1) SECURITIES FRAUD: DSAM Global Value Fund v. Altris Software, 00-56848 (9th Cir. Apr. 19, 2002).  Allegations that an auditor negligently failed to see that under Generally Accepted Accounting Principles millions of dollars in revenue from software sales reflected in a financial statement should not have been recognized were insufficient to plead scienter under the heightened plead-ing requirements of the Private Securities Litigation Reform Act and In re Silicon Graphics, 183 F.3d 970 (9th Cir 1999);  while the complaint set out a compelling case of negligence—perhaps even gross negligence—it did not give rise to a strong inference that the auditor acted with an intent to defraud, or undertook conscious misconduct or deliberate recklessness, as is required in a securities fraud case.  O'Scannlain and Silverman (author), Circuit Judges, and Reed, District Judge.  E. Isaccson of San Diego, CA, for the plaintiffs; M. Mahoney of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

2) PRICE DISCRIMINATION: Panatronic USA v. AT&T Corp., 01-15470 (9th Cir. Apr. 22, 2002).  No genuine issues of material fact supported claims of unlawful price discrimination against a telephone service provider that temporarily failed to assess a Universal Connectivity Charge (UCC) on subscribers whose service agreements were governed by complex, multi-million dollars contracts, while assessing the UCC on other subscribers;  the delay was not unreasonable.  Thompson (author), W. Fletcher, and Berzon Circuit Judges.  I. Bizar of New York NY, for the appellants; C. Hockett of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  INTELLECTUAL PROPERTY:  Karl Storz Endoscopy-America v. Surgical Technologies, 00-55147 (9th Cir. Apr. 4, 2002).  A firms "complete rebuild" of a product manufactured by another firm, which product still carries the manufacturer's trademark, can involve a "use in commerce" of that mark under the Lanham Act where the rebuilt product will be used by a third party and is so al-tered as to be a different product from that of the original manufacturer.  Kozinski and Thomas, Circuit Judges, and Whyte (author), District Judge.  M. Kravitz of New Haven, Conn., for the plaintiff;  G. Britton of San Diego, CA, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  COPYRIGHTS: Syntek Semiconductor Co. v. Microchip Technology, 00-17352 (9th Cir. Apr. 8, 2002).  Application of the "primary jurisdiction" doctrine was appropriate in this case to the issue of whether decompiled object code qualifies for registration as source code under the Copyright Act and regulations;  the USCA thus dismissed the action so that the parties could pursue administrative remedies before the Copyright Office.  Goodwin, Hug, and Thomas (author), Circuit Judges.  S. Garrison of Phoenix, AZ, for the plaintiff;  C. Campbell of Phoenix, AZ, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5) TRADE NAMES: Japan Telecom v. Japan Telecom America, 00-56012 (9th Cir. Apr. 24, 2002). The USCA upheld a summary judgment against Japan Telecom on its trade name infringement and unfair competition claims, and similar consolidated state claims, against defendant Japan Telecom America, holding that the plaintiff had unclean hands solely because the name by which it calls itself is deceptive since it is not, as suggested by its name, a Japanese firm and that deception is especially acute since the plaintiff specifically targets the Japanese American community, members of which are particularly susceptible to false claims of Japanese origin;  whether a mark (here "Japan Telecom") is primarily geographically deceptively misdescriptive is a question of fact that may be resolved on summary judgment only if the evidence presented by both sides permits the trier of fact to come to only one conclusion.  Hall, Kozinski (author), and W. Fletcher, Circuit Judges.  P. Gruen of Los Angeles, CA, for the appellant; V. Polk of Boston, Mass. For the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

6) FRANCHISE LAW: Chevron U.S.A. v. El-Khoury, 00-57126 (9th Cir. Apr. 9, 2002).  A summary judgment declaring that it is possible under the Petroleum Marketing Practices Act to terminate a service station franchise agreement for failure to pay state sales tax was inappropriate because an issue of fact remained as to whether the failure to pay the tax was sufficiently material to the franchise relationship to allow termination.  Ferguson, Tashima, and Graber (author), Circuit Judges.  K. Roberts of Woodland Hills, CA, for the defendant;  R. Phelps of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  ENVIRONMENTAL LAW:  ONRC Action and Klamath Forrest Alliance v. Columbia Plywood, 98-36233 (9th Cir. Apr. 16, 2002).  The Oregon Department of Environmental Quality (DEQ) acted within its authority in waiving a 180-day time limitation and accepting an untimely pollutant discharge permit renewal application;  dissenting in part, Judge Reinhardt thought that the DEQ had the authority to "renew" a permit beyond its original five-year term under the "continuing shield" permit provision, ORS Sec. 183.430(1); however, without deciding the maximum length of time that the DEQ may allow an expired permit to remain in effect, Judge Reinhardt would hold that a continuing shield permit may in no event last more than five years—the term of a properly issued renewal permit under OAR 340-045-0035(8);  he thought that the DEQ could not simply allow a continuing shield permit to remain in effect indefinitely, without acting on the application.  Reinhardt (dissenting in part), Thompson (author), and T.G. Nelson, Circuit Judges.  W. Carpenter of Eugene, OR, for the appellants;  K. O'Casey of Portland, OR, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW:  San Francisco Baykeeper v. NRDC, 01-16111 (9th Cir. Apr. 15, 2002).  Following Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001), the USCA held that California's submission of at least 18 total maximum daily loads (TMDLs) of pollutants which could be introduced into polluted waters and creation of a schedule for completing its remaining TMDLs precluded a finding under the constructive submission doctrine that the state clearly and unambiguously decided not to submit any TMDLs.  Hug (author), Cudahy, and Tashima, Circuit Judges.  M. Lozeau of Stanford, CA, for the plaintiffs;  M. Rosegay of San Francisco, CA, and S. McDonald of San Diego, CA, for the intervenors;  S. Glover of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Tillamook County v. U.S. Army Corps of Engineers, 01-35922 (9th Cir. Apr. 29, 2002).  Tillamook County appealed the denial of its motion for preliminary injunction to prevent intervenor City of McMinnville, Oregon, from continuing the enlargement of its existing municipal water supply reservoir along the Nestucca River;  the County complained that findings by the Army Corps of Engineers that the proposed expansion would not have a significant environmental impact was arbitrary and capricious and that the district court abused its discretion in denying the preliminary injunction;  the USCA affirmed, concluding that the Corps conducted an adequate investigation and that the district court did not abuse its discretion.  Politz (author), Canby, and Kleinfeld, Circuit Judges.  M. Dugan of Eugene, OR, for the plaintiff;  D. Lazerwitz of Portland, OR, for defendant;  G. Kiely of Portland, OR, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TAXATION / TRADEMARKS:  DHL Corporation v. CIR, 99-71580 (9th Cir. Apr. 11, 2002).  Under Treasury Reg. Sec. 1.482-2(d)(1)(i), where intangible property is transferred between commonly controlled entities, "the district director may make appropriate allocations to reflect arm's length consideration for such property or its use."  Here, the Tax Court found that $100 million, rather than $20 million, was the arm's length value of the "DHL" trademark;  the USCA did not find this valuation, a factual determi-nation, to be clearly erroneous and thus upheld the $100 million value, based on a $50 million figure for the domestic rights and a $50 million figure for the overseas rights;  however, the USCA agreed with DHL that the Tax Court erred in applying the Sec. 482 developer-assisted regulation, which precluded the allocation to DHL of the $50 million value of the foreign trademark rights;  the USCA held that DHLI (Document Handling Limited International) was the developer of the international trademark, in which case no allocation to DHL for the value of the foreign trademark rights was appropriate, or, alternatively, that DHLI provided assistance to DHL's development, thereby entitling DHL to a complete setoff against the $50 million allocation.  Beezer, O'Scannlain, and W. Fletcher (author), Circuit Judges.  E. Woodsome of Los Angeles, CA, for the petitioner;  J. Cohen of Washington, DC, for the respondent;(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENERGY / JURISDICTION:  Transmission Agency of Northern California v. Sierra Pacific Power Co., 01-15449 (9th Cir. Apr. 16, 2002).  The Federal Energy Regulatory Commission's exclusive jurisdiction over interstate transmission of electricity extends to any claims of entitlement to a specific allocation of interstate transmission capacity, whether that claim asks a court to enforce such an alleged entitlement or merely to hypothetically assume it.  Thompson (author), W. Fletcher, and Berzon, Circuit Judges.  D. Viglione of Sacramento, CA, for the plaintiff;  D. Aman of Portland, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  BANKRUPTCY:  In re Reaves, 00-57110 (9th Cir. Apr. 8, 2002).  While California Code of Civil Procedure Sec. 703.140(a)(3), California's special exemption statute for debtors who have elected to file for bankruptcy relief, requires an election of exemptions after bankruptcy proceedings are initiated, contains no proscription against the consecutive use of exemptions, once in the event of levy prior to bankruptcy, and again after a bankruptcy petition has been filed;  the BAP thus properly concluded that the debtor's pre-bankruptcy claims of exemption did not preclude her subsequent invocation of an exemption in bankruptcy.  Beezer, Tashima (author), and Graber, Circuit Judges. W. Little pro se;  S. Bryson of Los Angeles, CA, for the debtor-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  BANKRUPTCY / TAXATION:  In re DeRoche, 99-16058 (9th Cir. Apr. 5, 2002).  A "transaction" for purposes of an excise tax imposed on employers to reimburse Arizona's Special Fund is the act of employing a worker without carrying the required workers' compensation insurance at the time the worker is injured;  the date of the transaction for purposes of determining the three-year period of nondischargeability under the Bankruptcy Code is the date on which the worker is injured.  Hug, Noonan, and W. Fletcher (author), Circuit Judges. A. NewDelman of Phoenix, AZ, for the appellants;  T. Essig of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  BANKRUPTCY:  In re Diamond, 00-16280 (9th Cir. Apr. 4, 2002).  A state fraudulent misrepresentation judgment against the debtors and in favor of the appellees had preclusive effect in a nondischargeability proceeding under 11 USC Secs. 523(a)(2)(A) and (a)(6);  the appellees were entitled to a declaration of nondischargeability under these sections because the state court judgment to which they asked the bankruptcy court to give preclusive effect necessarily implicated issues identical to those implicated in the non-dischargeability proceeding and those issues were thus actually litigated in the state court proceeding.  Canby, Graber, and Paez (author), Circuit Judges.  D. Jenkins of Fresno, CA, for the appellants;  I. Ledlin of Spokane, WA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  BANKRUPTCY:  In re Cardelucci, 00-56541 (9th Cir. Apr. 12, 2002).  Post-bankruptcy petition interest owed to a creditor pursuant to 11 USC Sec. 726(a)(5) must be calculated using the federal interest rate, rather than determined by the parties' contract or state law.  Schroeder and McKeown, Circuit Judges, and Zilly (author), District Judge.  F. Knez of Riverside, CA, for the plaintiffs-appellants;  W. Burd of Santa Ana, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  BANKRUPTCY:  In re Stanton, 00-35474 (9th Cir. Apr. 9, 2002).  A trustee could not avoid a lien on a Chapter 7 debtor's property created by a deed of trust to secure advances a creditor would made to the debtor non-bankrupt corporation, where the lien was created pre-petition, not when the advances were made; the debtor encumbered his house before his bankruptcy, and the creditor's further financing of the debtor's corporation after the debtor filed for bankruptcy did not amount to creation of a new lien;  dissenting, Judge Gould thought that 11 USC Sec. 364(c) barred the debtor's attempt to use his house as collateral without prior court approval because, in continuing to use his house as collateral for his corporation's debts on post-petition advances, the debtor incurred debt within the meaning of Sec. 364(c).  Farris, Kleinfeld (author), and Gould (dissenting), Circuit Judges.  G. Beeler pro per;  S. Borgersen of Seattle, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  BANKRUPTCY:  In re Bassett, 01-35001 (9th Cir. Apr. 9, 2002).  The USCA reversed a BAP determination that a reaffirmation agreement was unenforceable because it failed to comply with the requirement of 11 USC Sec. 524(c)(2)(A) that the agreement to have a "clear and conspicuous" statement that "advises the debtor that the agreement may be rescinded at any time prior to discharge or within sixty days after such agreement is filed with the court." The USCA held that a "right-to-rescind" statement in the reaffirmation agreement herein at issue between the debtor and the creditor was "clear and conspicuous" as it was the first sentence in the agreement, no aspect of its formatting or appearance made it less visible or difficult to read, and a reasonable person would not have been surprised to find the statement.  Kozinski (author), Rymer, and Silverman, Circuit Judges.  F. Schoepflin of Seattle, WA, for the appellee;  A. Smith of Seattle, WA, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  AVIATION LAW:  GATX/Airlog Co. v. USA, 99-36024 (9th Cir. Apr. 19, 2002). The United States is immune from liability under discretionary function exception to the Federal Tort Claims Act for the alleged negligence of the Federal Aviation Administration in issuing aircraft certifications. Alarcon, Ferguson, and McKeown (author), Circuit Judges.  S. Devereaux of Palo Also, CA, for the appellants;  B. O'Malley of Washington, DC, for the United States. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  VETERANS AFFAIRS:  Nehmer v. Veterans' Administration, 01-15325 (9th Cir. Apr. 1, 2002).  In a class action brought against the VA by veterans exposed to Agent Orange, the USCA concluded that the VA must provide retroactive benefits to any class member who submitted a claim after May 3, 1989, based on a disease (here, prostate cancer) that was later service connected under the agent Orange Act of 1991, even if such claims were originally denied under valid regulations.  D.W. Nelson (author), Noonan, and Hawkins, Circuit Judges.  S. Schiffer of Washington, DC, for the defendants;  B. Stichman of Washington, DC, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  COMMUNICATIONS LAW:  USA v. Peninsula Communications, 01-35965 (9th Cir. Apr. 22, 2002).  An appeal of a Federal Communications Commission order to the D.C. Circuit under 47 USC Sec. 402 of the Communications Act of 1934, did not divest another district court of jurisdiction to enforce the order under Sec. 401 of the Act.  Alarcon and Silverman, Circuit Judges, and Brewster (author), District Judges.  K. Jacobus of Anchorage, AK, for the defendant;  AUSA R. Pomeroy of Anchorage, AK, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  EDUCATION:  Johnson v. Special Education Hearing Office, 01-16274 (9th Cir. Apr. 26, 2002).  Under the Individuals with Disabilities Education Act, 20 USC Sec. 1400-91, a request to enjoin a preexisting "stay put" order was appropriately handled by the district court's application of traditional preliminary injunction factors.  Goodwin, Noonan, and Trott, Circuit Judges.  Per Curiam.  S. Lewis of Corona, CA, for the plaintiff;  G. Rolen of San Francisco, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

