law, the statute of limitations began running when Flynn knew or had reason to know that his claim for disability payments under the accident provision had been denied.  It is undisputed that on July 23, 1992 a representative of Paul Revere notified Flynn that Paul Revere regarded his continuing disability to be the result of sickness, and that, therefore, it would pay benefits to him pursuant to the sickness provision of the policy.  The district court reasoned:  "At that point, [Flynn] knew or should have know of the factual basis for both of his claims:  that he had been injured in an automobile accident, that Paul Revere had nonetheless determined that his ongoing disability was attributable to sickness, and that he would receive payments only for the period allowed under the sickness provisions of the policy."  The USCA agreed with the district court that Paul Revere's conduct constituted an unconditional denial of Flynn's claims for benefits under the accident provision.  The statute of limitations thus ran on Flynn's claims on July 23, 1996 (breach of contract) and July 23, 1994 (breach of the covenant of good faith and fair dealing).  This action, filed on July 30, 1997, is time-barred.

14)  STOCK OPTIONS / ERISA:  Estate of Thomas McLoone v. Intel Corp., 99-35559 (9th Cir. Jan. 12, 2001) (unpublished). B. Fletcher and Fisher, Circuit Judges, and Schwarzer, District Judge.
       The Estate of McLoone brought this action against Intel Corporation alleging that Intel had not informed the Estate of its right to McLoone's stock options until the period to exercise the options had expired, despite the repeated inquires of the Estate administrators about the scope of the benefits to which the Estate was entitled.  The Estate maintained that Intel violated its fiduciary duty under ERISA.  Intel responded that it had no such duty with respect to the stock options because the options were not part of an ERISA plan.  The District Court for the Western District of Washington, Judge Burgess presiding, granted summary judgment in favor of Intel, and, finding that the Estate's amended complaint alleged no common law claims, dismissed the action in its entirety.
        The USCA affirmed in part, reversed in part, and remanded.  First, the stock options were not part of an ERISA plan.  Intel's plan under which the stock options were given to McLoone did not meet the statutory definition of either an employee welfare benefit plan or an employee pension benefit plan.  Although Intel's compensation handbook might give lay employees the impression that all benefits were covered by ERISA, the impression of laypersons does not establish whether ERISA coverage exists when the benefit does not even arguably fall within the purview of ERISA.  Second, the district court's finding that the Estate alleged no common law claims in its amended complaint functioned as a dismissal under Fed. R. Civ. P. 12(b)(6).  A dismissal without notice and without leave to amend was improper.  Under the Federal Rules' liberal notice pleading standards, the complaint may have been sufficient to plead common law claims, and in any event, the Estate should have been given the opportunity to amend its complaint.

15)  FEDERAL CONTRACTS / STANDING:  DeSciose, Jr. v. Delbalzo, 99-56800 (9th Cir. Jan. 5, 2001) (unpublished). O'Scannlain, Fernandez, Rawlinson, Circuit Judges.
        On remand, the District Court for the Central District of California, Judge Rea presiding, entered summary judgment for the Federal Aviation Administration ("FAA") and denied Vincent DeSciose, d/b/a Aero Realty Company ("Aero") injunctive relief.  At issue on appeal was whether the district court erred in granting the FAA summary jugment upon concluding that the FAA's decision to award a long-term lease to Odnum Two USA, Inc. ("Odnum Two") was not void ab initio.  The threshold issue was whether Aero had standing to challenge the contract awarded Odnum Two.  The Circuit has stated that to challenge a federal contract award Article III requires a disappointed bidder to demonstrate that if its bid had been fairly and honestly considered, there was a substantial chance that it would receive an award.  A minimum requirement for standing in this context is for the party challenging the award to have had a valid offer before the FAA at the time of the award.  Otherwise, the party would not have had a "substantial chance" to receive the award.  Federal Acquisition Regulation ("FAR") Sec. 15.208(b) provides: "Proposals, and modifications to them, that are received in the designated Government office after the exact time specified are late and shall be considered only in [certain circumstances]."  In a prior appeal, DeSciose v. Delbalzo (DeSciose I), 162 F.3d 1168 (9th Cir. 1998) (unpublished), the court rejected FAA claim that, not-withstanding FAR Sec. 15.208, General Services Administration Regulation ("GSAR") Sec. 552.270-3(a) allows the FAA to consider any offer received before the best and final offer deadline.  GSAR Sec. 552.270-3(a), as in force in 1991, provides that "any offer received at the office designated in the solicitation after the exact time specified for receipt of best and final offers will not be consid-ered."  The court held that there was no conflict between GSAR Sec. 552.270-3(a) and FAR Sec. 15.208, and noted that to the extent there's a conflict, FAR Sec. 15.208 controls.  Under the law of the case, a proposal or modification that is late cannot be considered except under certain circumstances.  Because Aero's Revised Amendment No. 2 to the Solicitation for Offers was filed late, its offer could only be considered if the circumstances of the offer met the requirements of FAR Sec. 52.215-1(c)(3)(i).  The record does not indicate that any of the exceptions apply.  Accordingly, Aero did not have a valid offer before the FAA at the time of the award to Odnum Two.  Without a valid offer before the FAA, there was no chance of Aero's receiving the contract award had it not been made to Odnum Two.  Thus, Aero lacked standing to challenge the award to Odnum Two.  The USCA vacated and remanded to the district court with instructions to dismiss for lack of jurisdiction.

