1)  INTELLECTUAL PROPERTY:  Gracie v. Gracie, 98-15672 (9th Cir. July 6, 2000).  Following the jury's finding that the defendant did not have a valid federal service mark for "Gracie Jiu-Jitsu", the district court erred in refusing to order cancellation of the defendant's registration of that mark.  Aldisert, O'Scannlain (author) and Hawkins, Circuit Judges.  A. Draper of San Francisco, CA, for the plaintiffs-appellants;  A. Head of San Francisco, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

2)   CONDEMNATION / ANTITRUST: Columbia River People's Utility District v. Portland General Electric Company, 99-35411 (9th Cir. July 17, 2000).  The condemnation of property by a governmental entity is not a business or commercial transaction under the Sherman Antitrust Act;  the plaintiff has no recourse under the federal antitrust statutes as this case is not about competition but about determining which party will be the state-approved monopolist for the Boise Cascade plant.  Lay (author), Tashima, and McKeown, Circuit Judges.  T. Balmer of Portland, OR, for the plaintiff-appellant;  B. Lyon of Portland, OR, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

3)  IDENTITY THEFT / FAIR CREDIT REPORTING ACT: Andrews v. TRW, Inc., 98-56624 (9th Cir. July 17, 2000).  It was for the jury to resolved whether a credit reporting agency had reason to believe that a person applying for credit was using another person's social security number;  it is quintessentially a job for a jury to decide whether identity theft has been common enough for it to be reasonable for a credit reporting agency to disclose credit information merely because a last name matches a social security number on file.  Canby, Noonan (author), and W. Fletcher, Circuit Judges.  C. Hall of Los Angeles, CA, for the plaintiff-appellant;  D. McLoon of Los Angeles, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

4)  COMMUNICATIONS LAW:  USA Dunifer, 99-15035 (9th Cir. July 20, 2000).  The jurisdictional restrictions imposed on the district court by the Communications Act of 1934 require that anyone seeking to broadcast first go through the Federal Communications Commission, or be subject to injunctive relief, even if the underlying regulatory (as distinct from statutory) scheme is claimed to be unconstitutional.  Tashima (author) and Graber, Circuit Judges, and Brewster, District Judge.  L. Hiken of San Francisco, CA, for the defendant-appellant;  J. Lewis of Washington, DC, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

5)  CONTRACTS / ARBITRATION:  Portland General Electric Company v. U.S. Bank Trust National Association, 99-35189 (9th Cir. July 17, 2000).  Oregon law, rather than the Federal Arbitration Act, governed review of a final appraisal decision issued pursuant to a commercial contract;  concurring Judge Tashima, joined by Judge Lay, wrote separately to express doubts as to whether Wasyl, Inc. v. First Boston Corp., 813 F.2d 1579 (9th Cir. 1987), by which the court in the instant case is bound, was correctly decided;  Judge McKeown joined Judge Tashima's concurrence as she too questioned the validity of Wasyl.  Lay, Tashima (concurring), and McKeown (author and concurring).  P. Douglas of New York, NY, for the appellant;  D. Markowitz of Portland, OR, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

6)  BANKRUPTCY / TAXATION:  In re American West Airlines, 98-16918 (9th Cir. July 11, 2000).  When a city fails to relinquish an avoidable tax lien, the federal statute, 11 USC Sec. 502(d), operates to disallow the claim.  Schroeder, Noonan, and Tashima (author), Circuit Judges.  K. Rider of El Paso, TX, for the appellant;  A. Jarvis of Salt Lake City, UT, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY:  In re Cervantes, 99-15441 (9th Cir. July 18, 2000).  An absent parent who owes money to the county for child support payments made by the country prior to the entry of a child support order cannot discharge that debt in Chapter 13 bankruptcy proceedings.  Politz, Reinhardt, and Hawkins (author), Circuit Judges.  P. Strauss of San Francisco, CA, for the appellant;  A. Lauderdale of Monterey, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

 8)  BANKRUPTCY:  In re Leibowitz, 99-55503 (9th Cir. July 6, 2000).  Under recent changes to the bankruptcy and welfare laws, an absent parent who owes money to the county for child support payments made by the county is not entitled to discharge any portion of that debt in a Chapter 7 bankruptcy, including any portion that may have accumulated prior to the entry of a court order;  the new discharge provisions apply to any bankruptcy filing under Title 11.  Politz, Reinhardt, and Hawkins (author), Circuit Judges.  L. Foltz of Oakland, CA, for the appellant;  P. Strauss of San Francisco, CA, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

