2)  COMMUNICATIONS LAW / INTERNET:  AT&T v. City of Portland, 99-35609 (9th Cir. June 22, 2000).  The Communications Act bars a local cable franchising authority from conditioning a transfer of a cable franchise upon the cable operator's grant of unrestricted access to its cable broadband transmission facilities for Internet service providers other than the operator's proprietary service.  Leavy, Fernandez, and Thomas (author), Circuit Judges.  D. Carpenter of Chicago, IL, for the plaintiffs-appellants;  T. Thatcher of Portland, OR, for the defendants-appellees;  W. Lake of Washington, DC, for the intervenors-appellees. (Download the full text at www.ce9.uscourts.gov/) 

3)  TAXATION:  Coady v. CIR, 98-71358 (9th Cir. June 14, 2000).  Following the First and Federal Circuits, the USCA held that a taxpayer could not avoid tax on income in the form of a recovery for employment back pay and benefits by diverting that income to creditors, including counsel for a contingency fee.  Leavy, Rymer (author), and T.G. Nelson, Circuit Judges.  L. Hulbert of Bothell, WA, for the petitioners;  D. Carmack of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

4)  SECURITIES / CIVIL RICO:  Scott v. Boos, 98-15877 (9th Cir. June 8, 2000).  Section 107 of the Private Securities Litigation Reform Act bars civil RICO claims filed after the Act's effective date based on conduct occurring prior to its effective date.  Politz, Reinhardt, and Hawkins (author), Circuit Judges.  B. Clark of Las Vegas, NV, for the plaintiff;  B. Boos in pro per. (Download the full text at www.ce9.uscourts.gov/)

5)  FALSE LOAN DOCUMENTS:  USA v. Hicks, 99-10352 (9th Cir. June 12, 2000).  Creating false tax returns to support a loan application is sufficient evidence to support a conviction for making false statements to a federally insured financial institution in violation of 18 USC Sec. 1014.  Wood, Kleinfeld, and Graber (author), Circuit Judges.  D. Weinberg of San Francisco, CA, for the defendant-appellant;  AUSA J. Hemann of San Francisco, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

6)  ENVIRONMENTAL LAW:  California v. USA, 99-15388 (9th Cir. June 14, 2000).  The federal removal statute, 28 USC Sec. 1442(a)(1), does not apply to actions filed by state and local governments in nonfederal fora pursuant to state and local air quality laws.  B. Fletcher, Alarcon (author), and Hawkins, Circuit Judges.  K. Trost of Sacramento, CA, for the plaintiff;  K. Kovacs of Washington, DC, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

7)  ENVIRONMENTAL LAW:  Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 99-15641 (9th Cir. June 15, 2000).  A temporary planning moratorium en-acted by TRPA to halt development while a new regional land-use plan could be devised, did not effect a categorical taking of the plaintiffs' property as it did not deprive them of "all the value or use" of their land.  Politz, Reinhardt (author), and Hawkins, Circuit Judges.  E. Shute of. San Francisco, CA, for the defendant-appellant-cross-appellee;  L. Hoffman of Tahoe City, CA, for the plaintiff-appellee-cross-appellee. (Download the full text at www.ce9.uscourts.gov/) 

8)  ENVIRONMENTAL LAW:  USA v. Asarco Inc., 98-36247 (9th Cir. June 15, 2000).  The Ninth Circuit lacks jurisdiction to adjudicate the validity of the expansion of the boundaries of a property the Environmental Protection Agency places on the National Priorities List, a list of the most contaminated sites in the country, as that jurisdiction is vested exclusively in the D.C. Circuit.  Reinhardt (author), Thompson, and T.G. Nelson, Circuit Judges.  R. Spritzer of Washington, DC, for the plaintiff-appellant;  P. Nickles of Washington, DC, and F. Gribler of Kellogg, ID, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/)

 9)  ENVIRONMENTAL LAW:  Metcalf v. Daley, 98-36135 (9th Cir. June 9, 2000).  A federal agency violated the National Environmental Policy Act be agreeing to support a tribe's whaling application before publishing a draft EA or EIS for public review;  dissenting Judge Kleinfeld thought the majority erred by (1) imposing a novel version of the "objectivity" requirement which could not be applied in a predictable, consistent manner in other cases, (2) misconstruing the regulation controlling the time when an EA ought to be prepared, and requiring that a new EA be prepared without finding anything wrong with the old one.  Trott (author), Kleinfeld (dissenting), and Silverman, Circuit Judges.  R. Oakley of Washington, DC, for the defendants;  J. Lovvorn of Washington, DC, for the plaintiffs. (Download the full text at www.ce9.uscourts.gov/) 

10)  BANKRUPTCY:  In re Donovan Corp., 98-17313 (9th Cir. June 7, 2000).  A US Trustee has standing under 11 USC Sec. 307 to appeal a bankruptcy judge's decision to the district court.  Wood, Kleinfeld (author), and Graber, Circuit Judges.  J. Crouse Washington, DC, for the appellant; no appearance for appellees.  (Download the full text at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY:  In re S.S. Retail Stores, 99-16413 (9th Cir. June 30, 2000).  It would be inequitable to require the debtor's law firm to disgorge attorneys' fees and costs when its representation had been approved by the bankruptcy court, no impropriety had been alleged, and the Trustee had not sought a stay order.  Hug and Thompson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  D. Kaplan of Washington, DC, for the trustee;  J. Landers of San Francisco, CA, for the debtor. (Download the full text at www.ce9.uscourts.gov/)

12)  BANKRUPTCY:  In re Feiler, 99-15665 (9th Cir. June 27, 2000).  A trustee's power to avoid a fraudulent transfer of an interest of the debtor takes precedence over a taxpayer's otherwise "irrevocable" election under IRC Sec. 172 to forego a net operating loss carryback.  Alarcon, Tashima, and Silverman (author), Circuit Judges.  T. Clark of Washington, DC, for the appellant;  M. McQuaid of San Francisco, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

13)  INSURANCE:  National Warranty Insurance Co. v. Greenfield, 98-36054 (9th Cir. June 5, 2000).  The Product Liability Risk Retention Act of 1981, as amended by the Liability Risk Retention Act of 1986, preempts the Oregon Service Contract Act.  Kleinfeld and W. Fletcher (author), Circuit Judges, and Manella, District Judge.  D. Fjordbeck of Salem, OR, for the defendant;  H. Hannah of Harrisburg, PA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

14)  HEALTH INSURANCE:  Radici v. Associated Insurance Companies, 98-17437 (9th Cir. June 29, 2000).  The "continuation health care coverage" provisions of the federal Public Health Services Act do not preempt state law.  Tashima and Graber, Circuit Judges, and Kelleher (author), District Judge.  S. Parsons of Las Vegas, NV, for the plaintiffs-appellants;  L. Sanders of Las Vegas, NV, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

15)  DISABILITY BENEFITS:  Moore v. Apfel, 98-56318 (9th Cir. June 22, 2000).  The Commissioner's Hearings, Appeals, and Litigation Manual, which provides policy and procedural guidelines, does not prescribe substantive rules and does not carry the force of law.  Fernandez, Tashima, and Silverman (author), Circuit Judges.  L. Rohlfing of Santa Fe Springs, CA, for the plaintiffs;  E. La of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/)

16)  LABOR LAW / ERISA:  Gerwen v. Guarantee Mutual Life, 98-56028 (9th Cir. June 1, 2000).  A district court abused its discretion in when it adjusted downward its award of attorneys' fee at the multiplier stage to reflect poor quality of representation without explaining why quality of representation was not accurately reflected in the lodestar amount.  Rymer and Fisher (author), Circuit Judges, and George, District Judge.  C. Fleishman of Beverly Hills, CA, for plaintiff;  P. Hannabach of Rancho Santa Margarita, CA, for defendants. (Download the full text at www.ce9.uscourts.gov/) 

