1)  ANTITRUST:  Knevelbaard Dairies v. Kraft Foods, Inc., 99-55327 (9th Cir. Dec. 1, 2000).  A horizontal price-fixing scheme among buyers to depress the price of the plaintiff's milk products constitutes an actionable injury under California's Cartwright Act, even if the result is lower manufacturing costs for the buyers' products and thus lower consumer costs;  Judge Paez dissented on two grounds:  first, he could not agree with the majority's conclusion that the USCA had jurisdiction over this appeal as the record contains no "final decision" of the dis-trict court as 28 USC Sec. 1291 requires;  second, even if the USCA had jurisdiction, he did not agree with the majority that the plaintiffs had adequately stated claims for relief under California's Cartwright Act and unfair competition law. Reinhardt and Paez (dissenting), Circuit Judges, and Dwyer (author), District Judge.  J. Noblin of Los Angeles, CA, for the plaintiffs-appellants;  M. Kelley of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

2)  TAXATION:  Geary v. CIR, 99-70571 (9th Cir. Dec. 27, 2000).  A taxpayer is not entitled to an income tax deduction for expenses incurred to place a proposition affecting his working conditions on a local ballot.  B. Fletcher, O'Scannlain (author), and Gould, Circuit Judges.  R. Goldstein of San Francisco, CA, for the appellant;  L. Argrett of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

3)  TAXATION:  Shwarz v. USA, 99-55618 (9th Cir. Dec. 8, 2000).  26 USC Sec. 7431 actions can be brought for improper disclosures that do not occur in connection with tax collection (e.g., disclosures that occur in connection with the determination of tax liability);  a suit for improper disclosures that occur in the course of collection activity must proceed under Sec. 7433, not under Sec. 7431.  Tashima (author) and Tallman, Circuit Judges, and Alsup, District Judge.  R. Schriebman of Rolling Hills Estates, CA, for the plaintiffs-appellants;  J. Dudeck of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

4)  TAX FRAUD:  USA v. Carlson, 99-10525 (9th Cir. Dec. 19, 2000).  In a prosecution for tax evasion under 26 USC Sec. 7201, evidence of an affirmative, but perhaps feeble, attempt to conceal assets from the IRS was sufficient to support a conviction.  Hug, Trott (author), and Wardlaw, Circuit Judges.  FPD P. Wolff of Honolulu, HI, for the defendant-appellant;  AUSA J. Seabright of Honolulu, HI, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

5)  ENVIRONMENTAL LAW:  Natural Resources Defense Council v. Southwest Marine, 99-56532 (9th Cir. Dec. 19, 2000).  Finding that the plaintiffs had standing, that their notice letter was adequate, that the defendant's violations were ongoing, and that neither the district court's injunctive measures nor its civil penalty were abuses of discretion, the USCA upheld the judgment for the Natural Resources Defense Council, San Diego Baykeeper, and Kenneth Moser, in their citizen enforcement action under Sec. 505(a) of the Clean Water Act.  Kozinski, Graber (author), and Fisher, Circuit Judges.  D. Mulliken of San Diego, CA, for the appellant;  C. Crandall of San Luis Obispo, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6)  ENVIRONMENTAL LAW:  Okanogan Highlands Alli-ance v. Williams, 99-35537 (9th Cir. Dec. 29, 2000).  A discussion of mitigating measures in general terms in a Final Environ-mental Impact Statement ("EIS") prepared by the United States Forest Service was adequate where the actual adverse effects were uncertain, and the EIS considers extensively the potential effects and mitigation processes;  the Forest Service thus did not violate National Environmental Policy Act, the Administrative Procedure Act, the Organic Act, or its trust obligations.  Hall, Rymer, and Graber (author), Circuit Judges.  R. Flynn of Boulder, CO, for the plaintiffs-appellants;  S. Suagee of Nespelem, WA, for the plaintiff-intervenor-appellant;  E. Shenkman of Washington, DC, for the defendants-appellees;  M. Malmquist of Salt Lake City, UT, for the defendant-intervenor-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 7)  BANKRUPTCY:  In re Slyman, 99-55392 (9th Cir. Dec. 12, 2000).  A homeowners association must demonstrate all five elements of common law fraud, including misrepresentation and reliance, to prove that its claim for delinquent homeowners due is nondischargeable under 11 USC Sec. 523(a)(2)(A).  Tashima and Tallman (author), Circuit Judges, and Alsup, District Judge.  G. Van Gemert of Irvine, CA, for the appellant;  T. Slyman pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 

8)  BANKRUPTCY:  In re Smith, 98-56795 (9th Cir. Dec. 19, 2000).  An indefinite "continuance" of a Bankruptcy Code Sec. 341(a) "meeting of creditors" does not toll the period for filing objections to property claimed as exempt under Sec. 522(l); the conversion of a case from Chapter 11 to Chapter 7 does not trigger a new period within which to file objections to property already excluded as exempt during the Chapter 11 proceeding;  dissenting, Judge O'Scannlain disagreed with the majority's conclusion that a bankruptcy trustee is prohibited from adjourning a meeting of creditors "until further notice";  he would hold that the creditors objected in a timely manner in this case;  consequently, he would reach the merits of whether the Bellwood holdings constitute a "private retirement plan" under California law (which he thought it did not).  Reinhardt (author) and O'Scannlain (dissenting), Circuit Judges, and Schwarzer, District Judge.  R. Moneymaker of Los Angeles, CA, for the appellant;  S. Byrne of Arcadia, CA, and H. Frazer of Cerritos, CA, for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

9)  TRADEMARKS:  Kassbaum v. Steppenwolf Productions, 99-55656 (9th Cir. Dec. 29, 2000).  Neither Sec. 32(1)(a) of the Lanham Trademark Act, 15 USC Sec. 1114(1)(a), nor broad contract language precluding a former member of the band "Steppenwolf" from performing under the name of his former band, barred him from truthfully referring to himself in promotional materials for a new band as "formerly of Steppenwolf," or as "original member of Steppenwolf," or as "original founding member of Steppenwolf."  Pregerson, W. Fletcher, and Gould (author), Circuit Judges.  A. Hyman of North Hollywood, CA, for the appellant;  L. Machtinger of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

10)  EMPLOYMENT DISCRIMINATION: Costa v. Desert Palace, Inc., 99-15645 (9th Cir. Dec. 29, 2000).  In the absence of substantial evidence of conduct or statements by decision-makers directly reflecting discriminatory animus, the district court's giving of a mixed-motive instruction is reversible error.  Kozinski and Kleinfeld, Circuit Judges, and Schwarzer (author), District Judge.  M. Ricciardi of Las Vegas, NV, for the defendant-appellant;  R. Peccole of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

11)  ERISA:  Trustees of the Directors Guild of America-Producers Pension Benefits Plan v. Tise, 96-16799 (9th Cir. Dec. 6, 2000).  Because a Qualified Domestic Relations Order ("QDRO") only renders enforceable an already-existing interest, there is no requirement that a QDRO must be obtained before the plan participant's benefits become payable on account of his retirement or death.  Noonan, Thomas, and Berzon (author), Circuit Judges.  J. Shopoff of San Francisco, CA, for the plaintiff-appellant;  R. Dean of Pacific Palisades, CA, for the defedant-appellant; C. Elin of Novato, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

12)  TORTS  / GOVERNMENT IMMUNITY: GATZ / Airlog Co. v. USA, 99-36024 (9th Cir. Dec. 13, 2000).  The United States is immune from liability under the Federal Tort Claims Act for the FAA's alleged negligence in issuing aircraft certifications.  Alarcon, Ferguson, and McKeown (author), Circuit Judges.  S. Devereaux of Palo Alto, CA, for the appellants;  B. O'Malley of Washington, DC, for the appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

13)  TORTS:  Leipart v. Guardian Industries, Inc., 98-56637 (9th Cir. Dec. 12, 2000).  The Consumer Product Safety Act, 15 USC Secs. 2051-2084, does not preempt state common-law claims premised on violations of requirements that are "identical" to those already imposed by federal standards.  Canby, Noonan, and W. Fletcher (author), Circuit Judges.  J. Nola of Santa Monica, CA, for the appellants;  D. Stephenson of Ann Arbor, Michigan, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

14)  DISCRIMINATION IN EDUCATION:  Smith v. Univ. of Washington, Law School, 99-35209 (9th Cir. Dec. 4, 2000).  Justice Powell's opinion in Regents of the Univ. of Cal. v. Bakke, 438 US 265 (1978), still describes the law in the Ninth Circuit and requires a determination that a properly designed and operated race-conscious admissions program at the School of Law at the University of Washington not be in violation of Title VI or the Fourteenth Amendment.  Reavley, Fernandez (author), and Thomas, Circuit Judges.  M. Rosman of Wash-ington, DC, for the plaintiffs-appellants;  D. Burman of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