9)  BANKRUPTCY:  In re DiSalvo, 98-56166 (9th Cir. July 14, 2000).  A Chapter 11 debtor who pursued his rights as debtor-in-possession in an adversary proceeding in bankruptcy court was barred by the doctrine of claim preclusion from advancing additional debtor-in-possession claims in the same forum. Pregerson and Wardlar, Circuit Judges, and Shadur (author), District Judge.  S. Kop of Los Angeles, CA, for Salvatore DiSalvo;  C. White of Glendale, CA for Jody DiSalvo.  (Download the full text at www.ce9.uscourts.gov/) 

10)  BANKRUPTCY:  In re Kaypro Corporation, 99-55206 (9th Cir. July 13, 2000).  The issue of whether payments under a debt restructuring agreement are made in the ordinary course of business is a question of fact that depends upon the parties' dealings and industry practice;  the evidence was sufficient to create genuine issues of material fact as to whether the challenged payments qualified under the ordinary course of business exception.  Reinhardt and Paez, Circuit Judges, and Dwyer (author), District Judges.  G. Scalabrini of Los Angeles, CA, for the appellant;  C. Stengel of San Diego, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY / SURCHARGES:  In re Compton Impressions, Ltd., 98-56701 (9th Cir. July 11, 2000).  Costs and expenses incurred by a debtor that do not quantifiably benefit the creditor or are incurred without the creditor's consent may not be surcharged against the creditor in Chapter 13 bankruptcy proceedings;  the creditor's cooperation with the debtor in its attempt to salvage some equity from the debtor's project did not constitute consent to the expenses the debtor sought to recover by its surcharge motion.  Hug and Thompson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  B. Davidoff of Los Angeles, CA, for the debtor'; S. Casselberry of Newport Beach, CA, for the creditors.  (Download the full text at www.ce9.uscourts.gov/) 

12)  BANKRUPTCY:  In re Omega Environmental, Inc., 98-35731 (9th Cir. July 19, 2000).  Where a bank issued an irrevocable standby letter of credit to the debtor, in exchange for a promissory note payable to the bank, which note was secured by a certificate of deposit (CD), the bank was entitled to relief from the automatic stay to permit it to enforce its right to payment of the CD against the debtor;  the bank had perfected its security interest in the CD, which is defined as an "instrument" under the Uniform Commercial Code, and a security interest in an instrument is perfected by possession.  Browning, B. Fletcher, and Gould, Circuit Judges.  Per Curiam. C. Allred of Seattle, WA, for the plaintiff-appellant;  B. Lynch of Seattle, WA, for the defendant appellee.  (Download the full text at www.ce9.uscourts.gov/) 

13)  BANKRUPTCY:  In re Pettit, 99-15413 (9th Cir. July 6, 2000).  Money held in the district court's registry pending judgment in an action against the debtors was not property of the bankruptcy estate subject to the automatic stay provisions where the entry of judgment against the debtors preceded their filing of a bankruptcy petition.  Schroeder Beezer, and Trott (author), Circuit Judges.  T. Bailey of Sacramento, CA, and P. Jackson of Vacaville, CA for the appellants;  S. Hirsch of San Francisco, CA, and J. Davis of San Francisco, CA, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

14)  BANKRUPTCY:  In re Greene, 98-16539 (9th Cir. July 12, 2000).  Fed. R. of Bankruptcy Proc. 9006(a), which extends an applicable period to include the next business day where the last day falls on a Saturday, Sunday, or legal holiday, does not apply to the 90-day period for avoidance of a preferential transfer under 11 USC Sec. 547(b)(4)(A);  dissenting, Judge Hawkins thought the majority ruling would make the job of bankruptcy trustees measurably more difficult and that some entirely meritorious claims against those who engage in fraudulent transfers would be lost as a result.  O'Scannlain (author), Hawkins (dissenting), and Wardlaw, Circuit Judges.  D. Winters of Santa Ana, CA, for the appellant;  F. Hjelmeset of San Francisco, CA, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