17)  LABOR / RICO:  Monterey Plaza Hotel v. Local 483, Hotel & Restaurant Employees Union, 99-16714 (9th Cir. June 7, 2000).  The targeting of a hotel by a union during a protracted labor dispute did not constitute wire or mail fraud where the union did not attempt to obtain property by deceiving the hotel or its customers.  Goodwin (author), Brunetti, and Thomas, Circuit Judges.  N. Andrus of San Francisco, CA, for the plaintiff;  M. Anderson of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

18)  LABOR LAW:  Does I thru XXIII v. Advanced Textile Corp., 99-16713 (9th Cir. June 2, 2000).  Where the named plaintiffs in a Fair Labor Standards Act action show that they have an objectively reasonable fear of extraordinarily severe retaliation, they may conceal their identities from the defendants at least until the district court rules on the named plaintiffs' motion for court-ordered notice to potential class members, and potential class members have had an opportunity to join the suit.  Bright, Pregerson (author), and Hawkins, Circuit Judges.  M. Rubin of San Francisco, CA, for the plaintiffs-appellants;  S. Bomse of San Francisco, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

19)  EMPLOYMENT DISCRIMINATION:  Frank v. UAL, 98-15638 (9th Cir. June 21, 2000).  An airline's weight limit rule that applied less favorably to women employees than men and was not a bona fide occupational qualification was discriminatory on its face;  Judge O'Scannlain concurred in the affirmance of the district court's summary judgment for UAL on the plaintiffs' disparate treatment claims under the Age Discrimination in Employment Act and individual claims under the ADA, but dissented from the reversal of the summary judgment for UAL on the plaintiffs' remaining claims under Title VII and the Age Discrimination in Employment Act.  Reinhardt, O'Scannlain (dissenting in part), and W. Fletcher (author), Circuit Judges.  E. Benay of San Francisco, CA, for the plaintiffs;  T. Jerman of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

20)  LABOR LAW / SEXUAL HARASSMENT: Brooks v. City of San Mateo, 98-15818 (9th Cir. June 5, 2000).  A single, unsavory reported episode of workplace sexual harassment, followed by a prompt removal of the harasser from the work place, did not support a claim of hostile work environment under Title VII of the Civil Rights Act.  Wood, Kozinski (author), and Rymer, Circuit Judges.  J. Prentice of San Francisco, CA, for the plaintiff;  N. Pritikin of San Francisco, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

21)  AMERICANS WITH DISABILITIES / ATTORNEYS' FEES:  Fischer v. SJB-P.D., Inc., 98-56586 (9th Cir. June 15, 2000).  A blind person who has obtained injunctive relief under the Americans with Disabilities Act is a "prevailing party" entitled attorneys' fees.  Hug and Ferguson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  T. Frankovich of San Francisco, CA, for the plaintiff-appellant;  S. Kouretchian of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

22)  AMERICANS WITH DISABILITIES:  Botosan v. Paul McNally Realty, 99-55580 (9th Cir. June 20, 2000).  Notice to a state or local agency charged with enforcing the relevant civil rights laws is not required before filing an Americans With Disabilities Act claim.  Browning and Tashima, Circuit Judges, and King (author), District Judge.  D. Merkin of La Jolla, CA, for the defendants;  R. Handy of San Diego, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

23)  GOVERNMENT LAW:  Schaefer v. Townsend, 98-55718 (9th Cir. June 20, 2000).  The requirement of California Elections Code Sec. 201 that candidates to the U.S. House of Representatives reside within California when filing nomination papers, as distinct from when elected, violates the U.S. Constitution by handicapping the class of nonresident candidates who otherwise satisfy the Qualifications Clause.  Pregerson, Noonan, and O'Scannlain (author), Circuit Judges.  M. Schaefer pro se;  L. Cabatic of Sacramento, CA, and W. Katzenstein of Riverside, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

24)  CIVIL PROCEDURE:  Bautista v. Los Angeles County, 97-56074 (9th Cir. June  20, 2000).  Where plaintiff's second amended complaint contained deficiencies that were readily curable with some guidance from the court, dismissal with prejudice was an abuse of discretion;  concurring, Judge Reinhardt thought the second amended complaint complied with all the applicable pleading requirements;  dissenting in part, Judge O'Scannlain rejected the notion that the district court must give plaintiffs "some guidance" on how to plead a case and rejected the idea that it is an abuse of discretion when the district court does not.  Reinhardt (concurring) and O'Scannlain (dissenting in part), Circuit Judges, and Schwarzer (author), District Judge.  T. Brill of Newport Beach, CA, for the plaintiffs;  M. Attwood of Los Angeles, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 
 

25)  MALICIOUS PROSECUTION:  Morales v. Los Angeles, 98-56478 (9th Cir. June 12, 2000).  The limitations period for a malicious prosecution claim begins to run on the date of the trial court's final judgment and, under California law, is tolled from the date of the filing of the notice of appeal until the appeal becomes final.  Fernandez, Tashima, and Silverman (author), Circuit Judges.  D. Cook of Los Angeles, CA, for the plaintiffs; K. Hamilton of Los Angeles, CA, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

26)  FOOD STAMPS / DUE PROCESS:  Vasudeva v. USA, 98-35726 (9th Cir. June 12, 2000).  Imposing civil monetary penalties against store-owners in lieu of permanent disqualification for trafficking in food stamp complies with the APA and comports with substantive due process.  Leavy, Rymer (author), and T.G. Nelson, Circuit Judges.  R. Tallman of Seattle, WA, for the plaintiffs;  C. Kohl of Washington, DC, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

27)  ZONING:  Young v. City of Simi Valley, 97-56484 (9th Cir. June 20, 2000).  The ability of private parties to obtain at any time during the permitting process an "over-the-counter" zoning permit that disqualifies a pending adult use permit is facially invalid under the First Amendment;  as a matter of law, the existence of four potential simultaneously available adult use sites in a city where only one application is pending not insufficient to provide alternative avenues of communications under City of Renton v. Playtime Theatre, Inc. 475 US 41 (1986);  dissenting in part, Judge O'Scannlain thought that the ordinance allowed "reasonable alternative avenues of communication" and, although its "over-the-counter" provision raised constitutional concerns, they could be challenged on an "as applied" basis; it is not, he thought, unconstitutional on its face.  Ferguson, O'Scannlain (dissenting in part), and Tashima (author), Circuit Judges.  B. Deixler of Los Angeles, CA, for the defendant;  R. Diamond of Santa Monica, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

28)  ZONING:  Diamond v. City of Taft, 98-17253 (9th Cir. June 27, 2000).  A local zoning ordinance that allows for the potential availability of seven adult business sites in a small rural town is constitutional. Boochever, Hawkins (author), and Thomas, Circuit Judges.  R. Diamond of Santa Monica, CA, for the plaintiff-appellants;  J. Gibson of Bakersfield, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

29)  ZONING:  Lim v. Long Beach, 98-55915 (9th Cir. June 27, 2000).  A city may meet its burden of justifying restrictions on freedom of speech under an adult entertainment zoning ordinance by specifying in good faith a reasonable list of potentially available commercial properties;  it then is the plaintiff's burden to show that, in fact, certain sites would not reasonably become available.  Boochever, Hawkins (author), and Thomas, Circuit Judges.  R. Diamond of Santa Monica, CA, for the plaintiffs;  D. Murphy of Long Beach, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

30)  IMMIGRATION LAW:  Ladha v. INS, 98-70772 (9th Cir. June 1, 2000).  The BIA erred as a matter of law when it required corroborative evidence to support an alien's credible testimony during an asylum hearing;  an immigration judge erred as a matter of law in failing to make a record of the evidence.  Pregerson and Wardlaw (author), Circuit Judges, and Shadur, District Judge.  G. Silbiger of Los Angeles, CA, for the petition-ers;  L. Friedman of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

31)  IMMIGRATION LAW:  Alberto-Gonzales v. INS, 97-70473 (9th Cir. June 6, 2000).  Congress intended the phrase "for which the term of imprisonment [is] one year or more" in 8 USC Sec. 1101(a)(43(G) to refer to the actual sentence imposed by the trial judge, not the potential sentence the judge could have imposed.  B. Fletcher, Hawkins (author), and Hawkins, Circuit Judges.  A. Lawrence of San Francisco, CA, for the petitioner;  L. Geisse of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

