2)  SECURITIES:  Alton v. Securities & Exchange Commission, 99-70383 (9th Cir. July 14, 2000) (unpublished).  Schroeder, Hawkins, and Fisher, Circuit Judges.
           Alton petitioned for review of an SEC order upholding a disciplinary action taken against him and his firm by the National Association of Securities Dealers (NASD).  The SEC found that Alton failed to comply with NASD rules regarding (a) minimum net capital requirements and reporting requirements relating thereto; (b) restrictions on sales of "hot issue" securities to certain organizations;  (c) limitations on the types of firm activities that may be conducted by persons who are not properly registered with the NASD; and, (d), proper continuing education and supervisory procedures.
          The USCA denied Alton's petition.  It first noted that it has the impression that Alton blames others for his own failures and misunderstands the gravamen of the SEC's order—namely, that each violation charged against him illustrates his disregard for NASD rules and that close adherence to the procedures, as well as the substance they address, protects investors.  The USCA found that each of the SEC's findings regarding Alton's conduct was supported by substantial evidence.  That evidence included but was not limited to the following:  First, by the time a bank account was opened on November 7,1995 and Alexander Lushtak deposited $100,100 on De-cember 29, 1996, he had repudiated any agreement he may have had with Alton.  Thus, Lushtak, who had no affiliation with Alton's firm, was an improper signatory on the firm's account.  Lushtak was not involved with the firm's operations, was expected to deposit his own funds into the account and was legally entitled to withdraw those funds for purposes unrelated to firm business.  The SEC did not err in concluding that inclusion of balances from such an account in a firm's net capital calculation was not permitted and that considering the $100,100 deposit as part of the firm's net capital for purposes of its periodic reports was erroneous, regardless of the amount of time the deposit was to remain in the account.  Second, it was undisputed that Alton was not able to provide the NASD examiners with verification information for any of the listed organizations during the NASD investigations and that some of those organizations were subject to verification requirements.  Third, the USC agreed with the SEC that whether Alton knew or consented to the manner in which one James Fuller signed documents was much less important than the fact that Fuller was signing a power of attorney and other important documents on behalf of the firm because completing and executing documents obligating the firm to participate in a securities underwriting are clearly among those duties to be performed by a principal.  Moreover, review of trade tickets is a task that must be performed by a principal.  Alton's own testimony before the NASD illustrated a clear violation of this rule.  Finally, the USCA noted that it would not alter sanctions imposed by the SEC unless they are either unwarranted in law or without justification in fact.  But Alton failed to meet his burden of proof on the issue of his sanctions, as the relation of remedy to policy is peculiarly a matter for administrative competence.

3)  SECURITIES:  Scheufler v. CFTC, 98-70403 (9th Cir. July 27, 2000) (unpublished).  Canby, Reinhardt, and Fernandez, Circuit Judges.
           Scheufler petitioned for review of the decision of the Commodities Futures Trading Commission (CFTC) that futures commission merchant, Gerald, Inc., was not derivatively liable for violations of the Commodity Exchange Act by an introducing broker, Trinity Financial, Inc. 
            The USCA denied the petition.  First, it determined that that the CFTC's decisions that Trinity was not acting as an agent of Gerald and that Trinity's wrongdoing was not aided and abetted by Gerald were supported by the weight of the evidence.  Second, the denial of Scheufler's late and not well supported motion for leave to amend was not an abuse of discretion.  Third, Scheufler raised a number of other issues, but none of them entitled her to relief.  The USCA noted that it could not examine new evidence on appeal, that it could not assess damages against the CFTC, and that the CFTC does not have the authority to award punitive damages.  Finally, the record did not bespeak reversible bias, or, for that matter, any bias at all.