22)  LABOR LAW:  Grammer v. The Artists Agency, 00-56994 (9th Cir. Apr. 29, 2002).  Affirming a district court's order confirming a Screen Actors Guild ("SAG") labor arbitration award totaling over $2 million in unpaid commissions, the USCA held that the labor arbitration panel acted reasonably in concluding that SAG waived violations in renewal contracts of Rule 16(g) of the collective bargaining agreement ("CBA") which governs all aspects of the relationship between SAG members and talent agents officially recognized by SAG, that a representation contract existed between the plaintiff and Artist Agency from January 1995 to March 1996, and that an award of commissions on consulting fees was permitted under the CBA.  Ferguson, Tashima (author), and Graber, Circuit Judges.  M. Singer of Los Angeles, CA, for the plaintiffs;  M. Harris of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  WRONGFUL TERMINATION / LEGISLATIVE IMMUNITY:  Bechard v. Rappold, 00-35956 (9th Cir. Apr. 19, 2002).  Reversing the district court's summary judgment and remanding for further consideration, the USCA held that actions of county commissioners in terminating a county employee were not entitled to legislative immunity from challenge in a lawsuit where the proceeding at which the termination decision was made was not undertaken in accordance with state legislative requirements, the decision affected only the terminated employee, and the formal resolution eliminating the employee's position was not passed until 17 months after the employee's termination.  Thomas, Graber, and Gould (author), Circuit Judges.  J. Lynch of Great Falls, MT, for the plaintiff;  R. Witt of Great Falls, MT, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  EMPLOYMENT DISCRIMINATION:  Hemmings v. Tidyman's Inc., 99-35932 (9th Cir. Apr. 11, 2002).  Washington's RCW Sec. 49.52.050, which provides for the doubling of wages willfully and intentionally withheld from employees, does not extend to amounts resulting from a retrospective jury verdict that the employer violated anti-discrimination laws;  moreover, the Washington Supreme Court has not extended the reach of Sec. 49.52.050 to instances, such as presented by this case, in which there is a bona fide dispute as to whether the employer is obligated to pay the amounts in question;  dissenting in part, Judge Pregerson thought that because applying double damages in this case is consistent with the remedial purposes of the statute and because there was no bona fide dispute as to the employer's obligation to pay equal wages, the district court's decision denying the employer's motion to disallow double damages should be affirmed;  dissenting in part, Judge Gould thought that the misconduct of one of the plaintiffs' counsel during closing argument were so improper and inflammatory as to call the integrity of the proceeding into question and to violate due process.  Pregerson (author as to Parts I-VII in which Judge Thomas joined), Thomas (author as to Parts VIII-IX which Judge Pregerson joined as to Part VIII and dissented as to Part IX), and Gould (joining as to Parts I-III, IVA, IVB, V-IX, and dissenting as to Part IVC), Circuit Judges.  R. Eymann of Spokane, WA, for the plaintiff;  J. Kalamon of Spokane, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  ADMIRALTY LAW:  Underwood Cotton Company v. Hyundai Merchant Marine (America), 01-55677 (9th Cir. Apr. 26, 2002).  The one year period to bring an action against a carrier provided under Sec. 1303(6) of the Carriage of Goods by Sea Act (COGSA) applies to claims brought under the Federal Bill of Lading Act ("Pomerene Act") where those claims concern a bill of lading issued for the carriage of goods by sea;  concurring in the result, Judge Reed thought that simply by applying canons of statutory construction the court could arrive at the conclusion that COGSA's proviso against "repealing" or "limiting" the Pomerene Act does not preclude application of its one year time bar to the plaintiff's claims.  Fernandez (author) and Rawlinson, Circuit Judges, and Reed (concurring), District Judge.  K. Matteld of Los Angeles, CA, for the plaintiff;  D. Woolley of Long Beach, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  SHIPPING CONTRACTS / EVIDENCE:  Sea-Land Service, Inc. v. Lozen International, LLC, 00-57058 (9th Cir. Apr. 3, 2002).  An internal company e-mail authored by one employee and forwarded in its entirety by a second employee together with the statement "Yikes, Pls note the rail screwed us up …", manifested an adoption or belief in the truth of the information contained in the original e-mail and can be admissible as an adoptive admission.  Beezer, Tashima, and Graber (author), Circuit Judges.  M. Reynolds of Culver City, CA, for the plaintiff-appellant;  S. Uthoff of Long Beach, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  ATTORNEYS' FEES: Webb v. Ada County, Idaho, 00-35338 (9th Cir. Apr. 4, 2002).  Post-judgment attorney's fees directly incurred in enforcing court-ordered relief and a consent decree to correct violations of a prisoner's constitutional rights were compensable under the Prison Litigation Reform Act ("PLRA");  however, the district court erred in determining the applicable PLRA hourly rate and abused its discretion in not providing an adequate explanation for its substantial reduction of the prisoner's fee requests on three matters.  Alarcon (author) and Silverman, Circuit Judges, and Brewster, District Judge.  H. Belodoff of Boise, ID, for the plaintiffs; C. Colaianni of Boise, ID, for the defendants  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  ATTORNEYS' FEES:  San Francisco NAACP v. S.F. Unified School Dist., 00-16864 (9th Cir. Apr. 1, 2002).  A civil rights plaintiff, based solely on its status as a prevailing party in an original action, may be eligible to recover attorney's fees under 42 USC Sec. 1988 for defending its consent decree from a collateral attack brought by a third party in a subsequent action.  Hug, D.W. Nelson (author), and Hawkins, Circuit Judges.  J. Hunt of San Francisco, CA, for the plaintiffs-appellants;  L. Renne of San Francisco, CA, for the defendants-appellees;  D. Girard of San Francisco, CA, for the intervenors (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  SANCTIONS:  Christian v. Mattel, Inc., 00-56194 (9th Cir. Apr. 15, 2002).  Misconduct outside the pleadings, such as in oral argument, at a meeting of counsel, and at a deposition, does not fall within the ambit of Fed. R. Civil Proc. 11, under which sanctions may be imposed for misconduct regarding signed pleadings, motions, and other filings.  Schroeder and McKeown (author), Circuit Judges, and Zilly, District Judge.  K. Richland of Beverly Hills, CA, for the real-party-in-interest;  A. Pruetz of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  JURISDICTION:  McBride Cotton and Cattle Corp. v. Veneman, 00-17378 (9th Cir. Apr. 19, 2002).  The exhaustion requirement of the Department of Agriculture reorganization statute, 7 USC Sec. 6912(e), is not jurisdictional;  exhaustion was excused here as the complaint alleged collateral, colorable constitutional claims and attempting to exhaust those claims would be futile.  Thompson (author), W. Fletcher, and Berzon, Circuit Judges.  M. Condra of Lubbock, TX, for the appellants;  S. Soni of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  PERSONAL JURISDICTION:  Ochoa v. J.B. Martin and Sons Farms, 00-16290 (9th Cir. Apr. 26, 2002).  Migrant workers residing in Arizona but recruited by a labor contractor to work on a farm in another state, could assert personal jurisdiction in Arizona over the non-resident farm employer where the contractor acted as the employer's agent in recruiting the workers;  the purposeful interjection of the contractor into Arizona, the relative disparity in burdens between the migrant workers and the employer, and the strong state interest in protecting its citizens and residents from manipulation by out-of-state employers made it reasonable for the district court to exercise jurisdiction over the employer.  Noonan, Hawkins, and Tashima (author), Circuit Judges.  K. Tamburro of Phoenix, AZ, for the plaintiffs;  F. Aloi of Rochester, NY, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