16)  CONTRACTS:  Pacific Gas & Electric Co. v. Westinghouse Electric Corp., 99-55778 (9th Cir. Jan. 2, 2001) (unpublished). B. Fletcher, Thomas, and Wardlaw, Circuit Judges.
         The District Court for the Central District of California, Judge Baird presiding, granted summary jugment to CBS Corporation (formerly known as Westinghouse Electric Corporation) in PG&E's suit for breach of express contractual warranty due to metal cracking in turbine rotors it had purchases from Westinghouse.  The district court held that PG&E's claim was barred by the California statute of limitations.
       The USCA reversed.  Under California law, the applicable statute of limitations is four years from the time the breach is discovered.  Cal. Com. Code Sec. 2725(1) (West Supp. 2000).  The basic issue on appeal was when the cause of action for breach of warranty accrued.  Under California law, when "a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered. The district court erred in holding that PG&E should have discovered the breach in 1992.  Although PG&E expressed concern about the rotors' susceptibility to cracking and a possible breach of warranty, the record indicates that they could not have discovered whether the blades were structurally susceptible until one of them actually cracked.  PG&E first discovered cracks in 1994.  The claim accrued then.  The district court and Westinghouse incorrectly relied upon "mere suspicion" cases to find that PG&E's claim accrued in 1992.  Those cases involved non-warranty claims where plaintiffs had already discovered their injuries and should have discovered, but failed to discover, the exact cause of those injuries.  Here, as in Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co., 111 Cal. Rptr. 210 (Ct. App. 1973), no damage had occurred and no demonstrable defect had been uncovered.  In short, a cause of action for express warranty breach had not accrued.  Indeed, as Westinghouse nearly conceded at oral argument, PG&E probably would not have had a viable breach of warranty action if it had sued immediately upon mere suspicion.  If Westinghouse's theory were to prevail, PG&E would never have a remedy for the contractual promises for which it bargained.  PG&E did not sue for anticipatory breach;  it claimed relief for actual breach.  Because PG&E could not have discovered that the warranty was breached until a blade actually cracked, the USCA reversed and remanded for trial on the merits.

17)  SANCTIONS:  Anderson v. George, 99-56411 (9th Cir. Jan. 24, 2001) (unpublished). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
       The District Court for the Central District of California, Judge Letts presiding, ordered that Haney pay the defendants' attorneys' fees in an action where Haney represented plaintiff Anderson.  Haney appealed that order and also the district court's denial of her Fed. R. Civ. P. 60(b) motion for reconsideration.   The USCA affirmed.  In order to impose sanctions pursuant to its inherent powers, a district court must make an explicit finding that an attorney's conduct constitutes bad faith, unless the bad faith is patent from the record.  Primus Automotive Fin. Servs., Inc., 84 F.3d 1186 (9th Cir. 1996).  The district court did not abuse its discretion by ordering that Haney pay the defendants' attorneys' fees because the record sets forth sufficient evidence to support its decision.  The district court also did not abuse its discretion by denying Haney's Fed. R. Civ. P. 60(b) motion.

18)  COSTS:  Romano v. Ripley, 99-35757 (9th Cir. Jan. 24, 2001) (unpublished). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
       The District Court for Oregon, Judge Frye presiding, denied the defendants' amended bills of costs totaling over $116,000, filed after the defendants prevailed in a six-week jury trial.  United Parcel Service and other defendants appealed. 
       The USCA affirmed.  Pursuant to Fed. R. Civ. P. 54(d)(1), costs "shall be allowed as of course to the prevailing party unless the court otherwise directs."  This rule creates a presumption in favor of awarding costs to the prevailing party.  If a district court departs from that presumption, it must provide an explanation so that the appellate court can determine whether the district court abused its discretion.  In its order denying costs, the district court relied on the plaintiffs' good faith, reasonable chance of winning, and the disparity in resources between the parties.  The district court thus did not abuse its discretion by denying the defendants' motion for costs.