32)  IMMIGRATION LAW / ASYLUM:  Navas v. INS, 98-70363 (9th Cir. June 20, 2000).  A petitioner established statutory eligibility for asylum based upon political persecution where he had been shot at and threatened with death, and his mother had been assaulted and his aunt murdered for their political activities, and the persecutors were aware of the petitioner's similar activities.  Bright, Reinhardt (author), and Trott, Circuit Judges.  L. Van Antwerp of Los Angeles, CA, for the petitioner;  H. Phillips of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

33)  IMMIGRATION LAW:  USA v. Mateo-Mendez, 99-50394 (9th Cir. June 21, 2000).  A "Certificate of Nonexistence of Record" issued on behalf of the Attorney General was prop-erly admitted as self-authenticating in a criminal trial for illegal reentry despite the document not being executed by an officer to whom the AG had expressly delegated such authority.  Rein-hardt and O'Scannlain (author), Circuit Judges, and Schwarzer, District Judge.  L. Daniels of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

34)  IMMIGRATION & CRIMINAL LAW:  Castro-Baez v. Reno, 99-70484 (9th Cir. June 30, 2000).  A rape conviction under Cal. Penal Code Sec. 261 constitutes an "aggravated felony" under Sec. 101(a)(43)(A) of the Immigration and Naturalization Act.  B. Fletcher, Hawkins, and Thomas (author), Circuit Judges.  L. Peckham of Santa Rosa, CA, for the petitioner;  R. Mueller of San Francisco, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

35)  IMMIGRATION LAW / CRIMINAL LAW: Ye v. INS, 98-70784 (9th Cir. June 9, 2000).  An alien convicted of vehicle burglary has not committed a "burglary" or "crime of violence" in the sense of an "aggravated felony" under 8 USC Sec. 1227(a)(2)(A)(iii).  B. Fletcher, Hawkins (author), and Thomas, Circuit Judges.  L. Marcus of Tucson, AZ, for the petitioner;  H. Phillips of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

36)  RIGHT TO COUNSEL:  Bribiesca v. Galaza, 99-55957 (9th Cir. June 19, 2000).  A defendant's in-court misconduct, which occurred after the court had denied his motion to represent himself, could not be, and was not in fact, the reason for the court's decision;  if anything, the denial prompted the misconduct.  Thompson, W. Fletcher, and Fisher (author), Circuit Judges.  C. Robins of Los Angeles, CA, for the respondent;  DFPD M. Tanaka of Los Angeles, CA, for the petitioner. (Download the full text at www.ce9.uscourts.gov/) 

37)  PLEA AGREEMENTS:  USA v. Anglin, 99-10386 (9th Cir. June 7, 2000).  The government's clear mistake in failing to remove from a plea agreement boilerplate language that reserves a defendant's right to appeal her conviction did not necessarily vitiate other language in the agreement that clearly waived that right.  Sneed (author), Schroeder, and Tashima, Circuit Judges.  S. Pingree of Honolulu, HI, for the defendant-appellant;  AUSA L. Osborne of Honolulu, HI, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

38)  IMMUNITY:  Idaho v. Horiuchi, 98-30149 (9th Cir. June 14, 2000).  Supremacy Clause immunity protects a federal law enforcement agent from state court criminal prosecution where the agent, acting within the scope of his official duty, reasonably and honestly believes that shooting of a fleeing suspect to pre-vent her from taking an armed, defensive position is necessary and proper;  dissenting, Judge Kozinski noted that a Senate Committee, the Justice Department's Office of Professional Responsibility and a prior Ninth Circuit panel all concluded that the shooting here was patently unconstitutional;  the majority's contrary decision here, Judge Kozinski thought, "creates a square intra-circuit conflict and throws a monkey wrench into our law governing the proper use of deadly force."  Kozinski (dissenting) and Fernandez, Circuit Judges, and Shubb (author), District Judge.  D. Woodbury of Boundary County, ID, for the plaintiff;  E. Silbert of Washington, DC, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

39)  PROSECUTORIAL MISCONDUCT:  USA v. Jiang, 99-10367 (9th Cir. June 14, 2000).  A delay in bringing the defendants to trial, less than one month of which was attributable to the government's asserted misconduct, was not presumptively prejudicial.  Wood, Kleinfeld, and Graber (author), Circuit Judges.  V. Marani of Washington, DC, for the plaintiff-appellant;  H. Trapp of Hagatna, GU, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

40)  SPEEDY TRIAL:  USA v. Boyd, 99-10384 (9th Cir. June 2, 2000).  A "violation notice" alleging a violation of 18 USC Sec. 111, resisting or impeding an officer or employee of the federal government, does not trigger the Speedy Trial Act.  Tashima and Graber, Circuit Judges, and Kelleher (author), Circuit Judges.  AFPD J. Balazs of Sacramento, CA, for the defendant;  AUSA M. McKeon of Sacramento, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 
 

41)  EVIDENCE:  USA v. Jimenez, 99-10133 (9th Cir. June 14, 2000).  A district court's attempt to sanitize evidence of a defendant's prior felony convictions, which instead inadvertently exacerbated the danger of unfair prejudice, constituted reversible error.  Van Graafeiland, Alarcon, and Silverman (author), Circuit Judges.  AFPD of Las Vegas, CA, for the defendant;  AUSA R. Bork of Las Vegas, NV, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

42)  EVIDENCE:  USA v. Benavidez-Benavidez, 99-10270 (9th Cir. June 28, 2000).  A proper finding that unstipulated polygraph evidence was inadmissible under Federal R. Evid. 403 was sufficient for its exclusion.  Wallace, Pregerson, and Thomas (author), Circuit Judges.  S. Young of Tucson, AZ, for the defendant.  AUSA R. Gordon of Tucson, AZ, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

43)  EVIDENCE:  USA v. Campos, 97-50635 (9th Cir. June 28, 2000).  Unstipulated polygraph evidence regarding the defendant's mental state is inadmissible under Federal Rule of Evidence 704(b) when it involves the ultimate issue of mens rea;  Judge Pregerson agreed that the evidence was inadmissible because it spoke directly to the ultimate issue of the defendant's mens rea, but disagreed with he majority's conclusion that the trial judge did not plainly err under Rule 704(b) in permitting the government to offer an expert's testimony that the defendant knew about marijuana hidden in a van she was driving when she attempted to enter the United States from Mexico.  Wallace, Pregerson (dissenting in part), and Thomas (author), Circuit Judges.  F. Murphy of San Diego, CA, for the defendant;  AUSA A. Hernandez of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

44)  SEARCH & SEIZURE:  USA v. Wright, 98-50489 (9th Cir. June 19, 2000).  An anonymous tip plus evidence that an injured robber left blood at the scene of the crime was sufficient to support a finding of probable cause to believe that the defendant's blood would have evidentiary value.  Thomas, Silverman (author), and Wardlaw Circuit Judges.  J. Walsh of Los Ange-les, CA, for the defendant-appellant;  AUSA N. Kardon of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

45)  SEARCH & SEIZURE:  USA v. Wallace, 99-50567 (9th Cir. June 9, 2000).  A police officer who stops a vehicle, knowing that that it had illegally tinted windows did not lack probable cause for the stop merely because he misunderstood why the tinting was illegal.  Fernandez, Tashima, and Silverman (author), Circuit Judges.  AUSA D. Curnow of San Diego, CA, for the plaintiff;  T. Burns of San Diego, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

46)  SEARCH & SEIZURE:  USA v. Cervantes, 98-50722 (9th Cir. June 12, 2000).  Adopting a test formulated in People v. Mitchell, 347 NE 2d 607 (NY 1976), the USCA concluded that the search of an apartment which revealed a methamphetamine lab was justified by the emergency doctrine.  Browning and Tashima (author), Circuit Judges, and Jones District Judge.  M. Garey of Santa Ana, CA, for the defendant-appellant;  AUSA C. Luege of Santa Ana, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