32)  REMOVAL:  Oregon Bureau of Labor and Industries v. U.S. West Communications, Inc., 01-35247 (9th Cir. Apr. 26, 2002).  28 USC Sec. 1441(a) authorizes removal only from a "state court" and the Oregon Bureau of Labor and Industries is not a "court";  the statute does not authorize removal of proceedings from an administrative agency, regardless of how "court-like" the proceedings may be.  Brunetti, Leavy, and T.G. Nelson, Circuit Judges.  AAG R. Wasserman of Salem, OR, for the plaintiff-appellant;  D. Symes of Portland, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  INTERVENTION:  USA v. City of Los Angeles, 01-55182 (9th Cir. Apr. 22, 2002).  In the underlying action the United States alleged that Los Angeles, its Police Commissioners and police department engaged in a pattern or practice of depriving individuals of constitutional rights through the use of excessive force;  before filing the instant suit, the U.S. agreed with the defendants in the underlying action that a consent decree would resolve the suit;  on the same day that the U.S. filed the complaint in the instant action, the parities filed a "Joint Application to Enter Consent Decree."  The Los Angeles Police Protective League ("Police League") responded by filing an action seeking to enjoin implementation of the consent decree and for leave to intervene in the instant action.  The USCA held that where a case has not yet been restructured because a consent decree has not been entered, and the U.S. has not unequivocally and completely disclaimed the remedies sought in its complaint against the Police League's members officer, and the consent decree itself contains a provision allowing the U.S., in certain circumstances, to seek to dissolve the consent decree and litigate the merits of the action on the basis of the original compliant, then, when the district court denied the motion to intervene, the Police League still had a protectable interest in the merits of the litigation;  the district court erred in concluding to the contrary in anticipation of future approval of the proposed consent decree;  the USCA reversed the district court's order denying the Police League's motion for intervention as a matter of right; it affirmed the district court's denial of the Community Interveners' motion to intervene as a matter of right; and it reversed the district court's denial of the Community Interveners' motion for permissive intervention, and remanded that issue to the district court for re-analysis under Fed. Rule Civ. Proc. 24(b).  Browning, Thomas (author), and Rawlinson, Circuit Judges.  G. Petersen of Costa Mesa, CA, for the proposed-interveners-appellants;  P. Glaser and R. Katrinak of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  ORGANIZATIONAL STANDING FOR FAIR HOUSING GROUPS:  Fair Housing of Marin v. Combs, 00-15925 (9th Cir. Apr. 9, 2002).  A fair housing organization has direct standing to sue a landlord who engages in racially discriminatory practices toward African-American tenants and potential tenants where the organization shows both frustration of its mission and a drain on its resources from attempts to investigate and counteract the landlord's discriminatory practices.  Roney (author), Hug, and Thomas, Circuit Judges.  M. Johnson of San Francisco, CA, for the defendant;  T. Loran of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  CIVIL RIGHTS / PREFERENTIAL TREATMENT BASED ON RACE:  Parents Involved in Community Schools v. Seat-tle School District, No. 1, 01-35450 (9th Cir. Apr. 16, 2002).  The Seattle School District's use of "racial tiebreakers" (which gives an advantage or preference on the basis of race) to admit students to high schools which are oversubscribed (in the sense that more students want to attend a school than there are spaces) violates the plain meaning of Washington Rev. Code Sec. 49.60.400 as the Washington Supreme Court would interpret it;  concurring specially, Judge Graber thought that in the circumstances presented by this case the Washington Supreme Court would not turn to federal law for interpretive guidance;  thus, the majority's discussion of federal law was surplusage;  Judge Graber also thought the majority read federal precedent too narrowly.  Reavley, O'Scannlain (author), and Graber (concurring), Circuit Judges.  D. Ritter and H. Korrell of Seattle, WA, for the plaintiff;  M. Madden of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CIVIL RIGHTS / GROUP LIABILITY:  Jones v. Williams, 00-56929 (9th Cir. Apr. 18, 2002).  A police officer's simple membership in a group, without personal involvement in and a causal connection with an allegedly unlawful search, does not create liability for that officer under 42 USC Sec. 1983;  the district court properly rejected plaintiff's proposed instruction on group liability which rejection the plaintiff maintained deprived her of the inference that, despite the fact that no officer took responsibility for the destruction of her living room or causing a urine smell in her iron during the search, all officers should be held liable for these actions if they were part of the searching team.  O'Scannlain and Silverman (concurring), Circuit Judges, and Reed (author), District Judge.  S. Yagman of Venice, CA, for the plaintiff;  J. Bogigian of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  CIVIL RIGHTS:  Strahan v. Kirkland, 01-15493 (9th Cir. Apr. 19, 2002).  In a retaliatory motive action brought by a police officer against his employer, the officer's showing that his employer knew of his protected association with a motorcycle club was, in itself, insufficient to support an inference that the association was a substantial factor motivating the employer's adverse employment action.  B. Fletcher, Boochever (author), and Fisher, Circuit Judges.  J. Boles of Reno, NV, for the plaintiff;  G. Shannon of Reno, NV, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