15)  SANCTIONS:  Fields v. Gates, 99-55605 (9th Cir. Memorandum filed Nov. 14, 2000 has been redesignated an opinion filed Dec. 4, 2000).  Sanctions imposed under Rule 11 and the court's inherent power against an attorney for "judge shopping" were inappropriate where the adverse party declined to seek enforcement of an order for costs, and the underlying case had already been dismissed at the time sanctions were sought.  Pregerson, W. Fletcher, and Gould, Circuit Judges.  Per Curiam.  J. Reichmann of Venice, CA, for the appellant;  L. Berger of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

16)  HOUSING:  Tyler v. Cuomo, 99-16242 (9th Cir. Dec. 15, 2000).  Individual members of the public had standing against a city as third-party beneficiaries to challenge aspects of a completed low-income housing project, as a memorandum of agreement entered into by the relevant agencies and individuals stipulated that such persons could raise objections to the project any time during its implementation.  Kleinfeld, Tashima (author) and Berzon, Circuit Judges.  A. Rossman of San Francisco, CA, for the appellants;  L. Wong of San Francisco, CA for the appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

17)  SOCIAL SECURITY / TAXATION:  Chapman v. Apfel, 99-35614 (9th Cir. Dec. 29, 2000).  A timely filed tax return of self-employment income, not just 1099 forms, is required to overcome the otherwise conclusive presumption that the absence of an entry of self-employment earnings means that there were no such earnings;  here, the ALJ thus did not err by failing to consider the Form 1099s as proof of self-employment income for purposes of determining the plaintiff's insured status.  Beezer, Rymer (author), and Graber, Circuit Judges.  D. Lowry of Portland, OR, for the plaintiff-appellant;  R. Wetmore of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

18)  CIVIL PROCEDURE / FRCP 59:  Tillman v. Association of Apartment Owners of Ewa Apartments, 99-15735 (9th Cir. Dec. 12, 2000).  Plaintiff's motion for a new trial under Fed. R. Civ. P. 59(a) was untimely filed;  Fed. R. Civ. P. 6(b) bars a district court from extending the 10-day filing period for a new trial motion as set forth under Rule 59(b);  the district court was thus without jurisdiction to consider the motion and the USCA did not have jurisdiction to hear an appeal from the order denying the motion.  Hug (author), Trott, and Wardlaw, Circuit Judges.  A. Wooten of Honolulu, HI, for the appellant;  D. Knowlton of Honolulu, HI for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 

19)  FIRST AMENDMENT:  Western Center for Journal-ism v. Cederquist, 99-35377 (9th Cir. Dec. 20, 2000).  Plaintiff's claim that the IRS reviewed its tax exempt status in an ef-fort to retaliate against it for its First Amendment activity, accrued at the earliest when the plaintiff published an article disclosing the allegedly wrongful conduct;  the complaint was not timely.  Reinhardt (concurring), Brunetti, and Rymer, Circuit Judges.  Per Curiam.  L. Klayman of Washington, DC, for the plaintiff-appellant;  J. Oppenheimer of Washington, DC, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 

20)  CIVIL RIGHTS:  Adam v. Hawaii, 99-15988 (9th Cir. Dec. 20, 2000).  Abstention under Younger v. Harris, 401 US 37 (1971), does not support the dismissal with prejudice of an action against local police officers for damages under 42 USC Sec. 1983.  Hug, Trott (author), and Wardlaw, Circuit Judges,  S. Luiz of Honolulu, HI, for the plaintiff-appellant;  S. Christen-sen of Hilo, HI, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

21)  NATIVE AMERICAN LAW:  USA v. Washington, 99-35104 (9th Cir. Dec. 13, 2000).  The treaty-based decision in USA v. Washington, 384 F.Supp 312 (W.D. Wash. 1974), holding that the off-reservation salmon catch of a non-treaty Indian tribe should come out of the share of the State applies to the on-reservation catch of a tribe whose reservation was created, not by treaty but by Executive Order.  Schroeder, Beezer, and Hawkins (author), Circuit Judges.  R. Reich of Tahola, WA, and H. Chesnin of Seattle, WA, for the appellees;  J. Geck of Olympia, WA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

22)  NATIVE AMERICAN LAW:  Muckleshoot Indian Tribe v. Lummi Indian Nation, 99-36224 (9th Cir. Dec. 13, 2000).  The meaning of the phrase "south to the present environs of Seattle," as used in Finding 46 of USA v. Washington, 348 F.Supp. 312 (W.D. Wash. 1974), means "to the northern out-skirts of Seattle."  Schroeder (author), Beezer, and Hawkins, Circuit Judges.  H. Johnsen of Bellingham, WA, for the defendant-appellant;  G. O'Leary of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

23)  NATIVE AMERICAN LAW:  USA v. Muckleshoot Indian Tribe, 99-36960 (9th Cir. Dec. 13, 2000).  In Finding 76 of USA v. Washington, 348 Fed. Supp. 312 (W.D. Wash. 1974), the Muckleshoot's saltwater usual and accustomed fishing area was limited to Elliot Bay.  Schroeder, Beezer, and Hawkins (author), Circuit Judges.  A. Klapstein of Tacoma, WA, for the intervenor-plaintiff / petitioner-appellee;  G. O'Leary of Seattle, WA, for the intervenor-plaintiff / respondent-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 

24)  NATIVE AMERICAN LAW:  Lower Elwha Band of S'Klallams v.  Lummi Indian Tribe, 98-35964 (9th Cir. Dec. 13, 2000).  Judge Boldt, in authoring USA v. Washington, 348 Fed. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), intended to exclude the Strait of Juan de Fuca and the mouth of the Hood Canal, and to include Admiralty Inlet, in Lummi Indian Tribe's usual and accustomed fishing grounds and stations.  Schroeder, Beezer (author), and Hawkins, Circuit Judges.  H. Johnson of Bellingham, WA, for the defendant-appellant;  K. Nelson of Tacoma, WA, for the plaintiffs-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

25)  IMMIGRATION LAW / ASYLUM:  Cortez-Acosta v. INS, 97-71033 (9th Cir. Dec. 8, 2000).  When an adjudicator acts without the minimal trappings of an adjudicatory proceed-ing, such as in the absence of a contemporaneous recording, he is no longer entitled to the deference normally owed a judicial officer.  Kozinski, Kleinfeld, and McKeown, Circuit Judges.  Per Curiam.  R. Wilkinson-Domingo of San Francisco, CA, for the petitioner;  A. Hausman of Washington, DC, for the respon-dents.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

26)  IMMIGRATION LAW / ILLEGAL REENTRY: USA v. Fresnares-Torres, 99-30171 (9th Cir. Dec. 18, 2000).  The fact of a prior conviction is not an element of the offense of ille-gal reentry after deportation for an aggravated felony in violation of 8 USC Sec. 1326(b)(2) and the government need not charge such a fact in an indictment for the illegal reentry.  Goodwin (author), Alarcon, and McKeown, Circuit Judges.  AFPD M. Schwartz of Tacoma, WA, for the defendant-appellant;  AUSA A. Storm of Tacoma, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

27)  IMMIGRATION LAW / PRIOR FELONIES: USA v. Pacheco-Zepeda, 99-50720 (9th Cir. Dec. 6, 2000).  Under Almendarez-Torres v. USA, 523 U.S. 224 (1998), a district court may properly enhance an alien's sentence for his prior aggravated felony convictions, although the government need not include those convictions in an indictment, submit them to a jury, or prove them beyond a reasonable doubt.  Pregerson, W. Fletcher, and Gould (author), Circuit Judges.  DFPD K. House of Los Angeles, CA, for the defendant-appellant;  AUSA J. Ro-senbluth of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

28)  IMMIGRATION LAW / ARREST PRACTICES: USA v. Ruiz-Lopez, 98-50599 (9th Cir. Dec. 8, 2000).  Evidence that an alien is taken into custody in a Border Patrol processing center, and evidence of the standard arrest practices of agents at that location, was insufficient to sustain a conviction for being an alien "found in the United States" after deportation following an aggravated felony conviction in violation of 8 USC Sec. 1326(a).  Pregerson, W. Fletcher, and Gould (author), Circuit Judges.  C. Chapman of Coronado, CA, for the defendant-appellant;  J. Suarez of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

29)  IMMIGRATION LAW / SENTENCING:  USA v. Corona-Sanchez, 98-50452 (9th Cir. Dec. 8, 2000).  Under Sentencing Guideline Sec. 2L1.2(b)(1)(A), the defendant's conviction under California Penal. Code Secs. 448 and 666 constituted an "aggravated felony" as that term is defined in 8 USC Sec. 1101(a)(43)(G) and merited a sentence enhancement.  Brunetti (author), Rymer, and Silverman, Circuit Judges.  W. Gerboth of San Diego, CA, for the defendant-appellant;  AUSA J. Jackson of San Diego, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