15)  BANKRUPTCY / ATTORNEYS' FEES:  In re Cedic Development Company, 99-15841 (9th Cir. July 26, 2000).  A bankruptcy court did not abuse its discretion by enhancing attorneys' fees that were below the lodestar;  not to allow the enhancement would be to pay below the lodestar.  Noonan (author), Thomas, and Berzon, Circuit Judges.  T. Littler of Phoenix, AZ, for the appellant;  C. Peterson of Phoenix, AZ, for the debtor-appellee. (Download the full text at www.ce9.uscourts.gov/) 

16)  BANKRUPTCY / MARITIME / CONTRACTS: Southwest Marine Inc. v. Danzig, 98-56724 (9th Cir. July 10, 2000).  In a dispute over a maritime contract for ship repairs, under government contract law post-confirmation debenture concessions for subcontractors of a bankrupt contractor fell within the Credits Provision Clause entitling the Navy to a refund of overpayments on the contract.  Fernandez and Wardlaw, Circuit Judges, and Weiner (author), District Judge.  P. Jones of San Diego, CA, for the appellant; G. Holm of Washington, DC, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 
 

17)  BANKRUPTCY / TAXATION / ERISA: In re McIntyre, 98-17192 (9th Cir. July 13, 2000).  The IRS may levy ERISA-regulated pension benefits to satisfy a husband's tax debt against the claim that the wife has a vested interest in half of those benefits under community property laws.  O'Scannlain (author), Leavy, and Rymer, Circuit Judges.  W. McIntyre pro se;  L. Argrett of Wash-ington, DC, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

18)  TAXATION:  Custom Chrome Inc. v. CIR, 98-71378 (9th Cir. July 10, 2000).  Warrants (effectively equivalent to stock options) issued as part of a loan transaction should be treated as an "original issue discount" and valued at the time they were granted under a well-established and reliable valuation method.  Tashima (author) and Graber, Circuit Judges, and Stotler, District Judge.  H. Kaplan of San Jose, CA, for the petitioner-appellant;  R. Farber of Washington, DC, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 

19)  TAXATION / PUNITIVE DAMAGES AWARDS: Benci-Woodward  v. CIR, 99-70136 (9th Cir. July 18, 2000).  Under California law, taxpayers may not exclude from gross income that portion of a punitive damages award retained by their attorneys pursuant to a contingent fee agreement.  Trott, Fernandez, and McKeown (author), Circuit Judges.  P. Panitz of Westlake Village, CA, for the petitioners;  T. McLaughlin of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

20)  TAXATION:  Jim Turin & Sons, Inc. v. CIR, 99-70130 (9th Cir. July 21, 2000).  Since emulsified asphalt cannot be stored as inventory, it is not "merchandise" in the sense that term is used in 26 CFR Sec. 1.471-1.  Lay, Tashima (author) and McKeown, Circuit Judges.  R. Hutter of Washington, DC, for the respondent-appellant;  J. Collins of Portland, OR, for the petitioner-appellee. (Download the full text at www.ce9.uscourts.gov/) 

21)  TAXATION:  Big Horn County Electric Cooperative v. Adams, 99-35799 (9th Cir. July 14, 2000).  An Indian tribe lacked regulatory jurisdiction to assess an ad valorem tax on the value of non-member "utility property" located on the equivalent of non-Indian fee land.  Hug, Goodwin, and Brunetti (author), Circuit Judges.  J. Fredericks of Billings, MT, for the defendants-appellants;  J. Torske of Hardin, MT, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

22)  TAXATION:  USA v. Andra, 99-30296 (9th Cir. July 27, 2000).  In calculating tax losses for sentencing purposes, the district court properly included the tax liabilities of individuals whom the defendant advised to illegally evade tax assessment and payment.  Reavley (author), O'Scannlain, and Gould, Circuit Judges.  AFPD J. Rhodes of Missoula, MT, for the defendant-appellant;  R. Lindsay of Washington, DC, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/)

23)  ENVIRONMENT LAW:  Exxon Mobil Corp. v. EPA, 99-70945 (9th Cir. July 7, 2000).  Nevada's implementation plan providing that gasoline sold in a carbon monoxide non-attainment area contain at least 3.5% oxygen did not conflict with and was not preempted by the Clean Ari Act.  Browning, B. Fletcher (author), and Alarcon, Circuit Judges.  C. Stewart of San Francisco, CA, for the petitioner;  E. McDonough of Washington, DC, for the respondents. (Download the full text at www.ce9.uscourts.gov/) 