38)  CIVIL RIGHTS / USE OF FORCE:  Santos v. Gates, 00-56114 (9th Cir. Apr. 23, 2002).  A plaintiff's excessive force claim does not fail as a matter of law merely because he lacks a clear recollection of the act he contends caused his severe injury (a beating by arresting officers), where the plaintiff suffers from mental illness, was able to walk before his encounter with officers but not after, and the officers admit using force on him although describing him as passive; a question of material fact thus exists with respect to the amount of force used by the officers and the jury must be allowed to assess whether the force used by the officers was excessive;  dis-senting, Judge Tallman thought that because Santos did not offer sufficient competent evidence to support a reasonable jury's finding of excessive force employed during his arrest, judgment as a matter of law was appropriate;  Reinhardt (author) and Tallman (dissenting), Circuit Judges, and Damrell, District Judge.  S. Yagman of Venice, CA, for the appellant;  J. Bogigian of Los Angeles, CA, for the appellees  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  CIVIL RIGHTS:  Newman v. Sathyavaglswaran, 00-55504 (9th Cir. Apr. 16, 2002).  Parents, whose deceased children's corneas were removed by the Los Angeles County Coroner's office without notice or consent, brought this 42 USC Sec. 1983 action aleging a taking of their property without due process of law;  the USCA held that under California law, paralleled by national common law, next of kin have the exclusive right to possess the bodies of their deceased family members; that right creates a property interest, the deprivation of which must be accorded due process of law under the Fourteenth Amendment; the parents were not required to exhaust post-deprivation procedures prior to bringing this suit;  dissenting, Judge Fernandez did not believe that "the asthenic legal interest in a decedent's body, which California confers upon relatives and others, should be treated as a puissant giant for federal constitutional purposes"—California's statutory scheme, he thought, does not confer a property right in a dead body upon anyone.  Browning, Fernandez (dissenting), and Fisher (author), Circuit Judges.  B. Colovos of Southgate, Mich., for the plaintiff-appellants;  C. Orr of Los Angeles, CA, for the defendants-appellees (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  NATIVE AMERICAN LAW:  Navajo Nation v. Dept. of Health & Human Services, 99-16129 (9th Cir. Apr. 8, 2002).  The HHS Secretary's interpretation that a self-determination contract under the Indian Self-Determination and Education Assistance Act requires that Indians be the exclusive beneficiaries of the program that is the subject of the self-determination contract, is a reasonable interpretation entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984);  disenting, Judge Fletcher thought that the majority committed legal error by applying Chevron deference even when more than one governmental agency has been delegated interpretive authority over the statute.  B. Fletcher (dissenting), O'Scannlain (author), and Gould, Circuit Judges.  AAG T. Christie of Window Rock, Navajo Nation (Arizona), for the plaintiff-appellant;  J. Koppel of Washington, DC, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION LAW:  Ramirez-Castro v. INS, 00-71589 (9th Cir. Apr. 24, 2002).  A state court order expunging a lawful permanent resident's misdemeanor conviction for carrying a concealed weapon after successful completion of probation did not eliminate the immigration consequences of that conviction;  the USCA lacked jurisdiction to review a BIA decision denying the petitioner's motion to reopen and finding him deportable pursuant to 8 USC Sec. 1227(a)(2)(C) by reason of his state-court misdemeanor conviction for carrying a concealed weapon;  concurring, Judge Ferguson thought that although in this case the petition should have been dismissed, the majority incorrectly states that there is a general rule that convictions expunged under state law retain their immigration consequences; he thought the majority had relied on mere dictum to assert the general rule.  Ferguson (concurring), Tashima, and Graber (author), Circuit Judges.  S. Salinas of Tustin, CA, for the petitioner;  N. Friedman of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION LAW:  Vargas-Garcia v. INS, 00-71019 (9th Cir. Apr. 25, 2002).  When the Board of Immigration Appeals' Notice of Appeal Form (EOIR-26), its standards of specificity, and its practice of dismissing appeals without notice are linked, the resulting concatenation is so misleading that it can result in a denial of due process to the alien.  Fernandez (author) and Rawlinson, Circuit Judges, and Reed, District Judge.  P. Afrasiabi of Orange, CA, for the petitioner;  H. Phillips of Washington, DC, for the respon-dent.(Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION LAW:  USA v. Hernandez-Castellanos, 00-10301 (9th Cir. Apr. 25, 2002).  A conviction under Arizona's "felony endangerment" statute, ARS Sec. 13-1201, is not, categorically, an "aggravated felony" for purposes of increasing the maximum sentence for illegal reentry in violation of 8 USC Sec. 1326;  as not all conduct punishable under ARS Sec. 13-1201 constitutes a crime of violence under 18 USC Sec. 16(b), convictions under the Arizona statute are not, categorically, aggravated felonies under 8 USC Sec. 1101(a)(43)(F). Beezer, Thomas (author), and W. Fletcher, Circuit Judges.  D. Zanes of Tucson, AZ, for the defendant;  AUSA C. Cabanillas of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  TRAFFIC STOPS:  USA v. Mariscal, 01-10326 (9th Cir. Apr. 1, 2002).  A traffic stop in Arizona based on the driver's failure to signal a turn was not supported by reasonable suspicion that the driver had violated an Arizona traffic law, and thus violated the Fourth Amendment, where there was no indication that the turn may have affected traffic;  Arizona law, A.R.S. Sec. 28-754(A), provides that a "person shall not so turn any vehicle without giving an appropriate signal in the manner provided by this article in the event any other traffic may be affected by the movement."  Reinhardt, Noonan, and Fernandez (author), Circuit Judges.  AFPD B. Jacobson of Phoenix, AZ, for the defendant-appellant;  AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  WARRANTLESS BORDER SEARCHES:  USA v. Okafor, 01-50004 (9th Cir. Apr. 4, 2002).  The examination of luggage and other containers by x-ray or other technology may be done at the border with no showing of particularized suspicion, at least so long as the means of examination are not personally intrusive, do not significantly harm the objects scrutinized and do not unduly delay transit; here, the customs agents had reasonable, articulable suspicion to insert a needle-like probe into the defendant's baggage which upon being x-rayed appeared to have a hidden compartment;  given the circumstances that came to the attention of the agents upon x-raying the bag, they had a duty to search further in order to protect the public welfare and national security;  even if non-routine, the incision and probe search of the bag were understandable, reasonable, and wholly lawful;  the district court thus did not err in admitting the fruits of the search (cocaine) into evidence.  Kozinski and Gould (author), Circuit Judges, and Breyer, District Judge.  AUSA M. Raphael of Los Angeles, CA, for the plaintiff;  C. DeVito of West Hills, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SEARCH & SEIZURE:  USA v. Jones, 01-10352 (9th Cir. Apr. 18, 2002).  A warrantless search by federal agents of a public employee's office neither initiated nor conducted by the employer, and not aimed at finding a document necessary to carry out the employer's work, but to secure documents relevant to a criminal investigation that could be admissible in subsequent criminal prosecutions, violated the Fourth Amendment;  the government's efforts to ensure compliance with a forthwith subpoena did not fall under the O'Connor v. Ortega, 480 US 709 (1987), exception to the warrant requirement;  the government's efforts thus gave rise to an illegal search.  Sneed, Brunetti (author), and T.G. Nelson, Circuit Judges.  AUSA J. Wilson of San Francisco, CA, for the appellant;  J. Keker of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  EXPERT TESTIMONY:  USA v. Pineda-Torres, 01-50133 (9th Cir. Apr. 23, 2002).  The admission of expert testimony on the structure of drug trafficking organizations in a simple, non-conspiracy importation case, to show that a defendant knew drugs were in a car, constituted prejudicial error;  the implication of the expert testimony and the government's argument to the jury was plainly that the defendant was a member of an international drug organization and had knowledge that drugs were in the car.  Reinhardt (author) and Tallman, Circuit Judges, and Damrell, District Judge.  S. Charlick of San Diego, CA, for the defendant-appellant;  AUSA B. Castetter, of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SPEEDY TRIAL:  USA v. Murillo, 00-10163 (9th Cir. Apr. 25, 2002).  A 13-month delay between the defendant arrest and trial did not violate his Sixth Amendment right to a speedy trial where the case was complex, an evaluation of the death penalty process was required, the defendant acknowledged the complexity of the case and the extensive discovery involved, stipulated to continue deadline dates for motions, and much of the delay was due to the court-appointed defense attorney who vigorously filed motions and pursued the kind of investigations to be expected in such a case, and the delay did not prejudice the defendant.  Goodwin (author) and Trott, Circuit Judges, and Ezra, District Judge.  AFPD J. Lambrose of Las Vegas, NV, for the defendant-appellant;  AUSA P. Ko of Las Ve-gas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  RIGHT TO COUNSEL:  USA v. Day, 00-56525 (9th Cir. Apr. 10, 2002).  The prejudice component of an ineffective assistance of counsel claim can be met when, based on the erroneous advice of counsel, a defendant forfeits the possibility of a three-point reduction for acceptance of responsibility under Sentencing Guideline Sec. 3E1.1 in exchange for a guilty plea;  under USA v. Blaylock, 20 F.3d 1458, which controls on the prejudice issues, an attorney's incompetent advice resulting in a defendant's rejection of a plea offer can constitute ineffective assistance of counsel.  Goodwin (author), Wallace, and Thomas, Circuit Judges.  W. Pitman of Beverly Hills, CA, for the defendant-appellant;  AUSA M. Terrell of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  RIGHT TO COUNSEL:  USA v. Visciotti, 99-99031 (9th Cir. Apr. 24, 2002).  In a Sixth Amendment right to counsel case, the defense counsel did not abandon his client during the guilt phase of his felony murder rule trial, warranting a presumption of prejudice, by conceding in his closing argument that there was no reasonable doubt that the client was guilty of first degree murder, where counsel also argued that the evidence against his client was not overwhelming, there were factors that could be decided in favor of innocence under the reasonable doubt standard; the murder was not premeditated, his client lacked the specific intent to kill and was not a cold-blooded killer;  the USCA affirmed the district court's decision to deny habeas relief on the petitioner's ineffective assistance of counsel claim during the guilt phase and affirmed the district court's decision to grant habeas relief on the petitioner's ineffective assistance of counsel claim during the penalty phase;  dissenting, Judge Pregerson thought that the petitioner's claim of ineffective assistance of counsel during the guilt phase should have been granted as counsel's deficient performance during the guilt phase was per se prejudicial pursuant to the Supreme Court's decision in USA v. Cronic, 466 US 659 (1984).  Pregerson (author and dissenting), Tashima (author), and Berzon, Circuit Judges.  DAG J. Swan of San Diego, CA, for the respondent;  DFPD W. Forman of Los Ange-les, CA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  CONFRONTATION RIGHTS:  Melendez v. Pliler, 01-55272 (9th Cir. Apr. 24, 2002).  For purposes of preserving for appeal a Sixth Amendment right to confrontation claim, state law applicable to the contemporaneous objection rule in situations where an ob-jection is made but the trial court in its discretion declines to consider it on the merits, was not so clear, consistently applied, and well-established as to erect a procedural bar to consideration of the federal claim.  Wardlaw and W. Fletcher, Circuit Judges, and Fogel (author), District Judge.  D. Goodwin of Los Angeles, CA, for the petitioner;  DAG S. Mercer of Los Angeles, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  PEREMPTORY CHALLENGES:  Fernandez v. Roe, 98-56927 (9th Cir. Apr. 8, 2002).  A prosecutor's use of peremptory challenges to strike 4 out of 7 (57%) Hispanics, while Hispanics constituted only 12% of the 60-person venire, but 21% of those stricken (4 out of 19), raised an inference of exclusion based on race; the petitioner thus made a prima facie showing of discrimination under Batson v. Kentucky, 476 US 79 (1986).  Bright, Kozinski, and W. Fletcher (author), Circuit Judges.  S. Azad of Los Angeles, CA, for the petitioner;  K. Terp of San Diego, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  CONFESSIONS:  USA v. Parks, 00-10477 (9th Cir. Apr. 3, 2002).  The admission during a joint trial of a co-defendant's redacted confession which includes the term "they" in various places from which the jury could infer the existence of a third accomplice and from which the jury would naturally conclude that another co-defendant name was the name redacted from the confession can violate that other codefendant's Six Amendment rights of confrontation.  Politz (author), W. Fletcher, and Fisher, Circuit Judges.  T. Roden of Los Angeles, CA, for the defendant;  S. Myhre of Las Vegas, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  DRUG QUANTITIES:  USA v. Mendoza-Paz, 00-50029 (9th Cir. Apr. 10, 2002).  21 USC Secs. 841 and 960, which requires the determination of drug quantity and the applicable maximum sentence to be made by a judge rather than a jury, are facially consti-tutional;  the defendant's "as-applied" challenges to these statutes were without merit.  B. Fletcher, Thomas, and Wardlaw (author), Circuit Judges.  FPD S. Hubachek of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SENTENCING / PROBATION SEARCHES:  USA v. Stokes, 01-30170 (9th Cir. Apr. 15, 2002).  A search of a probationer's car, as part of a criminal investigation and based only on reasonable suspicion, did not violate the Fourth Amendment;  procedural distinctions between the Armed Career Criminals Act ("ACCA"), 18 USC Sec. 924(e), and the federal three-strikes law, 18 USC Sec. 3559(c), and did not deprive a person sentenced under the ACCA of equal protection and due process.  Politz, Canby (author), and Kleinfeld, Circuit Judges.  AFD M. Donahoe of Helena, MT, for the defendant-appellant;  AUSA B. Hubley of Helena, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SENTENCING:  USA v. Working, 01-30098 (9th Cir. Apr. 17, 2002).  In sentencing the defendant to one day for assault with intent to commit first degree murder, the district court abused its discretion;  it improperly considered the mandatory consecutive sentence under 18 USC Sec. 924(c), as well as the defendant's low risk of recidivism, when deciding how far to depart from the Sentencing Guidelines.  Alarcon and Silverman (author), Circuit Judges, and Brewster, District Judge.  K. Hoppmann of Washington, DC, for the plaintiff-appellant;  W. Fricke of Tacoma, WA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  SENTENCING:  USA v. Machiche-Duarte, 01-10361 (9th Cir. Apr. 18, 2002).  Under Sentencing Guidelines Sec. 2L1.2, Ap-plication Note 5, a defendant is eligible for a reduction in sentence only if he satisfies all three specific requirements of Note 5; here, the defendant had two prior felony convictions and did not meet the prerequisites for a sentencing departure under Note 5.  Brunetti (author), Leavy, and T.G. Nelson, Circuit Judges.  AUSA V. Kelly of Tucson, AZ, for the appellant;  R. Ellinwood of Tucson, AZ, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