30)  SEARCH & SEIZURE:  USA v. Henderson, 99-10526 (9th Cir. Dec. 11, 2000).  On an issue of first impressions, the USCA followed USA v. Cooper, 133 F.3d 1394 (11th Cir. 1998), in holding that a lessee may have a reasonable expectation of privacy in a rental car on which the lease has expired.  Thompson (author), T.G. Nelson, and Silverman, Circuit Judges.  T. Naylor of Las Vegas, NV, for the defendant-appellant;  AUSA W. Ayers of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

31)  SEARCH & SEIZURE / STANDING:  USA v. Gamez-Orduno, 99-10443 (9th Cir. Dec. 14, 2000).  The appellants, who were overnight guests, staying at a house-trailer for food and rest, had standing to challenge the validity of a search of the trailer by government agents, no matter why the appellants were away from home and in need of shelter, and no matter whether the relationship between the host and these guests was a social or business one;  whether the appellants were likely to continue their drug smuggling activities the next day, or were admonished to stay inside to avoid detection, was irrelevant;  dissenting in part, Judge Noonan thought that the relationship between the appellants and the trailer's owner had no "suggestion of friendly hospitality"—the appellants arrived at the trailer "lying down on the bed in the back" of a pick-up truck driven by a man they did not know; once inside the trailer they were instructed not to move about and "not to go out at all."  Judge Noonan thought that the district court did not err in its factual finding that the travelers were in the trailer for a purely commercial purpose and that it did not err in its legal conclusion that they had no legitimate expectation of privacy.  Noonan (dissenting in part), Thomas, and Berzon (author), Circuit Judges.  L. Bowman of Tucson, AZ, for the defendant-appellant;  AUSA R. Miskell of Tucson, AZ, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

32)  INVENTORY SEARCHES:  USA v. Penn, 00-30033 (9th Cir. Dec. 6, 2000).  Portland City Code requiring an inventory search of all property in an impounded vehicle (in this case a car was impounded for being driven without proof of insurance) authorizes a police officer to permit the driver to remove personal property from the vehicle but only after the inventory has been completed and before the vehicle is towed.  Beezer, Rymer (author), and Graber, Circuit Judges.  J. Marcus of Washington, DC, for the plaintiff-appellant;  T. Coan of Portland, OR, for the defendant-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

33)  EVIDENCE:  USA v. Edwards, 99-30143 (9th Cir. Dec. 27, 2000).  It was prejudicial to admit into evidence a bail receipt bearing the defendant's name which linked him to a seized bag of drugs found in a car the defendant was driving at the time of his arrest, but which was registered to another person, where the prosecutor had removed the bag from the courtroom and tampered with it in violation of local rules;  under the unique circumstances present in this case, including the failure of the police to conduct a thorough initial search of the bag, the failure to inventory numerous papers belonging to the defendant that were seized from the car, the removal of the bag from the court-room and the timing and circumstances of the discovery of the bail receipt, the evidence was inherently unreliable and the bail receipt should have been excluded.  Pregerson and D.W. Nelson, Circuit Judges, and Karlton, District Judge.  Per Curiam.  P. Avenia of Tacoma, WA, for the defendant-appellant;  AUSA T. Ohms of Spokane, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

34)  MIRANDA WARNINGS:  USA v. Orso, 99-50328 (9th Cir. Dec. 8, 2000).  Deceptive police tactics employed prior to the giving of a Miranda warning, for the purpose of convincing a suspect to waive her Miranda rights and make incriminating statements, required suppression of the statements the suspect made after she waived those rights;  concurring in part and in the result, Judge O'Scannlain thought that with respect to statements the suspect made at the Postal Inspection Service Office the majority neglected to say that its opinion was based on a very controversial reading, and in Judge O'Scannlain's view an erroneous extension, of Oregon v. Elstad, 470 U.S. 298 (1985).  Reinhardt (author) and O'Scannlain (dissenting in part), Circuit Judges, and Schwarzer, District Judge.  E. Uhrig of Los Angeles, CA, for the appellant;  W. Clendening of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

35)  INDICTMENTS:  USA v. Garcia-Valenzuela, 99-50175 (9th Cir. Dec. 1, 2000).  A defendant may challenge the denial of a government motion to dismiss counts of an indictment despite having entered a guilty plea to those counts;  in addition, the USCA held that, on the merits, that denial of the government's motion was an abuse of discretion.  Canby and W. Fletcher (author), Circuit Judges, and Sedwick, District Judge.  FPD B. Lechman of San Diego, CA, for the appellant;  AUSA M. Wheat of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

36)  PLEA AGREEMENTS:  USA v. Nguyen, 99-10195 (9th Cir. Dec. 28, 2000).  A knowing and voluntary waiver of a defendant's right to appeal a clause in a plea agreement is enforce-able.  O'Scannlain (author), Leavy, and Gould, Circuit Judges.  A. Pirelli of San Francisco, CA, for the defendant-appellant;  J. Wilson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

37)  JURY INSTRUCTIONS:  Shacklesford v. Hubbard, 99-15263 (9th Cir. Dec. 12, 2000).  An erroneous felony-murder instruction permitting conviction of first-degree murder by ref-erence to a predicate felony that did not exist constituted harmless error where the requisite finding of malice was compelled by the jury's conviction of the defendant of first-degree murder by torture.  Thompson (author), T.G. Nelson, and Silverman, Circuit Judges.  W. Weiner of San Francisco, CA, for the petitioner-appellant;  M. Beatus of San Francisco, CA, for the re-spondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

38)  ARCHAEOLOGICAL RESOURCES PROTECTION ACT:  USA v. Lynch, 99-30325 (9th Cir. Dec. 7, 2000).  In a prosecution under 16 USCA Sec. 470ee(a), the Archaeological Resources Protection Act, for "knowingly" removing human remains from government land, the government must prove that the defendant knew or had reason to know that he was removing an "archaeological resource."  Goodwin (author), Schroeder, and Hawkins, Circuit Judges.  AFPD M. Geddes of Anchorage, AK, for the defendant-appellant;  AUSA S. Skrocki of Anchorage, AK, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

39)  CRIMINAL LAW / MEDICAL EXPERIMENTATION LAW:  Forbes v. Napolitano, 99-17372 (9th Cir. Dec. 29, 2000).  An Arizona statute that criminalizes any medical "experimentation" or "investigation" involving fetal tissue from induced abortion unless necessary to perform a "routine" pathological examination" or to diagnose a maternal or fetal condition that prompted the abortion, is unconstitutionally vague;  concurring, Judge Sneed agreed with the majority that the statute is unconstitutional, noting that the Supreme Court has identified three state interests in regulating abortion—safeguarding the health of the woman, protecting the potential life of the fetus, and regulating the medical profession—none of which justify Arizona's prohibitions of fetal experimentation.  Sneed (concurring), Schroeder (author), and Paez, Circuit Judges.  B. Ander-son of Tucson, AZ, for the plaintiffs-appellants;  C. Pyle of Tucson, AZ, for the defendants-appellees.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

40)  SENTENCING:  USA v. Aragbaye, 99-50603 (9th Cir. Dec. 13, 2000).  In sentencing the owner of a tax preparation business following his guilty plea to violations of 18 USC Sec. 287 (presenting false claims against the United States) and Sec. 371 conspiring to defraud the United States, the district court properly applied "tax-preparer" and "use of sophisticated means" enhancements.  Tashima (author) and Tillman, Circuit Judges, and Alsup, District Judge.  DFPD F. Dordi of Los Angeles, CA, for the defendant-appellant;  AUSA E. Artson of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

41)   SENTENCING:  USA v. Franklin, 99-10515 (9th Cir. Dec. 20, 2000).  To impose a sentence enhancement under Sec. 924(e) of the Armed Career Criminal Act based on prior burglary convictions, a district court may not rely on a combination of charging papers (which were insufficient alone) and a presentence report (also insufficient alone) for the purpose of "clearly establishing" that the predicate conviction was a "violent felony."  O'Scannlain, Leavy, and Gould (author), Circuit Judges.  D. Green of Las Vegas, NV, for the defendant-appellant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

42)  SENTENCING / SUPERVISED RELEASE:  USA v. Cade, 00-30026 (9th Cir. Dec. 20, 2000).  Although 18 USC Sec. 3583(e) limits to five years the length of any discrete term of supervised release that may be imposed on a defendant convicted of a "Class B" felony (in this case bank embezzlement in violation of 18 USC Sec. 656), it does not limit the total amount of time a defendant can be required to serve on supervised release as a result of violating conditions of release.  Beezer, Rymer, and Graber (author), Circuit Judges. S. McCrea of Eugene, OR, for the defendant-appellant;  AUSA K. Engdall of Eugene, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

43)  SENTENCING:  USA v. Syrax, 99-50753 (9th Cir. Dec. 13, 2000).  The district court did nor err in failing to group the defendant's fraud and money-laundering offenses under either Sentencing Guidelines Sec. 3D1.2(b) or (d);  it also did not err in imposing the role enhancement to the defendants money laundering count.  Tashima (author) and Tallman, Circuit Judges, and Alsup, District Judge.  AUSA E. Lindsay of Los Angeles, CA, for the plaintiff-appellee;   DFPD K. House of Los Angeles, CA, for the defendant-appellant.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