4)  STOCK OPTIONS:  Holm v. CalEnergy Company, 98-16920 (9th Cir. July 14, 2000) (unpublished).  Hug and Wardlaw, Circuit Judges, and Moskowitz.
            The District Court for the Northern District of California, Judge Breyer presiding, entered a summary judgment denying Holm's claims for breach of contract as barred by the statute of limitations.
           The USCA reversed.  Pursuant to a Non-Qualified Stock Option Agreement, CalEnergy granted Holm a non-qualified option to purchase a number of shares of CalEnergy's common stock.  The number of shares covered by the option would increase according to a vesting schedule in the contract until February 28, 1993 or until Holm's "Termination Date," which occurred first.  Holm was entitled to exercise the option with respect to covered shares of stock, "in whole or in part," at any time prior to March 24, 1998.  The district court did not reach the merits of the contract claim, but instead held that the claim was barred by California's four-year statute of limitations.  Because the district court did not reach the issue of whether Holm's emploment was terminated, the USCA assumed that Holm's employment with CalEnergy did not terminate in March 1991, and thus that the number of shares covered by the option contract continued to increase until February 28, 1993.  The contract obligated CalEnergy to sell Holm the shares covered by the option (as determined by the vesting schedule) when Holm tendered the option price for those shares.  On March 7, 1991, CalEnergy sent Holm a letter indicating that it would consider the number of shares covered by the option to stop increasing on March 31, 1991, despite the contractual provision stating that the shares covered by the option would increase until February 28, 1993.  This letter, however, was not a breach of the contract, as the district court held, but was instead an anticipatory repudiation.  At the time of the March 7, 1991 letter, CalEnergy's obligation to sell Holm the shares covered by the option after March 31, 1991 had not yet arisen.  Under the contract, that obligation did not arise until Holm actually tendered the option price;  therefore, CalEnergy could not have actually breached the option contract until that time.  Because CalEnergy's time for performance had not yet arisen, its March 7, 1991 letter was an anticipatory repudiation of a future obligation.  When one party to a contract has committed an anticipatory repudiation, the injured party may choose to sue immediately upon the repudiation, or may wait to sue when the contract is actually breached, if it is breached.  Holm chose to wait.  On October 14, 1996, Holm attempted to exercise his option to purchase the shares that were to have vested after March 31, 1991.  CalEnergy's obligation to sell Holm those shares thus arose on October 14, 1996.  When CalEnergy refused to sell Holm the shares, the statute of limitations on Holm's claim for those shares commenced.  Holm filed this action on February 5, 1997, well within the four-year limitations period.  His action was thus timely.

5)  TAXATION:  Buhtz v. Rossler, 98-55901 (9th Cir. July 5, 2000) (unpublished).  Trott, Fernandez, and McKeown, Circuit Judges.
            The District Court for the Central District of California, Judge Rea presiding, entered summary judgment in favor of Lockheed Federal Credit Union, its employee, Rossler, the United States, and certain IRS agents.
            The USCA affirmed.  First, the district court properly granted summary judgment in favor of the IRS agents.  They committed no constitutional violations when they levied on the credit union account.  Second, the credit union and its officer, Rossler, were both immune from liability for their actions in acceding to the IRS levy.  Third, Buhtz could not sue the United States in a quiet title action on his claim that, as a third party, he had an interest in the credit union account.  His claim, if any, would be for wrongful levy or a refund.  Fourth, Buhtz also asserted that the levy was wrongful because he was not given prior notice and because his interest in the credit union fund was taken to satisfy the tax liability of another taxpayer, his wife, Mrs. Buhtz.  However, the account was joint and each party to it had the unrestricted right to withdraw funds.  Thus, notice to the delinquent taxpayer, Mrs. Buhtz, was sufficient.  Finally, under California law the funds were presumably community property.  Mr. Buhtz did not submit evidence to overcome that presumption.  Thus, with exceptions not relevant here, he had the absolute power of disposition.  The whole community was liable for the debts.  Thus, on the record, Mr. Buhtz cannot complain about the levy.

6)  BANKRUPTCY / TAXATION:  In re Wilks, 99-55993 (9th Cir. July 28, 2000) (unpublished).  Kozinski, T.G. Nelson, and Silverman, Circuit Judges.
            The Wilks, Chapter 7 debtors, appealed pro se the Bankruptcy Appellate Panel's affirmance of the bankruptcy court's dismissal of their adversary proceeding against the IRS and California Franchise Tax Board seeking a determination of the dischargeability of their taxes, the validity of various tax liens, and a refund of excess payments.  The USCA affirmed, finding that the bankruptcy court properly dismissed the action against the FTB for lack of jurisdiction because the FTB is entitled to sovereign immunity under the Eleventh Amendment.  In addition, the bankruptcy court did not abuse its discretion by dismissing the adversary action against the IRS based on the lack of prosecution by the Wilks.