58)  SENTENCING:  USA v. Alexander, 00-30348 (9th Cir. Apr. 19, 2002).  The district court did not err in ordering the defendant's former counsel to present evidence of threats of bodily harm made by the defendant during attorney-client communications regarding pending criminal proceedings;  on a matter of first impressions in the Ninth Circuit, the USCA held that a district court must apply the three-level "official victim" sentencing enhancement under USSG Sec. 3A1.2(a) when either state officials or state employees are the victims of a federal crime.  Alarcon (author) and Silverman, Circuit Judges, and Teilborg, District Judge.  R. Stevens of Billings, MT, for the defendant-appellant;  AUSA C. Rostad of Great Falls, MT, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  SENTENCING:  Souch v. Schaivo, 01-15487 (9th Cir. Apr. 30, 2002).  Neither the version of Arizona Rev. Statute Sec. 13-708 in effect when the petitioner committed his crimes, nor that in effect when he was sentenced, created a "presumption" that the petitioner's sentences were to run consecutively or concurrently;  under either version, the trial court retained discretion to impose consecutive or concurrent sentences;  the petitioner's sentence thus neither was "contrary to," nor "involved an unreasonable application of," Federal law as embodied in the Ex Post Facto Clause. 28 USC Sec. 2254(d)(1).  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  G. Souch pro se;  AAG D. Ramsey of Phoenix, AZ, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  PRISONS:  Hallett v. Morgan, 00-35098 (9th Cir. Apr. 26, 2002).  The prospective relief provisions of the Prison Litigation Reform Act, 18 USC Sec. 3626, apply to a consent decree that directs prison officials to implement changes in a prison's medical services and to submit to independent monitoring of those policies, as well as to a motion to extend the district court's jurisdiction over the con-sent decree for an additional period of time;  based on the district court's not clearly erroneous findings of fact, conditions of confinement did not violate the Eighth Amendment;  the PLRA mandated denying the motion to extend the decree.  Thomas, Graber (author) and Gould, Circuit Judges.  P. Arthur of Seattle, WA, for the plaintiffs;  C. Murphy of Olympia, WA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  BUSINESS TORTS:  Green Hills Software, Inc. v. Safeguard Scientifics, 01-55015 (9th Cir. Apr. 22, 2002) (unpublished).  Wardlaw and W. Fletcher, Circuit Judges, and Fogel, District Judge.

 The District Court for the Central District of California, Judge Baird presiding, granted summary judgment for Safeguard Scientifics and SPC Private Equity Partners in Green Hills Software's action for intentional interference with prospective economic relations. 

 The USCA affirmed.  Under Della Penna v. Toyoto Motor Sales, U.S.A., Inc., 11 Cal. 4th 376 (1995), the elements of a cause of action for intentional interference with prospective economic relations under California law are: (1) an economic relationship between the plaintiff and another containing a probability of future economic benefit, (2) knowledge by the defendant of the existence of the relationship, (3) intentional acts on the part of the defendant designed to disrupt the relationship, (4) actual disruption of the relationship, and (5) damages to the plaintiff proximately causes by the acts of the defendant.  In Della Penna, the California Supreme Court held that "a plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove … that the defendant not only knowingly interfered with plaintiff's expectance, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself." Id. at 393  However, the Supreme Court did not define the precise scope of wrongfulness.  It wrote:  "The case, if any, to be made for adopting refinements to that element of the tort-requiring the plaintiff to prove, for example, that the defendant's conduct amounted to an independently tortious act, or was a species of anticompetitive behavior proscribed by positive law, or was motivated by unalloyed malice-can be considered on another day, and in another case."  Id. at 378.  California Courts of Appeal have set forth varying definitions of "wrongfulness" since Della Penna.  But, as the Ninth Circuit recently observed, the precise type of wrongfulness necessary to trigger liability for intentional interference with prospective economic relations "remains very much an unresolved question in California."  Marin Tug & Barge, Inc. v. Westport Petroleum, Inc., 271 F.3d 825, 831 (9th Cir. 2001).  The Circuit has concluded that "the California Supreme Court would either eliminate motive, standing alone, as a basis for the wrongfulness element of the tort of intentional interference with prospective economic advantage or, more likely, import into the tort a limitation on motive-based causes of action similar to the one used under Gantt and its progeny." [Gantt v. Sentry Ins., 1 Cal. 4th 1083, 1094-95 (1992), held that only specifically proscribed motives, such as constitutional or statutory violations, are actionable.]  Although the Supreme Court granted review in Korea Supply Co. v. Lockheed Martin Corp., 90 Cal. App. 4th 902 (2001), in which the precise scope of wrongfulness in the context of the tort of intentional interference with prospective economic relations may be clarified, the USCA declined to stay the instant appeal pending that decision.  Based on its reading of California case law, the USCA predicted that the Supreme Court would hold that an independently actionable claim of wrongful conduct is required to satisfy the Della Penna standard.

  Green Hill rested its claim of independently actionable wrongful conduct on the tort of fraudulent misrepresentation.  The elements of that tort are:  (1) misrepresentation by way of a false representation, concealment or non-disclosure;  (2) knowledge of falsity; (3) intent to defraud;  (4) justifiable reliance;  and (5) resulting damage.  Green Hills insisted that Safeguard and SPC made various misrepresentations to it in an attempt to prevent Daniel O'Dowd's buy-out of Glen Hightower and subsequently selling Hightower's shares to Green Hills, and to induce O'Dowd to submit to the appellees' trilateral deal.  The alleged misrepresentation included:  (1) Samuel Plum's statement to O'Dowd on August 12, 1998 that SPC was moving forward with financing Hightower's buy-out;  (2) Wayne Weisman's statement to Green Hills on August 19, 1998 that Safeguard intended to move forward with financing Hightower's buy-out; and (3) Plum's statement to Green Hills on August 26, 1998 that Safeguard and SPC were in the process of making an acquisition.  Green Hills had not established that the appellees' representations were false.  The appellees had 90 days from June 26, 1998 (the day O'Dowd triggered the buy-out provision) to decide whether to finance Hightower's buy-out.  The representations to Green Hills were made at a time when the appellees still were conducting due diligence and before their investment committee had made a fi-nal decision.  Moreover, Plum and Weisman expressly stated to Green Hills that they had not presented the buy-out proposal to their investment committee for approval.  The appellees' representations were opinions and expressions of future intent made before a final decision had been reached with respect to the buy-out.  The USCA also held that Green Hills had not established that it reasonably relied upon the appellees' representations.  The record indicated that O'Dowd was unable to complete his buy-out and sale of stock to Green Hills due to Hightower's demand for arbitration on August 24, 1998 and ensuing preliminary injunction.  Because the injunction prohibited O'Dowd from completing his buy-out and sale of shares to Green Hills, the appellees' representations were not the immediate cause of the harm suffered by Green Hills.  Consequently, there was no reliance.  Even if the representations had a negative impact on Green Hills—by causing turmoil, loss of employee morale and temporary reduction of productivity—Green Hills could not have reasonably relied upon them.  It knew that financing of Hightower by Safeguard and SPC was subject to approval by their investment committee.  Plum and Weisman stated to Green Hills that the buy-out proposal had not been presented for approval to the investment committee.  Green Hills' reliance, if any, was thus unreasonable.  The USCA concluded that Green Hill could neither establish the falsity of the appellees' representations nor demonstrate that it justifiably relied on those representations.  Green Hills thus could not  establish that the appellees' conduct amounted to fraudulent misrepresentation.  Its claim for intentional interference with prospective economic relations thus failed because it could not establish that the appellees' conduct is independently actionable. 

2)  RICO:  Harwood v. International Estate Planners, 01-55693 (9th Cir. Apr. 25, 2002) (unpublished).  Hawkins and Fisher, Circuit Judges, and Weiner, District Judge.

 The District Court for the Central District of California, Judge Taylor presiding, entered summary judgment and an award of $750,000 to Harwood on her claims brought pursuant to the Racketeering Influenced and Corrupt Organization Act, 18 USC Sec. 1962(b), as well as state law and equity claims. 
 The USCA affirmed in part, reversed in part, and remanded.  The district court held under California law that Ramona Grant-McCathy and International Estate Planners, dba First National Trust Corporation, ("International") breached a contract with Harwood to properly invest her money, were liable under Harwood's 13th cause of action alleging an equitable claim under California's "money had and received" doctrine, that Harwood could pierce the corporate veil to hold Ramona personally liable for using the money on her personal expenses, and that actions of Ramona and her now deceased husband, Robert McCathy, violated RICO Sec. 1962(b).  The district court thus granted Harwood summary judgment on the RICO claim, the breach of contract claim and the equitable claim.  Harwood opted to dismiss without prejudice the remaining claims contained in the complaint and to take judgment on the claims adjudicated by the motion.  Based on the record before it on summary judgment, the district court found as a matter of law that International was the alter ego of Ramona and Robert McCarthy and pierced the corporate veil to impose liability upon Ramona.  This conclusion led the district court to impose RICO liability upon Ramona under Sec. 1962(b).  It reasoned that the legal effect of ignoring a corporate façade is to treat the business entity as a general partnership;  under partnership law, each general partner, i.e., Ramona and Robert, is liable for any acts that the partnership commits. The court thus found that Robert's acts of mail and wire fraud provided the necessary predicate acts and scienter under Sec. 1962(b), and Ramona was liable as a member of the enterprise.  However, the USCA found that the district court's entry of summary judgment on the RICO count was erroneous.  Section 1962(b) makes it unlawful to acquire an interest in or control of an "enterprise" through a pattern of racketeering activity.  Harwood failed to establish the enterprise element.  "The definition of 'enterprise' encompassed both groups with a formal legal structure and those whose members merely associate in fact.  Either way, however, a group does not constitute an enterprise unless it exists independently from the racketeering activity in which it engages.  At minimum, it must have 'some sort of structure … for the making of decisions' and 'some mechanism for controlling and directing the affairs of the group on the ongoing, rather than a ad hoc, basis.'  A group whose members collectively engage in an illegal act, in-and-of-itself, does not constitute an 'enterprise' for the purposes of RICO."  Simon v. Value Behavior Health, Inc., 208 F.3d 1073, 1083 (9th Cir. 2000) (internal citations omitted) cert. denied, (531 US 1104 (2001).  The conspiracy between Robert and Ramona to defraud Harwood and the other elderly victims did not satisfy the definition of 'enterprise.'  Chang v. Chen, 80 F.3d 1293, 1300 (9th Cir. 1996) (conspiracy is not an enterprise for the purposes of RICO).  Like the plaintiff in Chang, Harwood failed to establish that Robert and Ramona "utilized a structure separate and apart from the predicate acts to distribute the proceeds of the transactions" which existed independently from the racketeering activity in which it engaged. 