44)  SENTENCING:  USA v. Munoz, 99-50195 (9th Cir. Dec. 6, 2000).  In the lengthy trial of a major white collar criminal case with multiple defendant, the USCA found that the district court erred only in using the old preponderance of the evidence standard rather than the new clear and convincing evidence standard in determining the relevant conduct of two of the defendants where the resulting offense level was extremely disproportionate.  Boochever, Tashima, and Tallman (author), Circuit Judges.  M. Abzug of Los Angeles, CA, W. Kopeny of Irvine, CA, and T. Wolfsen of Orange, CA, for the defendants-appellants;  AUSA A. Mayorkas of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

45)  SENTENCING:  USA v. Rojas-Millan, 98-10518 (9th Cir. Dec. 8, 2000).  When determining whether a defendant in a criminal scheme is entitled to a mitigating role adjustment under Sentencing Guideline Sec. 3B1.2 as a minor participant, the district court should take into account all the relevant participants in the scheme, including those who are not brought to trial;  prosecutors need not identify, arrest, or try together all "partici-pants" in a scheme (and thus transform them into "defendants") in order for the district court to consider their conduct when evaluating a particular defendant's relative role;  Judge Graber concurred in the majority's opinion except with respect to one item:  she thought the district court had clearly exercised its discretion in refusing to depart downward on the basis of "aberrant behavior.".  Graber (dissenting in part), Fisher, and Berzon (author), Circuit Judges.  AFPD M. Powell of Reno, NV, for the defendant-appellant;  AUSA D. Bogden of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

46)  PRISONERS FILINGS:  USA v. Seesing, 98-30233 (9th Cir. Dec. 8, 2000).  The rule of liberal construction of pro se complaints and its application to 28 USC Sec. 2255 motions is for the benefit of a pro se prisoner and its rationale loses validity when it is invoked to the prisoner's disadvantage;  here, characterizing a prisoner's letter as a Sec. 2255 motion (and then denying it) was to his great disadvantage as it seriously diminished the possibility of his successfully filing a future, properly drafted and documented, motion.  Schroeder, Beezer, and Hawkins (author), Circuit Judges.  B. Norcross of Lincoln, MT, for the defendant-appellant;  AUSA C. Laws of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

47)  HABEAS CORPUS:  Whalem/Hunt v. Early, 99-55627 (9th Cir. Dec. 7, 2000).  Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), there may be an "impediment to filing an application," or grounds for equitable tolling, when the prison in which the federal habeas petitioner is incarcerated fails to provide legal materials on the AEDPA and its statute of limitations governing such petitions;  concurring, Judge Tashima, joined by Judges Trott and Berzon, noted that, while the panel was in agreement that this case should be reversed and remanded, the decision gives hardly a clue as to why:  Judge Tashima thought the case had to be reversed and remanded for appropriate development of the record as it is not possible to tell, on the existing record, precisely what the factual circumstances were regarding the petitioner's ability or inability to learn of the AEDPA's imposition of a one-year statute of limitations;  nor, was is it possible to determine the connection, if any, between the petitioner's late-filing of his petition and any legal research difficulties affecting him while in prison.  Pregerson, O'Scannlain, Trott (concurring), Fernandez, T.G. Nelson, Tashima (concurring), Wardlaw, W. Fletcher, Gould, Paez, and Berzon (concurring), Circuit Judges.  Per Curiam. FPD M. Knox of Los Angeles, CA, for the petitioner-appellant;  D. Chuang of Los Angeles, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 

48)  HABEAS CORPUS:  Anthony v. Cambra, 99-15458 (9th Cir. Dec. 15, 2000).  A district court may treat a habeas petition as an amendment that relates back to the date of an original petition that has been dismissed without prejudice, or an opportunity to resubmit it with only exhausted claims, for failure to exhaust claims alleged in the initial petition in state court;  dissenting in part, Judge Fernandez thought the majority's carving out of a "district-court-should-not-
have-dismissed-in-the-first-place" rule will breed noting but confusion; if the petitioner were not satisfied with the ruling, he should have appealed, but he did not.  Canby, Reinhardt (author), Fernandez (dissenting in part), Circuit Judges.  FPD D. Fermino of San Francisco, CA, for the petitioner-appellant;  S. Birenbaum of San Francisco, CA, for the respondent-appellee.  (Download the full text of this decision at www.ce9.uscourts.gov/) 

 1)  SECURITIES LAW:  Maxal Trust v. National Securities Corp., 99-55894 (9th Cir. Dec. 20, 2000) (unpublished). Browning, Pregerson, and Beezer, Circuit Judges.
          The District Court for the Central District of California, Judge Collins presiding, entered summary judgment for defendants National Securities Corporation ("National") and Louis Lichtenfeld.  The Maxal Trust, Bruce Sturman, Kenneth Chyten and Michael Muffoletto appealed, claiming that there were genuine issues of material fact with respect to Lichtenfeld's actual or ostensible authority, National's subsequent ratification of the agreement at issue, and Lichtenfeld's misrepresentation of his authority.
        The USCA affirmed.  First, the appellants maintained that a genuine issue of material fact existed as to whether Lichtenfeld had actual authority to bind National to the signed agreement.  "Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of care, allows the agent to believe himself to possess."  Cal. Civ. Code Sec. 2316.  However, the appellants failed to introduce any evidence that Lichtenfeld had actual authority to bind National to an irrevocable purchase of the appellants' share of Interact Medical Technologies stock.  Neither Lichtenfeld's admitted authority to sign the "First Letter," nor Lichtenfeld's status as a board member and a managing director of National were evidence of his actual authority to commit National to an irrevocable purchase.  The district court thus correctly concluded that there were no issues of material fact as to Lichtenfeld's actual authority.  Second, the appellants maintained that a genuine issue of material fact existed as to whether Lichtenfeld had ostensible authority to bind National.  "Ostensible authority is such as a principal, intentionally or by want or ordinary case, causes or allows a third person to believe the agent to possess."  Cal. Civ. Code Sec. 2317.  Such a belief must be reasonable.  However, there was no evidence showing that National's actions towards the appellants engendered a belief that Lichtenfeld was authorized to bind National to an irrevocable purchase.  Moreover, such a belief would not be reasonable given Otto's clear understanding that National absolutely could not absorb all of plaintiffs' stock.  The district court did not err by concluding that there is no genuine issue of material fact as to Lichtenfeld's ostensible authority.  Third, the appellants maintained that National ratified the agreement signed by Lichtenfeld.  "Subsequent ratification of an agent's act by a principal requires that the principal ratify with full knowledge and 'only in the manner that would have been necessary to confer an original authority for the act ratified.'"  Lindsay-Field v. Friendly, 36 Cal. App. 4th 1728, 1736 (1995) (quoting Cal. Civ. Code Sec. 2310).  However, the evidence shows that as soon as it became clear to National that it was bound to purchase the Interact shares, National contested the validity of the agreement.  The appellants have pointed to no evidence which indicates an intent by National to accept the agreement as signed by Lichtenfeld.  Thus, no genuine issue of material fact as to National's subsequent ratification exists and the district court did not err.  Fourth, the appellants maintained that the district court erred by granting summary judgment for Lichtenfeld on their claims for negligent misrepresentation and fraud.  In order to succeed in an action for negligent misrepresentation or fraud appellants' reliance on the misrepresentation must be justified.  In light of the fact that Otto knew National's intention was to broker a sale (with a possible purchase of $1 million) any reliance by the appellants that Lichtenfeld had the authority to bind National to an irrevocable purchase of all plaintiffs' shares was unjustified.  Moreover, there was no evidence that the appellants believed that Lichtenfeld's limited authority was expanded to include the authority to bind National to a purchase.  Under these circumstances, the district court properly concluded that there was no genuine issue of material fact concerning the appellants' claims for fraud and misrepresentation.  Finally, the district court did not abuse its discretion by denying the appellants leave to amend their complaint to include a claim for breach of warranty of authority because that claim would have been futile.

2)  BANKRUPTCY: In re Ahlstrom, 99-55619 (9th Cir. Dec. 26, 2000) (unpublished).  Rymer, T.G. Nelson, and Wardlaw, Circuit Judges.
        Affirming the judgment of the Bankruptcy Appellate Panel, the USCA found that the uncontroverted evidence shows that Ahlstrom knew (1) that selling the vehicles at issue out-of-trust violated a security agreement; (2) that, over a four-year period, he actively concealed from American Honda Finance Corporation ("AHFC") the fact that vehicles had been sold out-of-trust with the deliberate intent to prevent AHFC from demanding payment for the sold vehicles and to induce AHFC to continue making advances to Ahlstrom Motors;  and (3) that he knew that selling the vehicles out-of-trust would injure AHFC.  The evidence demonstrates that Ahlstrom acted willfully and maliciously in causing the injury to AHFC.  Moreover, Ahlstrom's contention that he may not have personally benefited and/or that the money may have been spend entirely on legitimate business expenses was insufficient to raise a question as to whether there was "just cause or excuse" for his wrongful acts.