24)  ENVIRONMENT LAW:  National Parks & Conservation Association v. U.S. Dept. of Transportation, 98-71268 (9th Cir. July 26, 2000).  An EIS was adequate in its treatment of the likely impact of a airport runway extension on the introduction of non-indigenous animals, insects and plants to the island of Maui, where the possible environmental damage was speculative;  dissenting, Judge Fletcher thought the FAA failed to take the requisite "hard look" at the likely impact of the extension on the introduction of alien species.  D.W. Nelson, Kozinski (author), and W. Fletcher (dissenting), Circuit Judges.  D. Sivas of Stanford, CA, for the petitioners;  M. Thurston of Washington, DC, for the respondents;  T. Keller of Honolulu, HI, for the intervenor.  (Download the full text at www.ce9.uscourts.gov/) 

25)  TORTS:  Kennedy v. Southern California Edison Co., 98-56157 (9th Cir. July 20, 2000).  A California jury instruction on causation mandated under Rutherford v. Owens-Illinois, 941 P.2d 1203 (Cal. 1997), in asbestos-related cancer cases applies also to a nuclear radiation-related wrongful death suits.  Boochever, Hawkins (author), and Thomas, Circuit Judges.  D. Howarth of Los Angeles, CA, for the plaintiff-appellants;  N. Isokawa of San Francisco, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

26)  INSURANCE / CONSTRUCTION DEFECT SUITS: Pershing Park Villas Homestead Assoc. v. United Pacific Ins. Co., 98-56261 (9th Cir. July 10, 2000).  The district court erred in awarding damages to homeowners as third party claimants for an insurer's bad faith failure to defend insured real estate developers in a construction-defect suit brought by a homeowners' association.  Boochever (author), Hawkins, and Thomas, Circuit Judges.  B. Levy of Encino, CA, for the defendants-appellants;  D. Riordan of San Francisco, CA, for the plaintiff-appellees. (Download the full text at www.ce9.uscourts.gov/) 

27)  INSURANCE:  Tento Intl. v. State Farm Fire & Casualty Co., 98-56862 (9th Cir. July 13, 2000).  It was a contractor's negligent failure to cover an opening it made in a roof—not the rain that fell into the building through that opening—that was the efficient proximate cause of damage to equipment inside the building.  Thompson (author), W. Fletcher, and Fisher, Circuit Judges.  K. Kammer of Encino, CA, for the plaintiff-appellant;  P. Dunn of Los Angeles, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

28)  INSURANCE:  Stuart v. UNUM Life Insurance Company of America, 97-55659 (9th Cir. July 10, 2000).  A district court erred in excluding as inadmissible hearsay a long-term group insurance policy offered as proof that the policy created an employee welfare benefit plan under ERISA and a legally operative document defining the rights and liabilities of the parties.  Brunetti (author), Wardlaw, and W. Fletcher, Circuit Judges.  L. Green of Los Angeles, CA, for the defendant-appellant;  N. Spirtos of Palm Desert, CA, for the plaintiffs-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

29)  INSURANCE / ATTORNEYS' FEES:  Bass v. First Pacific Networks, Inc., 97-15127 (9th Cir. July 14, 2000).  In an action in which the district court's jurisdiction is supplemental, federal law, rather than state law, governs the recoverability of attorneys' fees incurred in filing a motion under FRCP 65.1 to enforce a supersedes bond filed under FRCP 62(d).  Boochever, Brunetti, and Thomas (author), Circuit Judges.  N. Dillingham of San Francisco, CA, for the plaintiff-appellant;  L. Lossing of San Francisco, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

30)  INSURANCE:  Birth Hope Adoption Agency v. Arizona Health Care Cost Containment System, 99-16057 (9th Cir. July 12, 2000).  Arizona's ARS Sec. 8-548.07, which requires out-of-state persons who adopt children from Arizona to reimburse Arizona for the full cost of prenatal care and deliver of the adopted child when such costs have been paid by the Arizona Health Care Cost Con-tainment System, violates the commerce clause.  Leavy (author), T.G. Nelson, and Hawkins, Circuit Judges.  S. Lubliner of San Francisco, CA, for the plaintiff-appellant;  L. Johnston of Phoenix, AZ, for the defendants. (Download the full text at www.ce9.uscourts.gov/)