 Ramona next argued that there was no evidence of any contract between International and Harwood to support the entry of summary judgment on the contract claim because there was no written contract between them.  The USCA disagreed.  Harwood's declaration established that Robert agreed to invest money for Harwood in a conservative investment vehicle appropriate for an elderly widow.  In exchange for depositing $150,000 with International, her funds would be invested with the Fortis Funds.  Thereafter Harwood received written statements indicating the money was on account with International.  When she became suspicious and requested her money be returned, she discovered she had been defrauded.  The USCA found no error in the conclusion that Harwood's agreement to entrusted Robert with her assets, coupled with the account statements, constituted sufficient evidence that an investment contract had been formed.  Harwood made deposit in exchange for Robert's promise to properly invest her assets.  That promise was breached when the money was diverted to Robert and Ramona's own purpose.  Ramona also argued that the formation of a contract was an impossibility because the checks Harwood gave to Robert were made payable to "Trust," a nonexistent entity.  However, the USCA found that this assertion was immaterial as well as a misstatement of the record.  The checks were made payable by Harwood to "First International Trust Corp."—a name under which the defendant corporation was doing business and thus synonymous with the corporate entity which the district court found to be an alter ego of Ramona and Robert.  Legally, the money was thus paid to and the investment con-tract entered into with Ramona and Robert. 

 The USCA found no error in the district court's conclusion that International was the alter ego of Robert and Ramona.  Under California law, "there is no litmus test to determine when the corporate veil will be pierced;  rather the results will depend on the circumstances of the case.  There are, nevertheless, two general requirements:  (1) that there be such unity of interest and ownership that the separate personalities of the corporation and the person no longer exist and (2) that, if the acts are treated as those of the corpora-tion alone, an inequitable result will follow."  Mesler v. Bragg Management Company, 702 P.2d 601, 606 (Cal. 1985).  It was undis-puted that the corporation engaged in no required formalities and that Ramona used corporate funds for her personal use.  She cited no authority that piercing the corporate veil was inappropriate in such circumstances.

While affirming the district court's summary judgment on the 5th and 13th causes of action, the USCA agreed with Ramona that the district court erred in awarding damages.  The district court awarded $150,000 for the breach of contract claim and $150,000 for the money had and received claim, but the record did not reflect how it arrived at these amounts.  Both causes of action were based on identical facts, and it appeared that Harwood improperly recovered twice for being fraudulently induced to pay Robert $150,000.  The USCA thus reversed and remanded with instructions to reconsider the award.  Harwood may recover her $150,000 only once, but the court is free to award additional consequential damages or punitive damages, if they are warranted on the 5th or 13th causes of action.  Given the USCA's holding that the RICO judgment could not be sustained, the USCA remanded the case to the district court for further proceedings on Harwood's unadjudicated claims—causes of action 4, 6, 7, 8, 9, 10, 11, and 12.

3)  TAXATION / VEXATIOUS LITIGANTS: Olsen v. CIR, 01-16404 (9th Cir. Apr. 16, 2002) (unpublished).  Browning, Kleinfeld, and Gould, Circuit Judges.
 The District Court for the Eastern District of California, Judge Damrell presiding, dismissed Olsen's 42 USC Sec. 1983 action for failure to state a claim, denied his motion for reconsideration, and entered a vexatious litigant order against him.  Olsens appealed pro se.  The USCA affirmed.  It lacked jurisdiction to review the orders dismissing the action and denying reconsideration, as the no-tice of appeal was untimely. However, it had jurisdiction to review the vexatious litigant order under 28 USC Sec. 1291.  The district court dismissed Olsen's complaint with prejudice on January 26, 2001, and denied his motion for reconsideration on April 4, 2001.  Thus,  Olsen's notice of appeal filed on June 29, 2001 was untimely as to these two orders.  Olsen's notice of appeal was timely as to the vexatious litigant order entered June 12, 2001.  The USCA reviewed the entry of a vexatious litigant order for abuse of discretion and concluded that the district court did not abuse its discretion in entering the order because Olsen had notice that the district court was considering entering such an order and had an opportunity to oppose it.  Moreover, the district court specifically identified numerous filings by Olsen that the district court found frivolous.  Finally, the district court's order was narrowly tailored to prevent infringe-ment on Olsen's right of access to the courts.

4)  TAXATION: Overstreet v. CIR, 01-71021 (9th Cir. Apr. 17, 2002) (unpublished).  Browning, Kleinfeld, and Gould, Circuit Judges.
 The Overstreets appealed pro se the tax court's decision upholding the CIR's finding of a federal income tax deficiency for tax year 1992.  

The USCA dismissed in part and affirmed in part.  First, the USCA lacked jurisdiction to address the Overstreets' contentions regarding the merits of the tax court's original decision and written opinion because they failed to file a notice of appeal within 90 days of the entry of decision, and failed to file a timely post-decision tolling motion.  The USCA thus dismissed the Overstreets' appeal of the Tax Court's underlying decision.  Second, although the USCA lacked jurisdiction over the merits of the tax court's underlying decision, it had jurisdiction over the Overstreets' appeal from the denial of their motion for reconsideration because the Overstreets filed a notice of appeal within 90 days of entry of that decision.   The USCA reviewed for abuse of discretion the denial of a motion for reconsideration, and can affirm for any reason fairly supported by the record.  Citing Fed. Tax Ct. R. 161, the USCA concluded that the tax court did not abuse its discretion by denying as untimely the Overstreets' motion for reconsideration.

5)  TAXATION: Knelman v. CIR, 01-70829 (9th Cir. Apr. 17, 2002) (unpublished).  Browning, Kleinfeld, and Gould, Circuit Judges.
 The Knelmans appealed pro se the tax court's decision that they owed income tax and penalties for 1994.  The USCA had jurisdiction pursuant to 26 USC Sec. 7482(a) and affirmed.  The USCA reviewed de novo the tax court's conclusions of law and for clear error its findings of facts.  The tax court properly determined that the Knelmans were subject to tax on the income from their business.  The Commissioner of Internal Revenue satisfied his initial burden by presenting stipulations of fact and other documentary evidence showing that the Knelmans had not paid taxes on taxable income from 1994, and that they had improperly claimed excessive deductions.  Any alleged procedural irregularities in the CIR's examination process were irrelevant to the tax court's determination of whether, on the merits, there was a deficiency in the tax.

6)  TAX EVASION / MAIL FRAUD: USA v. Hazlewood, 00-50114 (9th Cir. Apr. 9, 2002) (unpublished).  Wardlaw and W. Fletcher, Circuit Judges, and Whyte, District Judge.

 Following a jury trial, Hazlewood was convicted and sentenced in the District Court for the Central District of California, Judge Taylor presiding, of mail fraud under 18 USC Sec. 1341 and tax evasion under 26 USC Sec. 7201.  He challenged (1) the sufficiency of the evidence supporting his convictions for mail fraud, (2) the validity of his waiver of counsel, (3) the admissibility of financial summaries introduced into evidence, (4) the denial of his motion to dismiss for outrageous governmental conduct, (5) the exclu-sion of pretrial delay under the Speedy Trial Act, (6) upward adjustments of his sentence, (7) the calculation of the amount of loss to the victims, and (8) the effectiveness of his counsel.

  The USCA affirmed.  Hazlewood argued that the evidence was insufficient to support his convictions for mail fraud as there was no evidence that he used the mails.  Reviewing de novo, the USCA noted that sufficient evidence exists if, considering the evidence in the light most favorable to the government, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.  Here, a postmarked envelope and the testimony of witnesses were sufficient for a rational jury to find that Hazlewood used the mails to execute his scheme.

  Hazlewood also argued that his decision to waive his Sixth Amendment right to counsel prior to trial was not intelligent, voluntary, or unequivocal as the court did not inform him whether seeking a continuance to allow a new attorney time to prepare would compromise his Speedy Trial Act claim on appeal.  Reviewing de novo, the USCA held that the district court did not err in finding a valid waiver.  Hazlewood persisted in his waiver despite being fully and adequately advised of the nature of the charges, the possible penalties, and the dangers of proceeding pro se.  Hazlewood's argument that his waiver was not fully informed because the district court did not repeat verbatim the model remarks set out in USA v. Hayes, 231 F.3d 1132 (9th Cir. 2000), failed.  A court need not follow verbatim the model colloquy if it sets forth in minimum fashion, some edification of the pitfalls of self-representation, which the court here did.  Id. at 1138.  It was of no consequences that neither the judge nor the prosecutor advised Hazelwood as to the merits of a potential Speedy Trial Act motion because, in determining the validity of a waiver, "a trial judge must focus on the defendant's understanding of the importance of counsel, not the defendant's understanding of the substantive law or procedural details." Id.