3)  BANKRUPTCY / TAXATION: In re Smith, 99-17465 (9th Cir. Dec. 27, 2000) (unpublished).  Hug, Trott, and Wardlaw, Circuit Judges.
       The District Court for Hawaii, Judge Pence presiding, affirmed the bankruptcy court's order and judgment that Smith was liable to the IRS for income taxes that Smith closely held corporation ("RASCORP") should have paid.  The USCA affirmed for the reasons stated in the district court's order of October 27, 1999.  In particular, as the district court concluded, the USCA agreed, "the bankruptcy court did not err in finding that the debtor was the person responsible for collecting, truthfully accounting for, and paying over the trust fund taxes of RASCORP to the United States during the periods at issue;  that the debtor's failure to do so was willful; and that the debtor is liable for the penalty arising under 26 USC Sec. 6672 assessed against him for the years 1987 through 1990."

4)  BANKRUPTCY / TAXATION: In re Pick, 96-56777 (9th Cir. Dec. 20, 2000) (unpublished).  Trott, Graber, and McKeown, Circuit Judges.
         Pick appealed a judgment of the Bankruptcy Appellate Panel dismissing as moot a bankruptcy court's order allowing the sale of certain estate assets, FCC licenses, to Kay.  The USCA affirmed the bankruptcy court's order allowing the sale of the FCC licenses for the reasons stated in the BAP's memorandum of Nov. 7, 1996.  See Sulmeyer v. Karbach Enters (In re Ex-ennium, Inc.), 715 F.2d 1401 (9th Cir. 1983).  The USCA also granted Kay's motion to strike the Declaration of Steven Rein In Support of Appellant's Reply Brief.  Cf. Northwest Envtl. Defense Ctr. V. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) (considering appellate affidavits where submitted to establish jurisdiction and not to supplement record).  As to those portions of Pick's reply brief which argue matters outside his original brief, the USCA denied Kay's motion to submit supplemental briefing.

5)  BANKRUPTCY / ATTORNEYS' FEES:  In re The Wire Works, 99-55612 (9th Cir. Dec. 7, 2000) (unpublished).  Tashima and Tallman, Circuit Judges, and Alsup, District Judge
       This case, on appeal from a decision of the District Court for the Central District of California, Judge Tevrizian presiding, involved two issues:  first, whether the bankruptcy court property dismissed McMurray's counterclaim for breach of the implied covenant of good faith and fair dealing;  and, second, whether the bankruptcy court properly awarded Marathon National Bank ("MNB") attorneys' fees incurred in its adversary action against The Wire Works.  The bankruptcy court offered two independent justifications for its decision to dismiss McMurray's counterclaim.  First, it held that the two-year statute of limitation applicable to "various tortious conduct" barred McMurray's claim for breach of the implied covenant of good faith and fair dealing. The USCA disagreed.  Generally, a claim for breach of the implied covenant of good faith and fair dealing presents a contract claim subject to the four-year statute of limitation applicable to written contracts set forth in California Code of Civil Procedure Sec. 337(1).  Only if the implied covenant arises out of an insurance contract does California law recognize its breach as a tort.  McMurray alleged that on October 1, 1993, MNB breached the implied covenant of good faith and fair dealing arising out of a written guaranty.  McMurray filed his counterclaim on June 27, 1997, within the four-year statute of limitation applicable to claims on written contracts.  The statute of limitation thus did not bar McMurray's counterclaim.  The bankruptcy court properly decided, however, that McMurray's counterclaim failed on the merits.  As the bankruptcy court observed, "the hard line exercise of a bank's legal rights does not constitute a tortious breach of the covenant of good faith and fair dealing."  The district court affirmed, noting that the promissory notes and commercial guaranties themselves provide that McMurray's Manufacturing and McMurray promise to pay MNB "on demand".  In contrast to most promissory notes, guaranties are typically payable "on demand."  Performance of a guaranty is an "on demand" remedy for a default the creditor has already suffered at the hands of the principal debtor.  The California Supreme Court has clearly held that a party to a contract does not violate the implied covenant of good faith and fair dealing merely by exercising its rights and remedies under the contract.  That court was "aware of no reported case in which a court has held the covenant of good faith may be read to prohibit a party from doing that which is expressly permitted by an agreement.  On the contrary, as a general matter, implied terms should never be read to vary express terms. … 'As to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct.  And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.'"  Carma Developers, Inc. v. Marathon Dev. California, Inc., 826 P.2d 710, 728 (Cal. 1992) (quoting VTR, Inc. v. Goodyear Tire & Rubber Co., 303 F. Supp. 773, 777-78 (S.D.N.Y. 1968))  Even when the facts are construed in the light most favorable to McMurray, MNB did not breach its duty of good faith and fair dealing merely by demanding that McMurray perform his obligations under the guaranty.  The USCA thus held that McMurray's claim, though timely, was meritless.  It thus affirmed the district court.  As for the second issue, whether the bankruptcy court properly awarded MNB attorneys' fees incurred in its adversary action against The Wire Works, the USCA noted that it will not disturb a bankruptcy court's award of attorneys' fees unless the bankruptcy court abused its discretion or erroneously applied the law.  Here, the bankruptcy court properly determined that Sec. 506(b) does not preclude an award of attorneys' fees to MNB.  Section 506(b) permits an over-secured creditor with an allowed claim arising out of an agreement that provides for recovery of attorneys' fees to recoup those fees out of the surplus value of the property securing the claim.  11 USC Sec. 506(b)(2000).  MNB was an undersecured creditor in The Wire Works bankruptcy, however, not an oversecured creditor.  Section 506(b) applies only to over-secured creditors.  The bankruptcy court thus properly concluded that Sec. 506(b) does not preclude an award of attorneys' fees to MNB.  The bankruptcy court also did not err by holding that MNB was entitled to attorney's fees under California law.  "No general right to attorneys' fees exists under the Bankruptcy Code."  Ford v. Baroff (In re Baroff), 105 F.3d 439, 441 (9th Cir. 1997).  Where a bankruptcy court applies state law to resolve the central issue in an adversary action, however, the bankruptcy court must also apply state law to determine whether to award attorneys' fees to either party.  MNB initiated The Wire Works adversary action to preserve the collateral securing the indebtedness on the notes and the guaranties.  MNB's complaint set forth facts supporting its concern that McMurray was intermingling and fraudulently transferring assets by and among the entities controlled by him, including assets comprising MNB's collateral.  In the event McMurray had transferred any collateral assets to The Wire Works, MNB's complaint attempted to establish valid claims to those assets.  In other words, MNB commenced the adversary action to establish its entitlement to collateral assets in The Wire Works' possession and to collect the indebtedness on the notes and guaranties.  Under these circumstances, the bankruptcy court did not err in determining that California state law governed any award of attorneys' fees.  The bankruptcy court did not abuse its discretion by finding that MNB was the prevailing party in the adversary action.  Under California law, the "prevailing party" is "the party who recovered greater relief in the action on the contract."  Cal. Civ. Code Sec. 1717(b)(2)(2000).  MNB filed a proof of claim in the amount of $274,274.  The bankruptcy court entered judgment in MNB's favor in the amount of $223,758.  Because MNB recovered greater relief in the adversary action, the bankruptcy court did not abuse its discretion in determining that MNB was the prevailing party.  The USCA thus reverse the district court's ruling and remand with directions to reinstate the bankruptcy court's award of attorneys' fees and costs to MNB. 

6)  TRADEMARK INFRINGEMENT: Nissan Motor Company, Ltd. v. Nissan Computer Corporation., 00-55678 (9th Cir. Dec. 26, 2000) (unpublished).  D.W. Nelson, Brunetti, and Kozinski, Circuit Judges.
       The District Court for the Central District of California, Judge Pregerson presiding, had specific personal jurisdiction over Nissan Computer Corporation ("NCC") on the trademark infringement claim herein at issue.  Under the "effects test," it has jurisdiction over a defendant alleged to have committed an intentional act, expressly aimed at the forum state, and that caused harm, the brunt of which the defendant knew was likely to be suffered in the forum state.  NCC expressly aimed at the forum state where it is alleged to have targeted "a plaintiff whom the defendant knows to be a resident of the forum state."  Bancroft & Masters, Inc. v. Augusta National Inc., 223 F.3d 1082, 1087 (9th Cir. 2000).  Here, Nissan North America, a California resident, alleged that NCC intentionally infringed upon its trademark and that such harm was suffered primarily in its home forum.  NCC claims there was no evidence that it knew that Nissan North America was a California resident.  But NCC admits that it received a certified letter from Nissan North America, which contains its California address, several years before it began advertising auto products on its webpage.  And NCC does not purport to have relied on a belief that Nissan North America was a resident of a different forum.  The district court thus correctly concluded that NCC expressly aimed its allegedly infringing activities at California.  The district court did not abuse its discretion in issuing the preliminary injunction.  The plain-tiffs demonstrated a likelihood of success on their infringement claim for the reasons state by the district court.  NCC clearly altered its webpage so as to capitalize on the "initial interest confusion" of consumers who visited the webpage looking for plaintiff's products.  The district court narrowly tailored the injunction in order to reduce those visitors' confusion and to prevent NCC from diverting their initial interest to advertisers offering competing products. 