31)  TORTS / PROPERTY LAW:  Pacheco v. USA, 99-15421 (9th Cir. July 31, 2000).  A landowner who hands out beach toys that invite children to play in the surf has a duty to warn visitors of the dangers of strong surf, riptides and undercurrents which are known to the landowner;  dissenting, Judge Graber thought the state-law question whether the defendants had a duty to warn of the conditions in the ocean off their land is controlled by the California Court of Appeal decision in Swann v. Olivier, 28 Cal. Rptr. 2d 23 (Ct. App. 1994), which held that a beach-front landowner "has no duty to warn of dangers beyond his or her own property when the owner did not create those dangers.".  Wood (author), Kleinfeld, and Graber (dissenting), Circuit Judges.  J. Stein of San Jose, CA, for the plaintiffs-appellants;  J. Dahlberg of San Francisco, CA, for the defendants-appellees P. Kaleth and Parks Management Company;  R. Mueller of San Jose, CA, for the USA.  (Download the full text at www.ce9.uscourts.gov/) 

32)  LABOR LAW:  Eisinger v. Federal Labor Relations Authority, 98-70866 (9th Cir. July 17, 2000).  Federal Labor Relations Authority regulation 5 CFR Sec. 2422.2, which denies individuals standing to petition for clarification or amendment of unit determinations, is invalid as it directly contravenes the plain language of 5 USC Secs. 7103 and 7111.  Hug, D.W. Nelson (author), and McKeown, Circuit Judges.  L. Sattler of Menlo Park, CA, for the petitioner;  J. Blandford of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

33)  LABOR LAW / CONFIDENTIALITY AGREEMENTS:  Union Pacific Railroad Company v. Mower, 98-36140 (9th Cir. July 19, 2000).  Under Oregon law a former employee has an implied duty of confidentiality but the parties can "contract out" of that duty;  here, the implied duty was supplanted by the unambiguous terms of the employee's resignation agreement which limited the em-ployee's implied duty of confidentiality to a distinct period of time that ended December 31, 1995;  after that date, the former em-ployee's obligation to conduct his affairs in accordance with the agreement terminated and he was no longer subject to its nondisclo-sure requirements.  Noonan, Graber, and Fisher (author), Circuit Judges.  P. Bovarnick of Portland, OR, for the defendant-appellant;  T. Jayne of Portland, OR, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

34)  OVERTIME COMPENSATION:  Firestone v. Southern California Gas Company, 98-56468 (9th Cir. July 19, 2000).  Where a dispute as to whether employees are paid a "premium wage rate" under a formula used to calculate overtime pay required interpretation of the complex pay and overtime pay provisions in the collective bargaining agreement, the employees' state law claim was preempted by Sec. 301 of the Labor Management Relations Act.  Schroeder (author), Beezer, and Graber, Circuit Judges.  R. Cantore of Los Angeles, CA, for the plaintiffs-appellants;  D. Reeves of Los Angeles, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

35)  ERISA:  Wetzel v. Lou Ehlers Cadillac Group Long Term Disability Insurance Program, 97-56437 (9th Cir. July 26, 2000).  California's four year statute of limitations for lawsuits based on written contracts, Cal. C. Civ. Proc. Sec. 337, provides the applicable statute of limitations for ERISA actions based on benefit claims under a written policy in California;  the claimant's cause of action accrues either when benefits are actually denied or when the claimant has reason to know that they are denied;  concurring, Judge Fletcher, joined by Judges Hug and Tashima, thought the majority should have looked to California Insurance Code Sec. 10350.11, which sets the limitations period as three years, and that it should have looked to California Insurance Code Sec. 10350.7, which provides that the cause of action accrues and the limitations period begins to run 90 days after the claimant is required to submit written proof of loss to the insurer.  Hug, Browning, O'Scannlain, Trott, Rymer, T.G. Nelson (author), Tashima, Thomas, Silverman, McKeown, and W. Fletcher (concurring), Circuit Judges.  R. Dean of Pacific Palisades, CA, for the plaintiff;  D. Lingenbrink of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