The USCA rejected Hazlewood's challenge to the district court's denial of his motion to suppress financial summaries based on information from illegally seized corporate records.  The district court did not clearly err in admitting the summaries as the underlying bank account records were admissible under the inevitable discovery doctrine.  The bank records would have been a routine starting point in an investor fraud investigation, and could readily have been obtained via subpoenas on the banks.  Hazlewood also argued that the summaries were not properly authenticated and that he did not have the opportunity to inspect the underlying records.  This argument failed because the court did not abuse its discretion in admitting the summaries under Fed. R. Evid. 1006.  The underlying records would have been admissible as business records under Rule 803(6).  Moreover, one of Hazlewood's attorneys actually examined the records.  Id. at 1412.  Nor did the court err in denying Hazlewood's motion to dismiss the indictment for outrageous government conduct.  The USCA reviews a district court's refusal to dismiss an indictment based on a due process violation de novo, and its refusal to exercise its supervisory powers to dismiss for an abuse of discretion.  Under either standard, the court did not err because, although the government acted wrongfully in its illegal search and seizure of the corporate records, its conduct did not shock the conscience to a level that would trigger the outrageous conduct defense. Hazlewood also argued that his rights under the Speedy Trial Act were violated by excessive, non-excludable pretrial delays.  The USCA found this contention meritless as the trial was delayed for only 50 non-excludable days out of a permissible 70-day maximum.  The first period in dispute, February 13, 1998 to February 17, 1998, fell within the district court's continuance of the trial from October 28, 1997 to February 17, 1998.  Because the district court set forth sufficient facts in finding that the continuance would serve the "ends of justice," referencing the complexity of the case and new counsel's need for time to prepare, the period was excludable.  The second disputed period, February 17, 1998 to April 8, 1998, was excludable due to pending motions that were heard on May 19, 1998.  Under 18 USC Sec. 3161(h)(1)(F), any delay that results from pending motions, from the time of filing to the conclusion of the hearing, is excludable, even if not reasonably necessary.  As a court need not make any finding as to pretrial motion delay, that the district court made its finding on May 13, 1998, rather than contemporaneously, that the delay was a result of the defendant's pretrial motions, was not error.  The third disputed period, August 3, 1998 to August 11, 1998, was excludable because both parties stipulated that a continuance to August 11 was necessary to permit Hazlewood's new attorney time to prepare.  The district court properly excluded the last disputed period, August 11, 1998 to April 6, 1999, as serving the "ends of justice" by referencing the complex nature of the case, new defense counsel's statement that he was unsure how much preparation time he needed, and the government's interest in keeping the same prosecutor on the case. 

Hazlewood also challenged the district court's upward adjustments of his sentence for abusing a position of trust, defrauding vulnerable victims, and having a leadership role.  The district court correctly found that Hazlewood occupied a position of trust because his position as president, chairman, and sole shareholder of LRD Industries and managing general partner of LRD Drilling Partners I ("DP I") gave him unfettered discretion and a lack of supervision that enabled him to perpetrate the fraud and conceal it from the investors.  Nor did the district court clearly err in finding that some of Hazlewood's victims were vulnerable due to their advanced age.  Contrary to Hazlewood's argument, the fact that the investors were wealthy did not make them less vulnerable as elderly victims.  The district court also did not clearly err in finding that Hazlewood was the leader of an "extensive" criminal operation.  His scheme featured at least one knowing participant, various employees over the years, 55 DPI investor-victims, and $1.9 million in losses from DP I.  Hazlewood further maintained that the calculated amount of loss to victims should not have included losses from his other oil and gas partnerships, which were not charged as being part of the DP I fraud.  However, the court did not clearly err in using the total loss figure because all of the oil and gas partnerships were managed by Hazlewood's two companies, and many of the partnerships had overlapping investors, demonstrating that the partnerships were part of a common scheme.  Finally, Hazlewood argued that he received ineffective assistance of counsel because his attorney  (1) failed to pursue or advise him on plea negotiations, (2) mistakenly believed that the right to appeal the denial of his pretrial motions would be automatically preserved if Hazlewood pled guilty, and (3) did not prepare for trial.  Finding the record insufficient for it to determine this issue on direct appeal, the USCA concluded that it was more appropriately raised in a collateral proceedings.  The USCA could not determine on the record before it, for example, the nature of the communications between Hazlewood and his counsel, including the scope of counsel's engagement and the instructions he was given, the nature of the plea negotiations, the extent of the deficient preparation and the ensuing prejudice, if any.  The USCA thus affirmed Hazlewood's convictions and sentences.

7)  BANKRUPTCY:  In re Roussos, 00-56348 (9th Cir. Apr. 24, 2002) (unpublished). Noonan and Wardlaw, Circuit Judges, and Schwarzer, District Judge.
 The Roussoses, Chapter 7 debtors, appealed the bankruptcy court's summary judgment in an 11 USC Sec. 523 adversary proceeding determining a state court judgment in favor of Michaelides to be nondischargeable. The USCA affirmed.  The Roussoses maintained that the bankruptcy court erred in applying collateral estoppel on the basis of the state court judgment.  They conceded that the substantive elements of Sec. 523(a)(4) and (a)(6) were satisfied by application of collateral estoppel to the state court findings, but they argued that because the state court applied the "benefit of the bargain" measure of damages, the amount of compensatory damages was not actually litigated.  However, the state court proceedings focused on whether the Roussoses had perpetrated a fraud and inflicted willful and malicious injury and eventuated in a judgment expressly awarding "compensatory damages" for defendants' "com-mission of actual fraud in a fiduciary relationship."  Thus the parties actually litigated the issue of damages for fraud and it was necessarily decided.  The state court's judgment was well within the scope of a debt for money obtained by fraud.  Cohen v. De La Cruz, 523 US 213 (1998).

 The USCA rejected the Roussoses' contention that the bankruptcy court erred in finding the punitive damage award nondischargeable.  First, they argued that the award did not bear a reasonable relationship to the compensatory damages awarded for fraud.  However, the state appellate court held that the punitive damage award of less than two-thirds of the compensatory damages was not excessive.  The bankruptcy court had no jurisdiction to review the state court's judgment.  Second, the Roussoses were incorrect in asserting that the punitive damages were unrelated to their wrongful conduct; the state court's imposition of punitive damages rested on its finding of malice, oppression, and intentional fraud in accordance with the requirements of California Civil Code Sec. 3294.

8)  BANKRUPTCY:  In re Sahuaro Petroleum & Asphalt Co., 01-55963 (9th Cir. Apr. 22, 2002) (unpublished). Fernandez and Rawlinson, Circuit Judges, and Shea, District Judge.

 Haberbush, trustee in bankruptcy for Sahuaro Petroleum & Asphalt Company ("Sahuaro"), appealed the judgment of the District Court for the Central District of California, Judge Tevrizian presiding, dismissing his action against Clark Oil Trading Company (COTC) and Paribas Corporation. 

 The USCA affirmed.   Sahuaro, the wholly owned subsidiary of Edgington Oil Company, issued guaranties of Edgington's debts to COTC, subject to certain limitations involving Sahuaro's benefit from the loans and Sahuaro's net worth.  Those constituted the guaranty promises.  In separate security agreements, Sahuaro promised that its receipts from the sale of its products would go to COTC, which was authorized to apply them to payments of the principal and interest owed by Edgington on the loans but which could also elect to return all or a portion to Sahuaro.  These were the payment promises. COTC applied most of the receipts to the payments of the loans, but gave some back to Sahuaro.  After Sahuaro went into bankruptcy, Haberbush brought this action.  He maintained that COTC breached its contract with Sahuaro.  The usual breach of contract elements (agreement, consideration, performance by plaintiff, breach by defendant and damages) applied.  At issue was whether Haberbush effectively alleged a breach.  In determining that, the USCA recognized that it could and should construe the agreements together.  It then had to consider whether, as pled, there was an ambiguity which could propel Haberbush beyond the pleading stage.  The guaranty promises and the payment promises are distinct and do not depend on each other for interpretation or performance.  Nothing in the agreements, and nothing Haberbush pled, suggests that one limits the other.  Rather, it was plain that the payment promise assured that Edgington's debt would be reduced over time by use of its subsidiary's receipts, while the guaranty promise assured that Sahuaro's assets would also be available under certain circumstances.  Because the guaranty promises did not limit the payment promises, COTC did not breach its agreement with Sahuaro when it applied the funds to Edgington's debt.  Haberbush pointed to the fact that the implied covenant of good faith and fair dealing applied to the contracts.  But that avails him nothing because the complaint does not allege bad faith (indeed, Haberbush conceded that he could not plead bad faith), and, at any rate, all COTC did was allocate the payments in precisely the manner that Sahuaro agreed it could.  The implied covenant could not be used to obliterate the express terms of a contract.  There could not have been a breach of the covenant of good faith and fair dealing.  The same followed as to the common counts, each of which had tot draw sustenance from the notion that it would be inequitable for COTC to retain the amounts it obtained due to the payment promises.  The difficulty that inheres in Haberbush's other claims affected these claims as well.  To show inequity, Haberbush had to point to some unfairness in the application of the payments by COTC.  But that would require Haberbush to show that the application of the funds was somehow limited by the guaranty promises.  He could not use that counterfactual premise to recover on common counts where the payments themselves were pursuant to a contact entered into and performed in good faith according to its own terms.

9)  BANKRUPTCY:  In re Reiff, 00-56740 (9th Cir. Apr. 16, 2002) (unpublished).  Reinhardt and Graber, Circuit Judges, and Hunt, District Judge.
 Reiff challenged an order of the bankruptcy court which allocated separate property assets to pay administrative claims, classified claims as either community property or separate property claims, authorized payments to some creditors (including Reiff's ex-husband pursuant to a court-approved settlement), and authorized payment of a tax lien to the IRS.  The BAP dismissed the appeal, citing Reiff's lack of standing to contest the order. 
 The USCA affirmed.  Because bankruptcy cases tend to implicate the interests of many, the USCA has developed a prudential standing requirement called the "person aggrieved" test.  Simply stated, only persons aggrieved by an order may challenge it.  Fondiller v. Robertson, 707 F.2d 441 (9th Cir. 1983).  An appellant is aggrieved if directly and adversely affected pecuniarily by an order of the bankruptcy court; in other words, the order must diminish the appellant's property, increase its burdens, or detrimentally affect its rights.  Generally, if a debtor is "hopelessly insolvent," that debtor lacks standing to challenge orders that affect the size of the estate.  Because there likely will be no residual estate in such a circumstance, such an order does not diminish the debtor's property, increase the debtor's burdens, or affect detrimentally the debtor's rights.  Reiff is hopelessly insolvent.  The estate is uncontestedly valued that around $2.5 million.  Liabilities total $4.196 million, $3.15 million of which is a settlement award to Reiff's ex-husband (the Morse Settlement).  The amount of the Morse Settlement was not before the USCA.  On April 19, 2000, the bankruptcy court entered a judgment approving the Morse Settlement.  Reiff did not appeal that judgment.  Because she did not appeal that judgment, the amount due Morse under that agreement is, for purposes of the instant proceedings, final and unreviewable.  Moreover, because the contested order did not increase or affect in any way the total amount of debt faced by Reiff, it did not increase her burdens or affect detrimentally her rights.  Finally, Reiff maintained that a failure to review the Dividend Order would offend her right to due process.  Procedural due process rights apply only to deprivations of life, liberty, or property.  The Dividend Order did not affect Reiff's life, liberty, or property because the claims it pays already have been allowed against the estate by prior orders.  Because there will be no surplus after creditors are satisfied, Reiff has no residual estate to protect.  Thus, no protected interest is affected and her due process rights are not violated.