7)  COPYRIGHT INFRINGEMENT: Turner v. McMurtry, 00-55577 (9th Cir. Dec. 15, 2000) (unpublished).  Trott, Graber, and McKeown, Circuit Judges.
        The District Court for the Central District of California, Judge Moreno presiding, dismissed Turner's third amended complaint for failure to state a claim under Fed. Rule Civ. Proc. 12(b)(6) in Turner's action alleging copyright infringement and fraud.  The USCA affirmed.  The district court properly dismissed Turner's action alleging copyright infringement, contributory infringement, fraud, and civil conspiracy to commit fraud as Turner had failed to allege specific facts supporting the elements of these causes of action.  The district court did not abuse its discretion in setting aside for good cause the entry of default against the Academy of Television Arts and Sciences, sued as "The Emmy Awards."
 

8)  COPYRIGHT LAW: Infotext, Inc. v. Liberty Financial Credit, 98-55649 (9th Cir. Dec. 4, 2000) (unpublished). Canby, McKeown, and Paez, Circuit Judges.
       Infotext, Inc. appealed an award of $500 in statutory copyright damages following a default judgment in its favor.  The USCA vacated and remanded to the District Court for the Southern District of California, Judge Enright presiding, for a new determination of damages.  The district court erred in granting statutory damages because Infotext did not elect to receive statutory (rather than actual) damages.  The 1976 Copyright Act leaves it to the copyright owner—not the court—to elect whether to receive statutory in lieu of actual damages.  The district court also ruled that Infotext was not entitled to an award of actual damages.  This ruling, the USCA concluded, rested on several incorrect legal premises.  First, and most importantly, the district court's conclusion that Infotext's work was "fraudulent" is not relevant to a determination either of copyrightability under 17 USC Sec. 102 or to a calculation of actual copyright damages.  Second, the district court substituted its own subjective view of the value of Infotext's work for a determination of the actual market value.  The district court determined that Infotext's work was essentially worthless because it was both fraudulent and duplicative of material freely available from the Social Security Administration.  In calculating actual damages, the district court should have addressed the actual sales figures provided by Infotext, rather than relying on its own personal judgment regarding the merits of Infotext's work.  Finally, the district court erred in its determination that Infotext was not entitled to defendants' profits.  The Copyright Act directs that a plaintiff who has successfully established liability is entitled to "any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.  In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profits attributable to factors other than the copyrighted work."  17 USC Sec. 504(b).  Here, the district court determined that Infotext was not entitled to the defendants' profits because such an award would amount to "double recovery."  This conclusion was incorrect, however, because the district court had awarded no actual damages which an award of profits would duplicate.  Nor did the district court determine which, if any, profits of the infringer were "not taken into account in computing actual damages."  In evaluating the infringer's profits, the infringer—not the copyright owner—carries the burden of deducting costs from its gross revenues.  A corollary to this rule is that any doubt as to the correctness of the profit calculation should be resolved by the plaintiff.  Here, the district court incorrectly resolved all doubts in favor of the defendants.

9)  UNFAIR COMPETITION:   Munari v. Houdini, 00-15237 (9th Cir. Dec. 14, 2000) (unpublished).  Trott, Graber, and McKeown, Circuit Judges.
       The District Court for Nevada, Judge Rawlinson presiding, denied Houdini's motion to reconsider the summary judgment for plaintiffs in their unfair competition action under the Lanham Act, 15 USC Sec. 1125(a).  The USCA affirmed.  Because Houdini did not file his notice of appeal within 30 days of entry of the underlying judgment, the USCA lacked jurisdiction to address Houdini's contentions regarding the underlying judgment.  Accordingly, by order dated February 28, 2000, the USCA limited the scope of Houdini's appeal to the denial of his motion for reconsideration.  Because a review of the record provides no support for any of the grounds for relief enumerated under Fed. R. Civ. P. 60(b), the district court properly denied Houdini's motion for reconsideration.

10)  SHERMAN ACT:   Beverly v. Network Solutions, Inc., 99-15127 (9th Cir. Dec. 13, 2000) (unpublished).  Trott, Graber, and McKeown, Circuit Judges.
       The District Court for the Northern District of California, Judge Walker presiding, entered a summary judgment dismissal of Beverly's action against Network Solutions.  The USCA affirmed.  First, because Beverly failed to establish the existence of an agreement between the defendants or an injury to a relevant market, the district court properly granted summary judgment on his civil conspiracy claim under the Sherman Act.  Second, because Beverly failed to establish that the defendants knew of Beverly's contractual relationship with a third party or that the defendants intended to interfere with that contract, the district court properly granted summary judgment on Beverly's claims of intentional interference with contractual relations, and intentional interference with prospective economic relations.  Third, because Beverly's remaining contentions did not fall within any of the exceptions, the USCA decline to address them for the first time on appeal.  Finally, because Beverly failed to appeal the district court's denial of his transfer request, that issue was waived.

11)  DAMAGES / ENVIRONMENTAL LAW: Sea Hawk Seafoods v. Exxon, 99-35878 (9th Cir. Dec. 18, 2000) (unpublished).  Schroeder, Browning, and Kleinfeld, Circuit Judges.
         The District Court for Alaska, Judge Holland presiding, approved a plan of distribution which excluded Western Alaska Fisheries ("Western Alaska") from recovering a portion of a $5 billion punitive damage verdict against Exxon for the Valdez oil spill on the ground that it had failed to file an independent lawsuit against Exxon. 
         The USCA vacated and remanded.  Fed. R. Civ. P. 23(c)(1) authorizes district courts to alter or amend class certification orders only "before the decision on the merits."  The reference to "before" plainly implies disapproval of such alteration or amendment "afterward."  The mandatory punitive damages class, as defined in the class certification order and Plan of Allocation, consisted of all persons and entities that "possess" or "have asserted" a claim for punitive damages against Exxon arising from the spill.  Western Alaska plainly met the class definition.  The "timely lawsuit" requirement narrowed the mandatory class, excluding seafood processors that had relied on the plain language of the class certification order and notice.  Such notice expressly instructed that putative class members need not have brought a lawsuit in any court to be a member of the mandatory class and that they could not file an independent lawsuit once the class was certified.  The class definition was reaffirmed in the Plan of Allocation, which imposed a "timely lawsuit" requirement on only one of the 14 claim categories, the "Area Businesses" category.  At no point prior to the jury verdict was a "timely lawsuit" requirement imposed on seafood processors;  Rule 23(c)(1) prohibits imposition of one afterward.  As the order approving the seafood processor plan of distribution was entered on July 23, 1999, nearly five years after the jury returned its punitive damage verdict against Exxon and nearly three years after judgment was entered on the $5 billion award, addition of the "timely lawsuit" requirement was untimely and an abuse of discretion.  The USCA found no merit in the plaintiff's argument that punitive damages are unavailable, as a matter of law, to entities who have not asserted compensatory damage claims through an independent lawsuit.  Under federal law, including federal maritime law, punitive damages are available to any entity that suffered actual injury arising from a defendant's violation of a federally protected right, independent of whether legal injury is established at trial.  The "timely lawsuit" requirement in the seafood processor plan of distribution is vacated, with instructions to allow Western Alaska to share in the punitive damages recovery on the same basis as the other 33 eligible seafood processors.

12)  DAMAGES / ENVIRONMENTAL LAW: In re Exxon Valdez, 99-35864 (9th Cir. Dec. 14, 2000) (unpublished).  Schroeder, Browning, and Kleinfeld, Circuit Judges.
          The District Court for Alaska, Judge Holland presiding, approved a seafood processor plan of distribution, which excluded Cook Inlet Processors and Nautilus Marine Enterprises from recovering a portion of the $5 billion punitive damage verdict against Exxon for the Valdez oil spill.  The plan excluded the processors on the basis of settlement agreements they both signed, which contained full punitive damage releases.  The USCA affirmed.  Cook Inlet's settlement agreement released Exxon from "all punitive damage clams of any kind arising at any time."  Similarly, Nautilus Marine's settlement agreement released Exxon from "any and all claims for punitive damages in any way associated with [the Valdez spill]."  The district court did not abuse its discretion when it approved the plan which excluded the processors from punitive damage recovery based on the release language.  The processors' arguments for invalidating the releases on the ground of economic duress and waiver also failed.  The processors presented no evidence to support setting aside the releases on the basis of economic duress.  Exxon did not waive the releases by failing to plead them as affirmative defenses because the complaints did not request pu-nitive damages. 