47)  ENTRAPMENT:  USA v. Poehlman, 98-50631 (9th Cir. June 27, 2000).  Government agents impermissibly entrapped a defendant who was not shown to be predisposed to engaging in sex with minors when it induced him through protracted and aggressive correspondence to show an interest in having sex with the agent's minor children;  dissenting, Judge Thompson thought that because there was sufficient evidence for a reasonable jury to find that the government did not induce the defendant to commit the crime and to find that he was predisposed to commit the crime, the jury's verdict should have been upheld.  B. Fletcher, Kozinski (author), and Thompson (dissenting), Circuit Judges.  E. Robinson of Torrance, CA, for the defendant;  AUSA L. Li of Los Angeles, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

48)  JURY INSTRUCTIONS:  USA v. Smith, 99-10171 (9th Cir. June 29, 2000).  A court's refusal to give the defendant's defense theory jury instruction together with a prosecutor's substantial misstatement of law to the jury resulted in reversible error.  Alarcon, Tashima, and Silverman (author), Circuit Judges.  R. Gardiner of Fairfax, VA, for the defendant-appellant;  AUSA J. Green of Las Vegas, NV, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

49)  CRIMINAL PROCEDURE:  USA v. Fleming, 99-10324 (9th Cir. June 7, 2000).  The failure to include an explicit description of the defendant's pending civil suit as a "pending proceeding" was harmless error for an indictment of the defendant for attempting to influence a federal judge in the discharge of his duties in a civil case.  B. Fletcher, Alarcon (author), and Hawkins, Circuit Judges.  AFPD M. Ament of Fresno, CA, for the defendant-appellant;  AUSA J. Conklin of Fresno, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

50)  JURORS:  USA v. Gonzalez, 97-10520 (9th Cir. June 15, 2000).  Failure to excuse for cause a juror whose traumatic personal experience was similar or identical to conduct alleged against a criminal defendant and who responds equivocally as to whether she could be fair and impartial required reversal.  Politz, Reinhardt (author), and Hawkins, Circuit Judges.  AUSA S. Corrigan of San Francisco, CA, for the plaintiff-appellee;  A. Schwartz of Berkeley, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

51)  SENTENCING:  USA v. Maldonado, 97-50440 (9th Cir. June 26, 2000).  Despite a plea agreement to make certain recommendations, the prosecution has a duty to supply the sentencing court with complete and accurate information, enabling the court to impose an appropriate sentence.  Wallace, Trott, and Gould (author), Circuit Judges.  S. Baiz of San Diego, CA, for the defendant;  AUSA J. Alvarez of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

52)  SENTENCING:  USA v. Mezas de Jesus, 98-50639 (9th Cir. June 16, 2000).  A district court erred in failing to apply the "clear and convincing evidence" standard before enhancing a sentence based on an uncharged offense that had a disproportionate effect on the sentence relative to the offense of conviction.  B. Fletcher and Pregerson (author), Circuit Judges, and Weiner, District Judge.  FPD M. Knox of Los Angeles, CA, for the defendant;  AUSA M. Greenberg of Santa Ana, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

53)  SENTENCING:  USA v. Aguirre, 99-50135 (9th Cir. June 19, 2000).  In imposing a downward departure, the district court was not correcting a "clear error" for purposes of Fed. R. Crim. P. 35(b);  concurring, Judge Ferguson agreed that Rule 35(c) does not permit a district court to change its mind about a sentence it has already imposed, but wrote separately to highlight the narrow focus of the ruling which reverses the departure, not because the Guidelines preclude it, but because the timing and procedures the district court used in granting the departure violated Rule 35(c); he noted that the USCA did not decide whether a district court could grant a downward departure based on the absence of a local women's prison facility.  Hug and Ferguson (concurring), and Restani (author), Intl. Trade Court Judge.  AUSA R. Cheng of Los Angeles, CA, for the plaintiff;  T. Lan-nen of Los Angeles, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

54)  SENTENCING:  USA v. Kakatin, 99-10361 (9th Cir. June 1, 2000).  The "safety-valve" provision of 18 USC Sec. 3553(f) does not apply to a conviction under 21 USC Sec. 860 for dis-tributing controlled substances within 1000 feet of a school.  Wood, Kleinfeld, and Graber (author), Circuit Judges.  AFD A. Silvert of Honolulu, HI, for the defendant-appellant;  AUSA C. Nakamura of Honolulu, HI, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

55)  SENTENCING:  USA v. Bowman, 99-30120 (9th Cir. June 12, 2000).  It was not impermissible double counting to increase a defendant's offense level for brandishing a firearm during robbery counts other than the one on which he was actually convicted of using a firearm.  Leavy, Rymer (author), and T.G. Nelson, Circuit Judges.  P. Camiel of Seattle, WA, for the defendant;  AUSA A. Storm of Tacoma, WA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

56)  SENTENCING:  USA v. Banuelos-Rodriguez, 96-50297 (9th Cir. June 14, 2000).  Sentencing disparities arising from charging and plea-bargaining decisions of different US Attorneys' is not a proper ground for departing from the Guidelines;  dissenting, Judge Pregerson thought the crucial issue was whether a district court has discretion to consider a downward departure because disparate districtwide plea-bargaining policies of US Attorneys in contiguous districts in Central, Eastern, Southern, and Northern California have created unjustified sentencing disparities for violations of 8 USC Sec. 1326;  the district court held that it lacked such discretion and the majority affirmed;  Judge Pregerson would reverse on the ground that prosecutors in the various California districts are using their authority to plea bargain on a wholesale, district-wide basis in a way that distorts the "heartland" of Guideline Sec. 2L1.2 and defeats sentencing uniformity for violators of Sec. 1326. Hug, Schroeder, Pregerson (dissenting), O'Scannlain, Fernandez, Rymer, Kleinfeld, Hawkins, Thomas, Graber (author), and W. Fletcher, Circuit Judges.  C. Gunn of Los Angeles, CA, for the defendant; AUSA M. Krinsky of Los Angeles, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

57)  SENTENCING:  USA v. Haynes, 98-30221 (9th Cir. June 16, 2000).  A district court could not ignore a defendant's guilty plea which admitted a number of legally seized marijuana plants and then exclude those plants from the quantity calculus in an effort to punish government misconduct where there was no nexus between the seizure of the plants and the misconduct;  dissenting in part, Judge Reinhardt thought this case unusual due to the cavalier manner in which the government accepted the assistance of an informant who it knew was handing over information protected by the attorney-client privilege;  he thought the trial judge properly excluded that information.  Reavley, Reinhardt (dissenting in part), and McKeown (author), Circuit Judges.  A. Ressler of Seattle, WA, for the defendant;  K. Hoppmann of Washington, DC, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

58)  SENTENCING:  Weighall v. Middle, 99-35657 (9th Cir. June 1, 2000).  An person convicted under state law is not entitled to federal habeas relief where the state court's application of federal ineffective assistance of counsel law was neither clearly erroneous nor unreasonable.  Lay, Tashima, and McKeown (author), Circuit Judges.  AFPD T. Hester of Portland, OR, for the petitioner;  J. Lloyd of Salem, OR, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

59)  SENTENCING:  USA v. Williams, 99-10295 (9th Cir. June 29, 2000).  In sentencing, a district court may consider actions which may be barred from prosecution by the applicable statute of limitations.  Politz (author), Reinhardt, and Hawkins, Circuit Judges.  J. Lambrose of Las Vegas, NV, for the defendant;  AUSA R. Rukstele of Las Vegas, NV, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

60)  SENTENCING:  Johnson v. Lewis, 98-16821 (9th Cir. June 29, 2000).  Summary judgment was inappropriate where the plaintiff class of prison inmates presented evidence that, if believed by a fact-finder, would demonstrate that prison officials deliberately failed to rectify severe deprivations of basic human necessities of which they had actual knowledge in violation of the prohibition against cruel and unusual punishment;  dissent-ing, Judge Sneed cited Whitley v. Albers, 475 US 312 (1986), for the proposition that only the unnecessary and wanton inflic-tion of pain constitutes the cruel and unusual punishment;  he thought that here the deprivations of shelter were necessary and the alleged deprivations of adequate food, water and sanitation were not wanton.  Sneed (dissenting), Pregerson, and W. Fletcher (author), Circuit Judges.  P. Gattone of Tucson, AZ, for the plaintiffs;  B. Skolnik of Tucson, AZ, the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

 1)  INTELLECTUAL PROPERTY:  Religious Technology Center v. Henson, 98-17120 (9th Cir. June 23, 2000) (unpublished).  Lay, D.W. Nelson, and Thomas, Circuit Judges. 