10)  BANKRUPTCY:  In re Housing Residential Distress Property Fund, Ltd., 01-16763 (9th Cir. Apr. 16, 2002) (unpublished).  Browning, Kleinfeld, and Gould, Circuit Judges.

 Evans appealed pro se the Bankruptcy Appellate Panel's decision affirming the bankruptcy court's summary judgment in favor of the bankruptcy trustee in this adversary proceeding concerning Evans' claimed entitlement to a constructive trust over the debtor's assets.  The USCA affirmed.  Because the issue was fully and fairly litigated in a prior Texas state court action, Evans was precluded from re-litigating whether he was entitled to a constructive trust.  Therefore, no genuine issue of material fact remained and summary judgment was proper.  The BAP also properly concluded that Evans failed to "specifically and directly" trace the alleged trust property back to the alleged fraudulent activity giving rise to the trust.

11)  BANKRUPTCY / TAXATION:  In re Kelly, 01-55170 (9th Cir. Apr. 17, 2002) (unpublished).  Browning, Kleinfeld, and Gould, Circuit Judges.
 Chapter 13 debtor Kelly appealed a BAP decision affirming the bankruptcy court's determination that he is liable for $176,776 in unpaid federal income taxes for 1990, based on the distributive share of his limited partnership.  The USCA had jurisdiction pursuant to 28 USC Sec. 158(d), and reviewed de novo and affirmed.  The BAP properly upheld the bankruptcy court's decision because Kelly is liable for taxes on his distributive share of the partnership income, even if that income was never directly distributed to him.

12)  BANKRUPTCY:  In re Coleman, 00-16687 (9th Cir. Apr. 12, 2002) (unpublished).  Thompson, W. Fletcher, and Berzon, Circuit Judges.

 Chapter 11 debtor Coleman appealed a BAP order affirming the bankruptcy court's denial of her motion to compel abandonment of two parcels of property under 11 USC Sec. 554(b).  Agreeing with the BAP that the Bankruptcy Court properly concluded that the res judicata effect of an earlier-argued Confirmed Plan of Reorganization ("Plan") precluded the debtor from seeking to compel the abandonment, the USCA affirmed.  In the bankruptcy setting, res judicata prevents a party from later raising issues that could have been raised during the confirmation of a plan of reorganization.  It was undisputed that the trustee and debtor were parties to both the confirmation and the Sec. 554 proceeding and that the bankruptcy court had jurisdiction to confirm the Plan.  Bankruptcy Code Sec. 1141(a) provides that the provisions of a confirmed plan bind the debtor, any entity issuing securities or acquiring property under the plan, and any creditor of, or equity security holder or general partner in, the debtor.  The principle that a confirmed plan is a binding final order accorded full res judicata effect is broadly applied. Here, the debtor not only was a party to a confirmation proceeding designed to litigate fully the terms of the Plan, but in fact litigated and lost in her attempt to remove the disputed properties from the estate and from the trustee's control.  Once the Plan was confirmed, it was a binding final judgment on both debtor and trustee.  The debtor nevertheless argued that her motion to compel abandonment was not foreclosed by the earlier confirmation of the Plan because the Plan itself grants the debtor the right to pursue Sec. 554(b) relief, or at least subjects the trustee to the obligation to be subject to such an action.  This is so, she argued, because the Plan vests in the trustee the rights, duties and powers as may be exercised by a trustee in a Chapter 7 case.  Section 4.7.2 of the Plan, which contains the "Chapter 7" language on which the debtor bases her argu-ment, does not merely vest the trustee with the "rights, duties and powers as may be exercised by a Trustee in a Chapter 7 case."  It does so with an enumerated list that includes "maintenance and administration of the assets of the Debtor or the estate" and "such other rights, duties and powers …. That are vested in the Trustee pursuant to the Plan."  The Plan, in turn, grants the trustee "sole and exclusive control over the property of the estate," gives him "authority to … dispose of the property of the estate," and specifically retains the two disputed properties as part of the estate.  The debtor cannot now contend that the Chapter 7 language overcomes the very clauses that limit that language.  The USCA also rejected the debtor's argument that the trustee should be equitably estopped from opposing her attempts to compel abandonment of a piece of property called the "Forest Avenue Property."  The BAP correctly concluded that this issue could not be considered on appeal because the issue was not raised sufficiently for the Bankruptcy Court to rule on it.  This case, the USCA concluded, did not present one of the "narrow" exceptions to the general rule prohibiting the raising of arguments for the first time on appeal.  The USCA thus affirmed the BAP and Bankruptcy Court's holding that the Confirmed Plan of Reorgani-zation precluded the debtor from brining the Sec. 554 motion.  Because the USCA affirmed on this ground, it did not need to reach the debtor's argument that the Bankruptcy Court's erred in holding that she failed to sustain her burden of proof in her attempt to compel abandonment.

13)  BANKRUPTCY:  In re Gross, 01-55696 (9th Cir. Apr. 18, 2002) (unpublished).  Pregerson and Trott, Circuit Judges, and Fitzgerald, District Judge.
 The District Court for the Central District of California, Judge Morrow presiding, provided Gross with an opportunity to prove his inability to pay before enforcing a contempt order and imposing sanctions.  Gross submitted documents related to his inability to pay.  Because the district court has not yet made a determination regarding Gross's ability to pay, sanctions have not been im-posed, and the contempt order was not final and appealable.  The USCA thus dismissed the appeal for lack of jurisdiction.  A contempt order is not a final order under 28 USC Sec. 1291 prior to the imposition of sanctions.  Weyerhaeuser Co. v. Int'l Longshoremen's & Warehousemen's Union, 733 F.2d 645 (9th Cir. 1984).

14)  BANKRUPTCY / RICO:  Hassell v. Curley, 01-15243 (9th Cir. Apr. 16, 2002) (unpublished).  Browning, Kleinfeld, and Gould, Circuit Judges.
 The District Court for Arizona, Judge Carroll presiding, dismissed without leave to amend Hassell's complaint alleging, among other things, violation of the Racketeer Influenced and Corrupt Organization Act (RICO).  Hassell appeal.  The USCA affirmed.  The district court properly concluded that Hassell's RICO claim arising from an October 1994 corporate merger was barred by the four-year statute of limitations.  The district court was not required to inform Hassell of the deficiencies with his amended complaint and grant him leave to amend as it was clear that he could not allege a timely RICO claim.  Hassell's contention that the district court improperly relied upon a transcript of a settlement hearing among the parties in a related state court action was not supported by the record.  The USCA did not consider the district court's dismiss of Hassell's remaining causes of action and imposition of Rule 11 sanctions, as Hassell did not challenge those rulings on appeal.  The USCA denied all pending requests for sanctions and costs pursuant to Fed. R. App. P. 38 and for attorney's fees pursuant to Fed. R. App. P. 39, without prejudice to the filing of such motions in accordance with FRAP 38 and Ninth Circuit Rule 39-1.6. 

15)  IMMIGRATION:  Sarian-Anjelia v. Ashcroft, 00-70757 (9th Cir. Apr, 16, 2002) (unpublished).  Fernandez and Rawlinson, Circuit Judges, and Shea, District Judge.

 The petitioner sought review of the BIA's denial of her claim for asylum and withholding of deportation.  The USCA denied the petition.  Under INS v. Elias-Zacarias, 502 US 478 (1992), the BIA's determination that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole.  It can be reversed only if the evidence presented was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.  When an alien seeks to overturn the BIA's adverse determination he must show that the evidence he presented was so completing that no reasonable factfinder could fail to find the requisite fear of persecution.  Credibility determinations are judged by the same basic standard.  However, that determination must be supported by a specific, cogent reason.  Here the petitioner's claim failed because the BIA determined that she was not credible.  The USCA was unable to say that the BIA's determination was not supported by the evidence in the record.  The petitioner's testimony showed deep and central inconsistencies when compared to her application.  Those in-consistencies went to the heart of her claim.  For example, the evidence regarding her ethnic and religious background was conflicting.  More importantly, her testimony before the IJ about the wrongs to which she was allegedly subjected bore faint resemblance to the de-scriptions in her application.  On this record, the USCA could not say that no reasonable factfinder could fail to find her credible. The BIA thus could properly determine that she was not entitled to asylum.  Because the petitioner did not meet the requirements for eligibility for asylum, she was not entitled to withholding of deportation either.

16)  IMMIGRATION:  Estabillo v. INS, 00-70532 (9th Cir. Apr, 23, 2002) (unpublished).  Thompson, O'Scannlain, and Berzon, Circuit Judges.
 The petitioners sought review of a BIA final order of deportation, finding them excludable from the United States because they did not possess valid immigrant visas and labor certifications following the expiration of their status as parolees.

The USCA denied the petition.  The petitioners were paroled into the U.S. pursuant to 8 USC Sec. 1182(d)(5)(A).  They resided in the U.S. for several years, during which time their parolee status periodically expired and was renewed.  After  six years, the INS notified them that their parole status would no longer be renewed and they would be required to depart the country.  The INS subsequently initiated exclusion proceedings against them.  The petitioners' case was heard and rejected by an immigration judge, and the BIA dismissed their appeal.  They raised two arguments.  First they maintained that they should have been placed in deportation rather than exclusion proceedings.  The USCA disagreed, noting that it is well established that aliens who have been paroled into the U.S. are subject to exclusion proceedings; deportation proceedings are reserved for aliens who have "entered" the United States.  The petitioners thus were properly placed in exclusion proceedings.  Second, the petitioners argued that the U.S. should be estopped from excluding and deporting them because (1) the INS failed to explain that their stay would be temporary and (2) officials allegedly made representations which offered them asylum and/or permanent legal resident status.  The USCA was not persuaded by this argument.  The INS's failure to inform the petitioners of the temporary nature of their parole status did not rise to "affirmative misconduct going beyond mere negligence," a necessary showing to apply estoppel against the government.  Sulit v. Schiltgen, 213 F.3d 449 (9th Cir. 2000).  Nor do two letters from officials support the petitioners' estoppel claim.  There was no evidence that they saw these letters at any relevant time, or that they relied on any representations in them.  Any reliance on the letters would be unreasonable in any event, as they were not addressed to the petitioners and did not specifically refer to them.