13)  RICO: Weerasinha v. Fori Automation, Inc., 00-55758 (9th Cir. Dec. 22, 2000) (unpublished). Choy, Skopil, and Ferguson, Circuit Judges.
         The District Court for the Central District of California, Judge Taylor presiding, dismissed Weerasinha's action against Fori Automation, et al., for failure to state a claim upon which relief could be granted.  On appeal Weerasinha argued only that the district court erred by dismissing her claim based on the Racketeer Influence and Corrupt Organization Act.
       The USCA affirmed.  RICO prohibits persons involved in an enterprise to conduct the enterprise's affairs through a pattern of racketeering activity.  It defines an "enterprise" as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity."  18 USC Sec. 1961(4).  At a minimum, an enterprise must exhibit some sort of structure for making decisions and have an existence beyond that which is merely necessary to commit the alleged racketeering acts.  A structure requires a decision-making apparatus and system of authority guiding the enterprise's operations.  In Weerasinha's amended complaint, she conclusorily alleged that "the defendants engaged in a "pattern of racketeering activity" within the meaning of RICO.  She alleged that the defendants acted against her interests, conspired to reduce the value of her business, and provided untruthful documentation of transaction to support the decrease in value.  Nowhere in her amended complaint did she allege that the defendants belonged to a structure or organization beyond the crimes listed in this complaint.  She merely alleged that the defendants worked together to commit fraudulent acts.  Without a separate structure beyond those alleged racketeering activities, the group does not constitute an enterprise for purposes of RICO.  The USCA thus agreed with the district court that Weerasinha failed to allege the facts necessary to suggest the existence of an enterprise and failed to state a Sec. 1962(c) claim.

14)  RICO: Peia v. USA, 00-55108 (9th Cir. Dec. 15, 2000) (unpublished).  Trott, Graber, and McKeown, Circuit Judges.
 The District Court for the Central District of California, Judge Matz presiding, dismissed the defendants from Peia's civil action brought pursuant to the Racketeer Influenced and Corrupt Organizations Act.  Peia appealed.  The USCA affirmed.  Peia's contention that the district court erred by concluding that his federal tort claims were time-barred lacked merit as Peia failed to present these claims to the appropriate agency within two years of accrual.  Peia's contention that the nationwide service of process provisions of RICO provided the district court with personal jurisdiction over U.S. Trustee Coan lacked merit as Peia failed to allege facts sufficient to show that the court had personal jurisdiction over at least one of the participants in the alleged multi-district conspiracy and that there was no other district in which a court had personal jurisdiction over all of the alleged co-conspirators.  Peia's contentions that the district court erred by failing to find the United States to be a criminal enterprise, failing to enter default judgment, and failing to disqualify itself lacked merit.  Peia's contentions regarding continuing torts, misrepresentation of the record, the United State's duty to supervise, and alleged violations of federal law by federal employees also lacked merit.

15)  SEX DISCRIMINATION:  Christison v. Alvarez, 99-35181 (9th Cir. Dec. 6, 2000) (unpublished). Reavley, Fernandez, and Thomas (dissenting in part), Circuit Judges.
         The USCA affirmed the judgment of the District Court for Montana, Judge Lovell presiding.  First, Christison failed to complain within 45 days of the date his alleged sex discrimination occurred.  Although he may not have recognized the motivation for his harassment, a prudent person would have known that a claim existed.  Christison's initial consultation with the Equal Employment Opportunity Counselor on January 8, 1996 made it clear he knew, at the time of his retirement nine months earlier, (1) that his superior generally harassed the white males in the office beginning immediately upon her appointment and created a hostile work environment by continually using bad language, screaming at him, threatening him, and intimidating him;  (2) that his superior required him to spend 50% of his time performing secretarial-type tasks that were not his responsibility while allowing female employees to perform many of his responsibilities;  (3) that female employees had been promoted to positions they were not qualified for while he was suspended twice unfairly and given poor ratings without adequate explanation;  (4) that he was excluded from meetings concerning changes and procedures that affected him;  (5) that he had been intimidated into altering performance ratings against a male employee while female employees received high ratings;  (6) that female employees were allowed travel and training benefits denied to men;  (7) that demeaning and embarrassing comments about older males were made in front of younger female employees;  (8) that he was removed from the District Export Counsel as a member but sent to meetings as secretary to a younger, female employee who had replaced him, and was humiliated by his public removal from other organizations and projects he had been involved with; and, (9) that he was directed to take annual leave for signing in one minute late when he had worked 15 hours of unpaid overtime the week before.  The USCA found this information sufficient to put a prudent person on notice of a possible sex-discrimination claim.  Thus the limitations period began to run.  Second, Christison failed to pursue his sex-discrimination claim after acquiring this information.  Because of this, he cannot meet the due diligence standard required for equitable tolling of the limitations period.  Thus the limitations period cannot be tolled in his case.  Christison argues that he is entitled to equitable tolling of the limitations period because he did not actually recognize the discriminatory motive but believed the problem to be personal between him and his superior.  This amounts to an attempt to revisit the test for discovery of the claim but without the prudent person limb.  The USCA found no precedent for this major extension of the administrative "notice" requirement, and could see no justification for it.
 Dissenting in part, Judge Thomas thought the majority correctly distinguished between "cause accrual" and "equitable tolling," but that the district court had not.  Moreover, the dis-trict court misapplied the concept of equitable tolling by requiring evidence of misrepresentation or concealment.  Under Circuit law, it is not necessary to prove misrepresentation or concealment to establish equitable tolling.  Under Valenzuela v. Kraft, 801 F.2d 1170 (9th Cir. 1986), amended, 815 F.2d 570 (9th Cir. 1987), the purpose of the statute, the notice to the defendant, and diligence shown by the plaintiff determine the availability of tolling.  Misrepresentation and concealment may form the basis of a claim of equitable estoppel, but they are not elements of equitable tolling in the Circuit.  Judge Thomas thought the majority had applied the correct standard, but still concluded that there were no genuine issues of material facts as to equitable tolling.  Judge Thomas said he would reverse and remand for the district court to make this determination in the first instance under the correct standard.  On the record, he thought there appear to be genuine issues of material fact concerning tolling:  the plaintiff pursued remedies based on the knowledge available to him at the time;  the defendant was on notice of his complaints and the purpose of the statute would be served by allowing him to pursue his claims.  The information critical to his apprehension of the cause of action was not known to him until after his job ended;  once aware of it, he immediately pursued his available remedies.  In sum, the plaintiff should not be punished by his good faith belief that his job difficulties were due to factors unrelated to a discriminatory animus, when that motive was not revealed until after his opportunity to pursue it administratively had been foreclosed.

16)  EMPLOYMENT LAW: Schechter v. Trans World Air-lines, Inc., 99-55814 (9th Cir. Dec. 7, 2000) (unpublished). Pregerson, Silverman, and Tallman, Circuit Judges.
          After Trans World Airlines fired Schechter for violating security rules, Schechter filed suit alleging religious discrimination and retaliatory discharge under Title VII of the Civil Rights Act of 1964 and California's Fair Employment and Housing Act.  The District Court for the Southern District of California, Judge Gonzalez presiding, granted TWA's motion for summary judgment. 
         The USCA affirmed.  As a Customer Service Agent for TWA, Schechter violated TWA's security rules regarding the shipment of baggage.  After conducting an investigation and discharge hearing, TWA terminated her employment because her actions violated FAA and TWA regulations.  Schechter appealed the termination under her collective bargaining agreement to a TWA vice-president and then to a three-person arbi-tration panel without alleging discrimination or retaliation.  Her termination was upheld at all levels.  She then filed suit on October 23, 1997, alleging her current grounds for wrongful discharge.  Upon reviewing the district court's grant of summary judgment, the USCA found the issue to be whether Schechter established a "prima facie case of discrimination to create a genuine issue of material fact sufficient to foreclose summary judgment.  Schechter had the burden of producing enough evidence to permit a trier of fact to infer the specific fact at issue—that TWA unlawfully discriminated against her because of her religion.  The USCA agreed with the district court that Schechter failed to proffer sufficient evidence to establish a prima facie case of discrimination under the standard set forth by the Supreme Court and applied by the Ninth Circuit to survive summary judgment.  In order to establish a claim for retaliatory discharge Schechter had to demonstrate (1) that she engaged in a protected activity;  (2) that she suffered an adverse employment decision;  and (3) that there was a causal link between the protected activity and the adverse employment decision.  She admitted that she did not file a sexual harassment complaint or engage in any other protected activity under Ninth Circuit case law.  Nor did she offer evidence of a causal link between any mistaken belief of a protected activity and her termination.  The district court thus properly granted summary judgment in favor of TWA on her claim.