        The District Court for the Northern District of California, Judge Whyte presiding, found Henson in civil contempt for violating a court order with respect to a copyright infringement action filed by Religious Technology Center (RTC).  Henson appealed pro se.  RTC cross-appealed, challenging the amount of the attorneys' fees award.
         The USCA affirmed in part and reversed in part.  It found that the district court did not err in choosing to pursue a civil action for contempt instead of a criminal one.  It noted that, although it is true that the same conduct may result in both civil and criminal proceedings, the purpose of civil contempt is coercive or compensatory, whereas the purpose of criminal contempt is punitive, and to vindicate the court's authority in the face of disrespectful acts.  The district court's choice to impose a compensatory sanction appears perfectly appropriate in light of Henson's undisputed failure to take all reasonable steps within his power to comply with the court's order.  Payment by the cotemnor of attorneys' fees and costs to the complainant is a common compensatory, remedial civil sanction.  With respect to the amount of attorneys' fees awarded to RTC, the USCA found that the district court, although it did not abuse its discretion in determining that the plaintiffs were entitled to an award of attorneys' fees (or a substantial reduction in the amount claimed), it failed to make specific findings regarding the rate and number of hours it determined to be reasonably spent on the motion for contempt, as well as the larger scope of proceedings.  The USCA thus remanded so that the district court could make such findings following Frank Music Corp. v. Metro-Goldwyn-Mayer, 886 F.2d 1545 (9th Cir. 1989), and adjust its figures if needed considering, among other things, the degree of success obtained; frivolousness; motivation; objective unreasonableness (both in the factual and legal arguments); and the need in particular circumstances to advance considerations of compensation and deterrence.

2)  SECURITIES LAW:  Khalaf v. Lobsenz-Stevens, Inc., 99-55675 (9th Cir. June 28, 2000) (unpublished).  Kozinski, T.G. Nelson, and Wardlaw, Circuit Judges.
             In upholding the decision of the District Court for the Southern District of California, Judge Gonzalez presiding, the USCA noted that the sole ground urged by the appellants in their Rule 60(b) motion was that the legislative history accompanying the Securities Litigation Uniform Standards Act of 1998 shows that the district court interpreted the pleading requirements of the Private Securities Litigation Reform Act of 1995 in a manner contrary to the later-expressed intent of Congress.  The USCA held that the district court did not abuse its discretion in finding the subsequent legislative history inappropriate grounds for reconsidering the judgment.  The USCA did not review the district court's judgment of dismissal itself, as unlike other errors in the filing of a notice of appeal, a party's failure to file a timely notice of appeal deprives the USCA of jurisdiction over the judg-ment appealed from.  Finally, citing Brennan v. Midwestern United Life Ins. Company, 450 F.2d 999 (7th Cir. 1971), the appellants urged the USCA to review the merits of the district court's underlying decision as part of its review of the Rule 60(b) decision.  However, the USCA declined to decide whether Brennan is consistent with the law of the Circuit, as the appellants had not shown that the district court's judgment was void or a vehicle of injustice.  The USCA nevertheless denied the appellee's request for sanctions in light of the appellants' colorable reliance on Brennan.

3)  CONTRACTS:  March Point Cogeneration Co. v. Puget Sound Power & Light, 97-36203 (9th Cir. June 30, 2000) (unpublished).  Trott, Kleinfeld, and Silverman, Circuit Judges.
            This action arose out of two contracts entered into by Puget Sound Energy, Inc. and March Point Cogeneration Company under the Public Utility Regulatory Policies Act of 1978, in which March Point agreed to build and operate two phases of a qualified cogeneration facility and Puget agreed to purchase the electricity produced by the facility.  The District Court for the Western District of Washington, Judge Rothstein presiding, concluded that as a matter of law the contracts did not require March Point to seek separate certification of qualifying cogeneration facility status from the Federal Energy Regulatory Com-mission (FERC) for each phase of the facility.
            The USCA affirmed.  First, it agreed with the district court that the contracts clearly and unambiguously did not require that each phase of the facility be separately qualified.  Rather, they required that the projects be a qualified facility within the meaning of 16 USC Sec. 796(18)(B).  The district court's interpretation of the contracts was consistent with FERC's certification of the projects.  The FERC, which has the exclusive authority to make qualified cogeneration facility status determinations, certified the projects as one qualified cogeneration facility.  Second, March Point cross-appealed the district court's denial of attorney's fees.  The USCA noted that it was within the district court's discretion to award a prevailing party attorneys' fees and that it did not abuse that discretion.  Notwithstanding repeated assertions to the contrary, the district court did not find that Puget litigated in bad faith.  Third, Puget argued that the district court erred by maintaining its protective order regarding the confidentiality of documents, one of which was introduced as an exhibit at trial.  The USCA declined to reach the merits of this contention.  Puget stipulated to the order, pursuant to which the documents were produced.  It thus waived any appeal of the order itself.  Fourth, following the trial, Puget sought removal of the confidentiality order, but the district court order that confidentiality pursuant to the stipulation would remain in effect be-cause of the "highly proprietary  financial and business information" in the documents and because they "were produced in reliance" on the stipulated order.  However, Puget had already violated the order when it sought to have the district court alter the status of the documents and des-ignate them non-confi-
dential.  Because Puget violated the order to which it had stipulated, prior to any challenge, it was estopped by its conduct from appealing the district Court's subsequent denial of any modification that would rectify the violation that had already taken place.