7)  BANKRUPTCY / PATENTS:  In re Constant, 99-55093 (9th Cir. July 6, 2000) (unpublished).  Trott, Fernandez, and McKeown, Circuit Judges.
            Argerey Constant, who purports to have a lien on certain patents owned by the debtor, her husband James Constant, appealed an order of the District Court for the Central District of California, Judge Real presiding, which authorized Advanced Micro-Devices, Inc. (AMD) to execute on the patents.
            The USCA affirmed.  AMD holds a judgment and proceeded to execute upon patents and copyrights in James Constant's name.  In so doing, it relied upon FRCP 69(a), which directs that the procedure shall be in accordance with the practice and procedure of California.  That, in turn meant that upon notice from AMD, Argerey had to file a third party claim under oath, if she asserted that she had a lien.  She did not do so with 30 days, and the effect was that the lien, if she had one, was deemed waived as to AMD.  Moreover, there was no authority for the proposition that patents cannot be executed upon in the normal way, and the USCA perceived no conflict between the execution procedures and the patent scheme created by Congress.  The mere existence of a recording law did not suggest a contrary conclusion.  The Constants have filed many cases over these patents and most have been meritless.  All com-menced in the District Court for the Central District of California.  Some of them ended in the Federal Circuit and some ended in the Court of Appeals for the Ninth Circuit.  Most of them ended with the imposition of sanctions upon one or both of the Constants.  AMD asked for sanctions in the instant case as well.  However, the USCA declined to do so.  It also declined to impose a pre-filing order at the appellate level.

8)  BANKRUPTCY / RECUSAL:  In re Jones, 99-56091 (9th Cir. July 28, 2000) (unpublished).  Kozinski, T.G. Nelson, and Silverman, Circuit Judges.
            Jones filed an action in bankruptcy court claiming violations of her civil rights and of the automatic stay.  After the bankruptcy judge dismissed her complaint against several defendants, she filed an affidavit seeking the judge's recusal on the grounds that:  1) the courtroom deputy had an ex parte discussion with a defendant about the calendar;  2) the judge failed to give Jones notice before making a factual finding;  3) the judge questioned Jones about proof of service;  4) an address provided in Jones's petition was crossed-out while in the bankruptcy court's possession;  5) Jones's case threatened the judge's decision in Marquand v. Smith, 105 BR 50 (Bankr. C.D. Cal. 1989);  and 6) there was a general appearance of prejudice and bias against Jones.  The bankruptcy judge denied the request.  The Bankruptcy Appellate Panel affirmed and denied Jones's subsequent motion for reconsideration.  The USCA affirmed.  Jones failed to show that a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.  Denial of the recusal request was not an abuse of discretion.  Because Jones did not show that there were applicable ground for relief form the judgment, the USCA held that the BAP did not abuse its discretion by denying the motion for reconsideration.

9)  BANKRUPTCY / ATTORNEYS' FEES:  In re Fuchs, 98-35901 (9th Cir. July 11, 2000) (unpublished). Ferguson, Rymer, and Hawkins, Circuit Judges.
           The District Court for the Eastern District of Washington, Judge Whaley presiding, dismissed, for failure to prosecute, Fuchs' appeal from a bankruptcy court's order awarding fees to an attorney for legal services he provided to Fuchs prior to Fuchs Chapter 12 bankruptcy proceedings.  The USCA affirmed.  The record indicated that Fuchs failed to file:  (1) a designation of the bankruptcy rec-ord within ten days of his appeal to the district court as required under Bankruptcy Rule 8006;  (2) the designation of record even after having received a generous extension of time to file it; and (3) a timely response to Dexter's motion to dismiss the appeal.  The district court thus did not abuse its discretion in dismissing the appeal.

10)  BANKRUPTCY / ATTORNEYS' FEES:  In re Uribe, Inc., 98-36021 (9th Cir. July 24, 2000) (unpublished).  Reavley, Hall, and O'Scannlain, Circuit Judges.
           The District Court for the Eastern District of Washington, Judge Van Sickle presiding, entered judgment for Uribe, Inc.  Northwest Pipeline appealed, arguing that the bankruptcy court erred in awarding Uribe attorney and expert witness fees under the attorneys' fees provisions of Washington's lien enforcement and consumer protection law.  Northwest alternately argued that the bankruptcy court miscalculated Uribe's attorney and expert witness fees.  Northwest maintained that Uribe's lien was invalid because Uribe waived its lien rights in their contract.  However, Northwest stipulated in the trial court that the contract's lien waiver was unenforceable.  Northwest did not otherwise contest the validity of Uribe's lien on appeal.  The USCA thus upheld the bankruptcy court's determination that Uribe's lien was enforceable and that Uribe was entitled to attorneys fees.  The USCA also found no error in the bankruptcy court's calculation of the attorney fees award.  But, the USCA agreed with Northwest that RCW 60.04.181(3) did not permit an award of expert witness fees in this case.  RCW 60.04.181(3) authorizes a court to award a prevailing party "necessary expenses incurred by the attorney."  As the statute does not define "expense," the USCA gave the term its ordinary meaning.  Although Uribe's attorney may have incurred a debt, it was not a necessary expense of the attorney in the professional service to the client.

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