17)  EMPLOYMENT LAW: Chwen-Jye Ju v. Sharp Mi-croelectronics Technology, 00-35308 (9th Cir. Dec. 7, 2000) (unpublished).  Choy, Wallace, and Farris, Circuit Judges.
        The District Court for the Western District of Washington, Judge Burgess presiding, entered summary judgment for Sharp Microelectronics Technology ("SMT") in an action brought by Chwen-Jye Ju ("Ju") under the Civil Rights Act of 1991 and similar Washington state statutes.  Ju was employed by SMT as a senior engineer from 1987 until 1996, when he was fired after filing a Title VII complaint against SMT.  After being reinstated in 1997, Ju claims to have suffered numerous negative employment actions.  In February 1999, he filed the current retaliation claim.  One month later, upon merger with Sharp Electronics Corporation, SMT terminated Ju's employment.  On March 3, 2000, the district court granted summary judgment for SMT on the Title VII causes of action, and dismissed the state law claims without prejudice.
       The USCA affirmed.  First, to prove a prima facie case of retaliation, Ju had to demonstrate (1) that he engaged in a protected activity, (2) that he suffered an adverse employment decision, and (3) that there was a causal link between the protected activity and the adverse employment action.  Ju established the first element of the prima facie case for all his claims.  He filed a federal discrimination claim against SMT in 1995.  He also filed the current complaint against SMT a month before the company fired him.  However, Ju failed to meet the next two criteria for a prima facie case for all his claims except those for failing to promote and terminating his employment.  Second, some of the allegedly retaliatory actions do not rise to the level of adverse employment actions for Title VII purposes.  The Ninth Circuit has defined "adverse employment action" as comprising "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in a protected activity."  This definition includes actions materially affecting compensation, terms, conditions, or privileges of employment.  Ju's claims that SMT neglected his 10 year anniversary honors, disseminated a negative comment from a customer in a trip report, disturbed his son's chess preparation, and restricted his ability to communicate in writing to fellow employees without supervisor approval did not rise to the level of adverse employment actions under Title VII.  Moreover, although a negative performance appraisal and substandard pay raise can potentially deter employee protests, in Ju's case neither was below average nor resulted in any further punitive action.  These claims thus were not adverse employment actions under Title VII.  Third, Ju failed to offer any evidence of a causal link between his prior discrimination claim and the adverse employment action with regards to his claims that SMT denied him a performance review and pay raise, suspended him, put him on probation, and forced him to share his patent in retaliation.  Ju does not present any direct evidence that SMT made any retaliatory statement or even referred to the previous discrimination claim during any of its actions.  Moreover, except for his final termination after his complaint, all of SMT's actions occurred years after Ju filed his case for discrimination and even after SMT reinstated Ju's position with a 5% pay increase.  Fourth, Ju did present a prima facie case that he was not promoted for retaliatory reasons.  A refusal to promote is an adverse employment action, and Ju presented evidence of other employees being promoted despite lacking the experience requirement for the position.  Retaliatory motive can be proved through evidence that co-workers were treated more favorably.  However, SMT presented legitimate reasons why it relaxed the requirement for these individuals but not for Ju:  both candidates had the necessary patents, where Ju did not.  Moreover, SMT states that years of experience is a more flexible prerequisite than the patent requirement because experience is merely one measure of high technical achievement, and the other candidates possessed this technical competence.  Ju also lists employees who he claims were promoted even though, like himself, they lacked a patent award.  The employees he named, however, did not present a similar situation because one was promoted at a subsidiary company that did not emphasize patents, and the other was never actually promoted to the position.  Fifth, Ju presented a prima facie case that his 1999 job termination was retaliation.  The timing of the events (termination less than two months after complaint) gives rise to a presumption of retaliation.  But SMT claims that it terminated Ju because he was not qualified to design the new System On Chip ("SOC") products and business necessity required a reduction in force.  In total, SMT fired 72 employees in the months prior to the SMT merger.  Engineers in Ju's department who were transferred had more generally applicable skills or were transferred to entry level positions inappropriate for an engineer with Ju's qualifications.  Although Ju contests parts of this evaluation of his skills, he admits that he lacked at least some of the position-specific requirements.  Although the USCA said it should view the evidence in the light most favorable to Ju, there is also a concern about second-guessing business decision.  Reduction in force is a legitimate reason to terminate employment.  Moreover, there is no duty to transfer employees to another position once his or her original position is no longer needed.  Thus, given Ju's admission that he lacked many of the skills required for the SOC-focused positions, and given SMT's evidence of firing similarly qualified individuals, the USCA affirmed dismissal of this claims as well.  Sixth, Ju alleged that the combination of all of SMT's conduct produced a hostile work environment in violation of Title VII.  A hostile work environment may be the basis for a retaliation claim under Title VII" if conditions were "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.  SMT's allegedly discriminatory actions occurred infrequently over a two year period.  They were not physical in nature.  Ju presented no evidence that he was unable to perform his job satisfactorily, and in fact claims that he performed his job very well.  SMT's actions thus did not create a hostile work environment under Title VII.  Seventh, Ju claims that the district court erred in not allowing him to file his second amended pleadings that adds four additional parties related to SMT.  However, the USCA found that the district court did not abuse its discretion in not allowing the amended complaint.  Given that none of the facts underlying the claims were new, the added parties could not have saved the claim, and amendment would have been futile.  Moreover, Ju did not seek leave of the court to file the amended pleadings, as is required by Fed. R. Civ. Proc. 15(a).  Finally, a district court may elect, in its discretion, not to exercise supplemental jurisdiction over state claims once it has dismissed the original jurisdiction federal claims.  Because the district court correctly dismissed Ju's federal causes of action, it did not abuse its discretion in dismissing the remaining state law claims without prejudice.

18)  AMERICANS WITH DISABILITIES ACT:  Maggio v. Honda, 00-55656 (9th Cir. Dec. 15, 2000) (unpublished).  Trott, Graber, and McKeown, Circuit Judges.
         The District Court for the Central District of California, Judge Manella presiding, entered summary judgment for the defendants in Maggio's action under the Americans with Disabilities Act and California's Fair Employment and Housing Act.  The USCA affirmed.  Maggio argued that the factual evidence contradicts the district court's findings underlying its summary judgment for the defendants.  The USCA disagreed.  For an ADA or FEHA action to survive a summary judgment motion, the plaintiff must show that he is disabled within the meaning of the ADA.  But, based on its review of the record, the USCA concluded that Maggio failed to demonstrate a physical or mental impairment that substantially limits one or more of his major life activities.  Because Maggio failed to produce evidence sufficient to create a genuine issue of material fact that he is disabled within the meaning of the ADA, the USCA affirmed the district court's summary judgment for the defendants.  As the appeal was not frivolous, the defendants' request for attorneys' fees under Fed. R. App. P. 38 was denied.

19)  BASEBALL ARBITRATION: Garvey v. Major League Baseball Players Association, 00-56080 (9th Cir. Dec. 7, 2000) (unpublished).  Reinhardt and Hawkins, Circuit Judges, and Whyte (concurring), District Judge.
       In an earlier appeal, Garvey v. Roberts, 203 F.3d 580 (9th Cir. 2000), the USCA overturned an arbitration award denying Garvey's claims and held that the arbitrator's decision "could be explained only by his desire to dispense his own brand of industrial justice."  The USCA in that case established that the conclusion that Smith made Garvey an offer and subsequently withdrew it because of the collusion scheme was the only conclusion the arbitrator could draw from the record.  The District Court for the Central District of California, Judge Rea presiding, was bound to follow the USCA's mandate and the law of the case established in that decision.  Instead, it remanded Garvey's cases to the Arbitration Panel for de novo arbitration hearings.  Remand to an arbitrator was inappropriate, the USCA said, as such remand would be futile because the USCA could not accord judicial deference to any other conclusion by the arbitrator.  Nor was there any basis for the conducting a de novo proceeding.  There was no error regarding the admission, or failure to admit, evidence.  The only issue on appeal to the USCA was the propriety of the result reached by the arbitrator on a full and fair record.  The USCA concluded that the ruling against Garvey was in error.  That left only one possible result—an award in Garvey's favor.  The USCA noted that, while the blame may be its own, for failing to make its instructions clear, the district court nevertheless did not properly apply the USCA's mandate or the law of the case in remanding the case to the Arbitration Panel for de novo proceedings.  The USCA thus reversed the district court order and directed the district court to remand the cases to the Arbitration Panel with instructions to enter an award for Garvey in the amounts claimed by him before the panel.
         Concurring, Judge Whyte noted that he had dissented from that portion of Garvey v. Roberts that vacated the arbitration award.  He thus did not agree at that time that judgment should be entered in Garvey's favor.  He also thought that any remand should not have directed judgment in favor of Garvey.  But, he did agree that the majority in Garvey v. Roberts found that the arbitration award against Garvey was in error and intended that an award in Garvey's favor be entered.  Judge Whyte thus concurred that the cases should be remanded, in accordance with the Garvey v. Roberts decision, to the district court with instructions to enter judgment in favor of Garvey.