4)  CONTRACTS / BUSINESS TORTS:  Galaxy Networks, Inc. v. Kenan Systems Corp., 97-56386 (9th Cir. June 2, 2000) (unpublished).  Brunetti and Wardlaw, Circuit Judges, and Sedwick, District Judge.
            The District Court for the Central District of California, Judge Pregerson presiding, denied Kenan Systems' renewed motion for judgment as a matter of law following a jury verdict awarding $1,292,000 to Galaxy Networks in quantum meruit.  Kenan argued that the judgment should be reversed because: (1) Galaxy presented improper evidence that tainted the jury's verdict;  (2) the evidence was insufficient to support the jury's award; and (3) the award was excessive.  Galaxy cross-appealed the district court's grant of summary judgment in favor of Kenan on Galaxy's breach of contract and interference with prospective business advantage claims. 
            The USCA affirmed.  First, the district court granted summary judgment in favor of Kenan on Galaxy's breach of contract claims, finding that the parties had not entered a valid contract because they had not agreed on all of its essential terms.  On appeal Galaxy argued that it had entered into a valid services contract with Kenan under which: (1) Galaxy had the exclusive right to represent Kenan with regard to an account with Time Telekom for six months, which was later extended;  (2) Kenan would not deal directly with Time Telekom;  (3) Kenan would receive a $2,500,000 license fee upon the licensing of its software product, Arbor/BP, to Time Telekom; and (4) Galaxy could mark-up the license fee as it saw fit.  However, the USCA noted that even assuming a June 24, 1994 meeting at Kenan's offices culminated in Galaxy and Kenan orally agreeing to the contractual terms alleged by Galaxy, the undisputed evidence demonstrates that although Galaxy and Kenan contemplated a legally enforceable agreement, and had mutually assented to some of its terms, they had not yet agreed on all the essential terms.  As early as August 3, 1994, Kenan faxed Galaxy a "Non Disclosure Agreement" and a "Proposal Generation Agreement Between Kenan Systems Corporation and Galaxy Networks, Inc."  The fax cover letter stated that the documents must be reviewed and signed prior to continued work on the Time Telekom account.  One week later on August 10, 1994, Galaxy faxed a response recommending that the parties change the Proposal Generation Agreement into a complete contract to cover both the sales of Arbor/BP and the engineering fee associated with all of the efforts behind it (i.e. proposals, customization and etc.).  Without coming to terms on the Proposal Generation Agreement, Galaxy's founder and president, Oliver Song, faxed Kenan on August 15, 1994, requesting that Kenan write a letter to state that Galaxy Networks had been appointed the "exclusive representative" for Kenan Systems in the Time Telekom project."  Although Kenan faxed the requested letter to Galaxy on August 18, 1994, including a similar letter addressed to Time Telekom, the parties had not yet settled on the "Proposal Generation Agreement" and in particular whether to change the agreement into a complete contract to cover both the sales of Arbor/BP and the engineering fee.  The parties failure to agree on the final terms also reflected in their subsequent correspondences, in which Galaxy stated:  "we really need to have the terms defined before making the commitment;" and "I need to know where we stand."  The USCA concluded as a matter of California law, that Kenan was not contractually bound to refrain from selling Arbor/BP directly to Time Telekom.  It thus affirmed the district court's grant of summary judgment in favor of Kenan on Galaxy's breach of oral and written contract claims and its breach of the implied covenant of good faith and fair dealing claims.
            Galaxy also appealed the district court's grant of sum-mary judgment in favor of Kenan on Galaxy's interference with prospective business advantage claims.  Under Califoria law, a plaintiff alleging that a defendant interfered with his prospective business advantage must prove:  (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff;  (2) the defendant's knowledge of the relationship;  (3) intentional acts on the part of the defendant designed to disrupt the relationship;  (4) actual disruption of the relationship;  and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.  The plaintiff must also plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plain-tiff's expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.  The district court concluded that Galaxy "failed to allege an inde-pendent wrong" as required under Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal. 4th 376 (1995).  Galaxy maintained that the court erred in light of evidence of four wrongful acts sufficient to raise a genuine issue of material fact.  Galaxy first argued that in revealing Galaxy's proprietary pricing information to Time Telekom, Kenan violated the parties' written mutual nondisclosure agreement and that this act was independently "wrongful."  The USCA rejected this argument because it sounded in contract nor tort.  Moreover, Galaxy's reliance on Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Dungan & Eisenberg, 216 Cal. App. 3d 1139 (1989), was misplaced, as there, the disclosure of confidence arose in the context of an attorney-client relationship and thus involved the attorney's fidu-ciary duties.  Here the alleged disclosure arose during the course of business negotiations and did not implicate the same concerns that arise when an attorney reveals a client's confidences.  Gal-axy next argued that Kenan sent a letter to Time Telekom deny-ing that Kenan was an "official distributor" as of May 25, 1995, and that this conduct was "wrongful."  However, the USCA held that this argument failed because Kenan did not have an en-forceable "official distributor" contract with Galaxy.  Thus, Kenan was making a truthful statement to an interested party when it denied that it had an official distributor.  Galaxy next argued that in bypassing Galaxy and dealing directly with Time Telekom, Kenan acted "wrongfully."  The USCA rejected this contention because it merely attempted to convert Galaxy's breach of contract claims into a tort claim.  Galaxy further asserted that by voluntarily accepting the benefits of Galaxy's efforts and encouraging further efforts after March 30, 1995, without notifying Galaxy that their relationship was over, Kenan engaged in wrongful conduct.  The USCA rejected this argument because it failed to meet the requirement that Kenan conduct constitute an "actual disruption of the relationship" between Galaxy and Time Telekom.  Whether Kenan accepted the bene-fits of Galaxy's efforts, and encouraged further efforts, without notifying Galaxy that their relationship was over was not "disruptive' of Galaxy's relationship with Time Telekom.  Moreover, the conduct was not "wrongful" under any standards set forth in California case law.
            Kenan argued that Galaxy promoted Arbor/BP in the hopes of obtaining its own billing contract with Time Telekom and thus that it is entitled to judgment as a matter of law on Gal-axy's quantum meruit claim.  The USCA disagreed, finding the issue controlled by In re De Laurentiis Entertainment Group, Inc., 963 F.2d 1269 (9th Cir. 1992).  Under De Laurentiis quantum meruit is an equitable remedy implied by the law under which a plaintiff who has rendered services benefiting the de-fendant may recover the reasonable value of those services when necessary to prevent unjust enrichment of the defendant. Quantum meruit is "not the same as a contract implied in fact.  Quantum meruit is based not on the intention of the parties, but rather on the provision and receipt of benefits and the injustice that would result to the party providing those benefits absent compensation.  The underlying idea behind quantum meruit is the law's distaste for unjust enrichment.  If one has received a bene-fit which one may not justly retain, one should 'restore the aggrieved party to his former position by returning the thing or its equivalent in money.  Kenan maintained that Galaxy was not entitled to recover in quantum meruit because it promoted Arbor/BP in the hopes that it might obtain its own $14 million dollar contract with Time Telekom and did not expect to be compensated for the service of promoting Arbor/PB on behalf of Kenan.  Although the evidence at trial demonstrated that Galaxy hoped to obtain its own contract with Time Telekom, construed in the light most favorable to Galaxy, it also reasonably supported the conclusion that at the time Galaxy was promoting Arbor/BP, it expected to be compensated upon the licensing of the software to Time Telekom.  The USCA did not believe that Peterson v. Lang, 301 P.2d 397 (Cal. Ct. App. 1956), con-trolled.  In contrast to the Peterson plaintiff, Galaxy reasonably believed that it had an exclusive right to represent Kenan in its dealings with Time Telekom and that Kenan would not license Arbor/BP directly to Time Telekom.  Although this exclusive right was not enforceable under contract law, the letters Kenan sent to Galaxy granting exclusivity provided a strong basis from which a jury could reasonably conclude that Galaxy expected to be compensated in the event Arbor/BP was licensed to Time Telekom.  The evidence demonstrates that Galaxy did not expect to lay the groundwork for the Arbor/BP license only to have Kenan step in during the eleventh hour and license the software to Time Telekom directly.  Thus, even though Galaxy may have been promoting Arbor/BP to obtain its own hoped-for contract with Time Telekom, a jury could reasonably conclude that Galaxy also expected compensation for its efforts in promoting the software and thus that Kenan was "unjustly enriched."  The USCA affirmed the district court's denial of Kenan's renewed motion for judgment as a matter of law.
            Kenan next argued that the judgment should be reversed because at trial Galaxy presented damage evidence through its expert witnesses that the jury could not permissibly consider.  Kenan first challenged Stotsenberg's testimony that the reasonable value of Galaxy's services was $1,719,000.  Stotsenberg had testified that in calculating that figure he relied on $809,000 in expenses and assumed labor incurred by Galaxy in relation to the Time Telekom billing contract and an assumed value of $910,000 for the services of Marzuki, who ran Galaxy's Malaysian subsidiary.  Kenan maintained that Stotsenberg's calculations improperly hinged on Galaxy's expected billing contract with Time Telekom, and that Galaxy failed to prove a nexus between its alleged expenses and the benefit conferred to Kenan.  The USCA noted that the expenses Galaxy incurred in attempting to secure its own billing contract with Time Telekom were relevant to prove the reasonable value of the services it performed for Kenan in promoting Arbor/BP.  The evidence showed that the Time Telekom contract Galaxy allegedly sought may have consisted solely of products and services relating to the Arbor/BP license.  Any difference between the contract Gal-axy sought for itself and the one it promoted for Kenan was subject to inquiry on cross-examination, as was the reasonable-ness of Galaxy's expenses.  The USCA thus held that the district court did not abuse its discretion in permitting Stotsenberg to testify about these expenses.