36)  EMPLOYMENT DISCRIMINATION:  Ray v. Henderson, 99-15289 (9th Cir. July 7, 2000).  An employee who was subjected to adverse treatment after complaining of the harassment of women at his workplace, suffered an adverse employment action reasonably likely to deter employees from engaging in protected activity;  the employee stated a cognizable claim for retaliation based on his supervisor's creation of a hostile work environment in retaliation for the employee's complaints by eliminating employee meetings, eliminating the company's flexible starting time policy, instituting a "lockdown" of the workplace, and cutting the employee's salary.  B. Fletcher (author), Alarcon, and Hawkins, Circuit Judges.  E. Rapoport of San Francisco, CA, for the plaintiff-appellant;  AUSA D. Luther of Sacramento, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

37)  HOSTILE WORK ENVIRONMENT:  Fielder v. UAL Corporation, 98-35511 (9th Cir. July 10, 2000).  Conduct by non-supervisory or non-managerial fellow workers may constitute actionable retaliation by the employer;  dissenting, Judge Kleinfeld believes that the practical consequence of the majority's opinion is to keep alive incidents of claimed sexual harassment permanently, with no statute of limitations at all;  concurring, Judge Fletcher wrote separate to give reasons, in addition to those given in the majority's opinion, for the conclusion that plaintiffs' complaint was timely filed. .  Aldisert (author), Kleinfeld (dissenting), and W. Fletcher (concurring), Circuit Judges.  T. Guyer of Medford, OR, for the plaintiff-appellant;  R. Bluth of Medford, OR, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

38)  HOSTILE WORK ENVIRONMENT:  Kortan v. California Youth Authority, 98-56047 (9th Cir. July 7, 2000).  The plaintiff's negative employment evaluation following her filing of a complain against her supervisor, but unaccompanied by any other adverse impact, was insufficient to allow her retaliation claim to go forward;  dissenting in part, Judge Fisher disagreed with the majority's conclusion that the plaintiff failed to raise genuine issues of material fact regarding her retaliation and hostile working environment claims, as the supervisor did more than just demean the plaintiff with words:  he used his superior position to punish the plaintiff with a dramatically lowered and undeserved performance evaluation that even the supervisor's own supervisor recognized as retaliation for the plaintiff's complaint.  Rymer (author), and Fisher (dissenting in part), Circuit Judges, and George, District Judges.  P. Dion-Kindem of Los Angeles, CA, for the plaintiff-appellant;  D. Tiede of San Diego, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

39)  AMERICANS WITH DISABILITIES ACT: Braunling v. Countrywide Home Loans Inc., 98-56929 (9th Cir. July 21, 2000).  A disabled plaintiff failed to show that her employer refused to reasonably accommodate her disability where she could not show that she would have been able to perform the essential elements of her job even with the requested accommodation.  Browning, Hall (author), and Silverman, Circuit Judges.  B. Rolfe of Camarillo, CA, for the plaintiff-appellant;  T. Cahill of Los Angeles, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

40)  AMERICANS WITH DISABILITIES ACT:  Deppe v. United Airlines, 98-17382 (9th Cir. July 11, 2000).  The district court erred in granting summary jugment to an employer in a wrongful termination claim under the Americans with Disabilities Act, where a genuine issue of material fact existed as to whether the employee was disabled within the meaning of the ADA at the time his employment was terminated.  Politz (author), Reinhardt, and Hawkins, Circuit Judges.  R. Rogers of San Francisco, CA, for the plaintiff-appellant;  W. Dritsas of San Francisco, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

41)  RULE 60(b)(1) / EXCUSABLE NEGLECT: Bateman v. U.S. Postal Service, 99-15394 (9th Cir. July 26, 2000).  An attorney's failure to comply with a filing deadline because he was out of the country constitutes "excusable neglect" under FRCP 60(b)(1) where prejudice to the opposing party is minimal, the length of delay is minimal, and there exists no evidence that the attorney acted in bad faith;  dissenting, Judge Alarcon thought the majority had implicitly adopted a novel standard for reviewing a district court's exercise of its discretion, namely, where the district court fails to make findings of material facts because it has not applied the correct legal standard, an appellate court may make its own findings, and direct the district court to vacate its judgment without conducting an evi-dentiary hearing as required by the law of this Circuit.  B. Fletcher, Alarcon (dissenting), and Hawkins (author), Circuit Judges.  K. Emeziem of Oakland, CA, for the plaintiff-appellant;  A. Graham of New York, NY, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/)