19)  ATTORNEYS' FEES:  Robinson v. Fitzer, 00-35311 (9th Cir. Jan. 25, 2001) (unpublished). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
       The District Court for the Western District of Washington, Judge Burgess presiding, entered an amended judgment dismissing Robinson's action with prejudice and awarding the appellees attorneys' fees and costs.  Robinson appealed.
 The USCA affirmed.  Because Robinson failed to file a timely notice of appeal as to the judgment dismissing his action, the USCA lacked jurisdiction to consider the dismissal.  However, in reviewing the district court's award of attorneys' fees for an abuse of discretion, it noted that a district court has discretion to award attorneys' fees to a prevailing defendant under 42 USC Sec. 1988, if, but only if, the action is found to be unreasonable, frivolous, meritless or vexatious.  A district court abuses its discretion if its fee award is based on an inaccurate view of the law or a clearly erroneous finding of fact.  Here, the district court found that Robinson's claims consisted of "vague conclusions," and that his complaint "continues in … rambling fashion through 29 causes of action against 29 defendants …."  There was nothing in the record to show that there findings were clearly erroneous.  The USCA thus concluded that the district court did not abuse its discretion in determining that Robinson's action was frivolous or in awarding fees and costs under Sec. 1988.  The USCA further concluded that the basis for the district court's award of $15,560.93 was clear from the record and that the award was amply supported by uncontested evidence regarding appellee's costs to defend Robinson's frivolous action and to expunge a lis pendens filed by Robinson.  Finally, because it found Robinson's appeal to be not entirely without merit, the USCA rejected the appellees' request for attorneys' fees and costs on appeal pursuant to 42 USC Sec. 1988(b) and Fed. R. App. P. 38.

20)  AMERICANS WITH DISABILITIES ACT:  Dymits v. American International Group, 99-15690 (9th Cir. Jan. 24, 2001) (unpublished).  Beezer, O'Scannlain, and Kleinfeld, Circuit Judges.
       The District Court for the Northern District of California, Judge Chesney presiding, dismissed under Fed. R. Civ. P. 12(b)(6) Dymits' second amended complaint alleging violations of the Americans with Disabilities Act, the Fair Housing Act, The Racketeer Influenced and Corrupt Organizations Act, the Rehabilitation Act, and numerous state laws.
      The USCA affirmed.  First, it affirmed the district court's dismissal of Dymits' second amended complaint for the reasons stated in the district court's December 2, 1998 order.  Second, it affirmed the district court's decision to grant the defendants an extension of time to answer as that decision fell well within the district court's discretion.  Third, it affirmed the district court's dismissal of Dymits' claim against National Union as it was absolutely clear that the deficiencies in his complaint could not be cured by amendment.  Fourth, it affirmed the district court's denial of Dymits' motion for appointment of counsel because Dymits presented no exceptional circumstances warranting appointment of counsel.  Finally, it affirmed the district court's denial of Dymits' motion to vacate and set aside the dismissal because, in his motion, he merely reiterated the assertions made in his complaint.

21)  AMERICANS WITH DISABILITIES ACT:  Kaplan v. City of North Las Vegas, 99-16585 (9th Cir. Jan. 19, 2001) (unpublished).  Kozinski, Hawkins, and Berzon, Circuit Judges.
      Kaplan claimed a "disability" within the meaning of the Americans with Disabilities Act because the City of North Las Vegas regarded him as substantially limited in the major life activity of working.  Based on the language of the City's termination letter and the testimony of the City's human resources director, Kaplan raised a genuine issue of fact that the City regarded him as unable to perform any peace officer position within the State of Nevada.  In Nevada, the term "peace officer" encompasses a vast array of different jobs, Nev. Rev. Stat. Secs. 289.150-289.360, involving similar training and skills.  Although an "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working," the inability to perform a "class of jobs" as compared to the average person with comparable training, skills and abilities can constitute such a limitation.  29 CFR Sec. 1630.2(j)(3)(i).  When comparing the job which Kaplan was considered unable to perform with the number and types of jobs utilizing similar training, knowledge and skills from which Kaplan would also be disqualified, the USCA found that "peace officer" described a sufficiently broad "class of jobs" under the regulations.  The USCA thus reversed and remanded.