5)  MERGERS / NOTICE REQUIREMENTS:  Grace Brothers, Ltd. v. DNA Plant Technology Corp., 99-15564 (9th Cir. June 8, 2000) (unpublished).  Reinhardt (concurring), Kozinski, and Hawkins, Circuit Judges.
            Under Sec. 25506 of the California Corporations Code, the statute of limitations clock starts running when the plaintiff has notice of the alleged misconduct.  Here, Grace Brothers had inquiry notice of merger negotiations between  DNA Plant Technology Corporation (DNAP) and Empresas, at the very least, on the date the merger was formally announced, January 29, 1996.  The press release noted that DNAP had been looking for a strategic partner for months.  Yet, Grace did not file its lawsuit until August 13, 1997, over a year and a half after the merger was announced.  Additionally, Grace knew that some sort of negotiations had been in the works with Empresas's affiliate, Pulsar, as far back as 1995.  Thus, the district court did not err in holding that Grace's Sec. 25401 claim was time barred.  While the California Court of Appeal has held that an actual notice standard applies to claims under Sec. 25507, the USCA noted that it is bound by Kramas v. Security Gas & Oil Inc., 672 F.2d 7666 (9th Cir. 1982), which interprets Sec. 25506, until it is disapproved by the California Supreme Court.  Nor was the USCA convinced that Eisenbaum v. Western Energy Resources, 218 Cal. App. 3d 314 (1990), accurately predicts what the California Supreme Court would do if required to interpret Sec. 25506.  Eisenbaum relied primarily on the fiduciary rela-ion between the parties to impose an actual notice standard, addressing the language of Sec. 25507 only in passing.  In the instant case, the parties relationship was adversarial;  there were arm's length negotiators.  The district court thus did not err in holding that an inquiry notice standard applied.  In the Unit Purchase Agreement, DNAP warranted that no material change or adverse developments affected its business, results of operations or financial condition.  Merger negotiations, even advanced merger negotiations, do not fall into any of these categories of events.  Additionally, Grace had access to a great deal of information about DNAP throughout its negotiations, including that fact that DNAP had discussed a strategic partnership with an affiliate of its ultimate acquirer.  That satisfies any disclosure obligation that DNAP might have had with respect to the negotiations.  Finally, because the dispute here was over the legal sufficiency of the disclosure and not the facts underlying that disclosure, summary judgment was appropriate.  Judge Reinhardt concurred in the result but without comment.

6)  TAXATION:  Koenig v. CIR, 99-70071 (9th Cir. June 24, 2000) (unpublished).  Tashima and Graber, Circuit Judges, and Stotler, District Judge. 
            Koenig appealed the Tax Court's denials of his business bad debt deduction under IRC Sec. 166, and his deduction for ordinary and necessary expenses in a trade or business under IRC Sec. 162.
           The USCA affirmed.  Taxpayers bear the burden of showing their entitlement to a deduction.  The determination that a taxpayer has failed to produce sufficient evidence to support a deduction constitutes a factual finding subject to the "clearly erroneous" standard of review.  Koenig's claim for a business bad debt deduction was based on the sale of his company to a purchaser, which, along with its successor, allegedly defaulted on the payment of a variable commission between $200,000 and $900,000 for all "Net Sales" made during a seven-year period.  Under Sec. 166(a)(1), debts that become worthless during the taxable year are deductible from gross income.  A bona fide debt is a debt that arises from a debtor-creditor relationship based upon a valid and enforceable obligation to pay a fixed or deter-minable sum of money.  Only bona fide debts are deductible under Sec. 166.  A valid debt does not arise until the contingency occurs upon which the debt is premised.  The USCA concluded that the Tax Court did not err in finding no bona fide debt here.  Under the plain wording of the taxpayer's employ-ment agreement the total commission payable to him was variable and conditioned on his total "Net Sales" during the relevant seven-year period.  The amount of commission due, to the extent it was over and above the "Minimum Commission" of $200,000, was not a "fixed or determinable sum of money" such as to qualify as a bona fide debt under Treas. Reg. Sec. 1.166-1(c).  While the Minimum Commission was $200,000, the maximum was $900,000.  Because the taxpayer presented insufficient evidence to substantiate his entitlement to more than the Minimum Commission, he failed to carry his burden of proving a bona fide debt.  Next, Sec. 162(a), which provides a deduction for ordinary and necessary expenses paid or incurred in a trade or business, specifies that the taxpayer must be carrying on the trade or business during the taxable year in order to be entitled to the deduction.  Startup or pre-opening costs incurred by taxpayers are generally not recoverable.  Whether a business has begun to function as a "going concern" is a question of fact that turns on the circumstances of each particular case.  In ruling that Koenig was not actively involved in an ancient artifacts trade or business during 1990 to qualify for a Sec. 162 deduction, the Tax Court referred to his own testimony regarding the extensive preparation needed to start an ancient artifacts business.  All the evidence cited by the Tax Court (e.g., filing of fictitious business name statement in May 1991, insufficient inventory in 1990, no sales in 1990) supported the finding that Koenig was not engaged in an active trade or business.  Rather, his 1990 expenses related to nondeductible startup expenses.  He failed to show entitlement to a deduction under Sec. 162.

7)  TAXATION / REFUNDS:  Kay v. IRS, 98-56804 (9th Cir. June 30, 2000) (unpublished).  Wallace, Trott, and Gould, Circuit Judges.
            Following a dispute with the IRS, Kay filed suit in the District Court for the Central District of California to recover a tax refund he allege was due to him.  District Judge Paez dismissed the action for lack of subject matter jurisdiction and denied Kay's request for discovery made verbally at the argument on the Government's motion for summary judgment.
The USCA affirmed.  The primary issue was whether the District Court had jurisdiction.  Dismissal for lack of subject matter jurisdiction is reviewed de novo.  As a jurisdictional prerequisite to an action for a refund, a taxpayer must show that a refund claim was "duly filed" with the Secretary of the Treasury within the meaning of 26 USC Sec. 7422(a).  Compliance with 26 CFR Sec. 301.6402-2(b)(1) is also required for jurisdiction, and the claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the CIR of the exact basis for the claim.  The USCA found the rule clear that if a refund claim does not comply with Sec. 7422(a) and the regulations, the suit must be dismissed.  Here, Kay was unable to demonstrate that he complied with this requirement because he had no copies of his claim or supporting documentation.  He was also unable to explain the basis for his claim.  The district court thus correctly dismissed the suit for lack of subject matter jurisdiction.  On the issue of discovery, a district court's decision not to permit additional discovery pursuant to FRCP 56(f) is reviewed for abuse of discretion.  A request under Rule 56(f) to allow additional discovery normally must be accompanied by an affidavit or declaration filed before the summary judgment hearing.  Here, Kay's only request for additional discovery was an oral, undocumented and unsupported request to the judge during the summary judgment hearing.  The USCA found that Kay's discovery request was properly rejected.

8)  TAXATION / JURISDICTION:  Hyun v. U.S. Dept. of Treasury, 98-15285 (9th Cir. June 2, 2000) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges.
            The District Court for Arizona, Judge McNamee presiding, dismissed for lack of subject matter jurisdiction Hyun's 28 USC Sec. 2241 habeas petition alleging that the IRS is restraining his liberty and holding him in involuntary servitude.  Reviewing the matter de novo, the USCA affirmed, finding that the district court properly determined that it lacked subject matter jurisdiction over Hyun's petition because Hyun was not in custody when he filed the petition.  The USCA noted that under Sec. 2241(c), it may only entertain petitions filed by individuals who are "in custody" which is not limited to actual physical incarceration but does require that the petitioner be subject to restraints not shared by the public generally.  Because Hyun is not subject to such restraints, he is not "in custody" for purposes of Sec. 2241 and the district court properly dismissed his petition for lack of subject matter jurisdiction.

9)  BANKRUPTCY / SANCTIONS:  In re Mardec, Inc., 99-55098 (9th Cir. June 14, 2000) (unpublished).  Trott, Fernandez, and McKeown, Circuit Judges.
            The District Court for the Central District of California, Judge Stotler presiding, affirmed a bankruptcy court order and imposition of sanctions against Rossi for pursuing a frivolous appeal.  The USCA affirmed.  In November 1996, the bankruptcy court ordered that the Trustee recover a portion of a retainer ($7,200) from attorney Rossi.  Rossi appealed to the district court, which affirmed the judgment and held that the bankruptcy court properly ordered disgorgement of the retainer.  Rossi then moved for a rehearing on the question whether dis-gorgement "to the Trustee" was proper.  The district court d-nied the motion.  Instead of appealing that ruling, Rossi returned to the bankruptcy court and moved for a turnover / assignment order, claiming that a third party, rather than the Trustee, had rights to the retainer.  The Bankruptcy Court denied the motion, explaining that its previous order had already been affirmed by the district court and could not be tampered with at this stage.  Rossi appealed that denial to the district court, which again affirmed the bankruptcy court and ordered Rossi to pay $3,700 in fees as a sanction under Federal Rule of Bankruptcy Procedure 9011 for prosecuting a frivolous appeal.  Ross appealed that judgment.  The USCA affirmed.  Reviewing the matter de novo, the USCA concluded that after the district court first affirmed the disgorgement order, the bankruptcy court properly declined to revisit the issue.  To the extent that Rossi complained about the district court's orders entered February 12, 1998 and March 16, 1998, the USCA found it lacked jurisdiction to consider his arguments as he failed to filed a timely appeal from these orders.  The USCA reviewed for abuse of discretion the district court's imposition of sanctions pursuant to Rule 9011.  Explaining the sanctions, the district court stated:  "The appeal is without merit, and the issue presented has already clearly been decided by this Court.  The appeal appears to have been taken to cause unnecessary delay as well as to needlessly increase the cost of litigation."  Under these circumstances, the USCA concluded that the decision to impose sanctions was not an abuse of discretion.

10)  BANKRUPTCY:  In re Owen, 98-56876 (9th Cir. June 22, 2000) (unpublished).  Hug and Ferguson, Circuit Judges, and Restani, Court of Intl. Trade Judge.
             The District Court for the Central District of California, Judge Real presiding, upheld the bankruptcy court's decision to reclassify Groeper's claim after determining that he violated the automatic stay provision of the bankruptcy code by recording his judgment lien against the debtors after they had filed their bankruptcy petition.  Groeper argued that the automatic stay had not yet commenced when he recorded his lien as the debtors filed their petition under a bankruptcy chapter for which they were not qualified.  The USCA dismissed the appeal as moot.  It noted that in bankruptcy a case becomes moot in two situations: (1) when the appellant fails to obtain a stay pending appeal and the reorganization plan is carried out to "substantial culmination," or (2) when the appellant fails to obtain a stay and the rights of third parties have intervened.  The Trustee argued that the case fell squarely into the second situation.  Once the bankruptcy court ruled that Groeper's judgment lien was void, Groeper should have obtained a stay to maintain the status quo pending appeal.  Absent such a stay, the Trustee sold the property at issue and distributed the proceeds to the administrative claimants and secured creditors.  Once that the money has been distributed to third parties who are not before the court, there was no way for the USCA to fashion effective relief.  The appeal was thus moot.

11)  BANKRUPTCY:  Gravel Express v. Meadow Valley Contractors, 98-17066 (9th Cir. June 30, 2000) (unpublished).  B. Fletcher, Canby, and O'Scannlain, Circuit Judges.
            This controversy began when the debtor, Gravel Express, initiated proceeding in the bankruptcy court pursuant to 11 USC Sec. 542.  It sought the turnover of payments made by the Arizona Department of Transportation (ADOT) to Meadow Valley Contractors.  The bankruptcy court ruled in favor of Meadow Valley on nearly all grounds, but the District Court for Arizona, Judge Zapata presiding, held that the bankruptcy court had abused its discretion in various respects.  Meadow Valley appealed and Gravel Express cross-appealed regarding its claim of commercial impracticability.
 The USCA reversed the district court's decision on all issues except that of commercial impracticability.  First, it found no abuse of discretion in the bankruptcy court's denial of Gravel Express's second motion to amend its complaint.  The bankruptcy court acted well within its discretion in refusing to allow Gravel Express to amend to add a breach of contract claim eight months after trial and two months after the examiners had filed their report.  It was not unreasonable for the bankruptcy court to conclude that it would be prejudicial and unduly cumbersome to inject a new matter into the proceeding after it essentially had been concluded.  Moreover, Gravel Express's breach of contract claim exceed the scope of the turnover proceeding.  Gravel Express's breach of contract claim was not "matured, payable on demand, or payable on order" as required by 11 USC Sec. 542(b).  A turnover proceeding is an action to obtain property of the debtor, not property owed to the debtor.  The USCA rejected Gravel Express's contention that the bankruptcy court's ruling must be reversed because the court did not make written findings.  The lack of such written findings is not fatal;  if the record clearly indicates the reasons for the denial, as it did here, there is no abuse of discretion.  The USCA thus concluded that the district court erred in finding that the bankruptcy court abused its discretion in denying the motion to amend.  It reversed the district court on this issues.  Second, the USCA noted that the bankruptcy court's decision to allow recoupment is permissive and reviewed for an abuse of discretion.  Because Gravel Express does not dispute that Meadow Valley has proven the underlying factors to support the defense of recoupment, the USCA limited its review to the question of whether Meadow Valley's alleged bad faith negates its recoupment defense.  The USCA concluded that the record amply supported the findings of the examiners, adopted by the bankruptcy court, that there was insufficient evidence that Meadow Valley had acted in bad faith;  no proper claims were presented to Meadow Valley that Meadow Valley failed to submit to ADOT.  The district court's ruling that the bankruptcy court abused its discretion in allowing recoupment was driven by the district court's conclusion that the bankruptcy court should have permitted the complaint to be amended to add a claim for breach of contract.  In the district court's view, the amendment would have opened the door for additional evidence of bad faith that could have weakened the recoupment claim.  Because the USCA concluded that the denial of the amendment was within the bankruptcy court's discretion, the USCA rejected the district court's conclusion regarding re-coupment.  Gravel Express had ample opportunity to present evidence of bad faith to controvert Meadow Valley's claim or recoupment, and it failed in that endeavor.  The USCA thus con-cluded that the bankruptcy court did not abuse its discretion in allowing recoupment.  The USCA reversed the decision of the district court on this issue.  Third, the examiners did not exceed their authority in making a finding that Meadow Valley had not acted in bad faith.  The bankruptcy court employed the examin-ers to "investigate the factual and legal basis of Gravel Express's turnover action and the defenses thereto."  In order properly evaluate the recoupment defense, the examiners had to consider whether Meadow Valley acted in bad faith.  They thus did not exceed the scope of their authority in ruling on that issue.  Here, again, the district court's decision that the examiners exceeded their authority stemmed in large part form the district court's view that, with the complaint amended, there would have been additional evidence of bad faith to consider.  However, this reasoning was incorrect as the bankruptcy court did not err in de-nying the amendment.  For this reason, and because the examin-ers did not otherwise exceed their authority, the USCA thus reversed the decision of the district court on this issue.  Fourth, the bankruptcy court held that Gravel Express was not excused from performance of its subcontract on the ground of commercial impracticability.  The district court affirmed that ruling.  The USCA found that the record supports the examiners' finding that (1) the additional work performed by Gravel Express was not more difficult than the prior work;  there was just more work to do;  (2) the additional work involved the same effort and equipment as contemplated by the parties in the original contract;  (3) the Prime Contract provided a means of payment for additional units of "borrow" where the estimated quantities were inaccurate, and Gravel Express actually was paid substantial sums through this process; and (4) Gravel Express's allegations that it's costs doubled were based on inaccurate calculations.  These findings, which were adopted by the bankruptcy court, were not clearly erroneous.  The USCA agreed with the bankruptcy and district courts that, in light of these findings, it would not have been "objectively unreasonable" for Gravel Express to complete the ADOT job.  Accordingly, Gravel Express has not made the requisite showing to establish commercial impracticability.  The USCA thus affirmed the district court on this issue.

12)  BANKRUPTCY / STANDING:  In re Archon, 99-15364 (9th Cir. June 7, 2000) (unpublished).  Tashima and Graber, Circuit Judges, and Brewster, District Judge.
           The District Court for Arizona, Judge Sedwick presiding, affirmed the bankruptcy court's summary judgment in favor of the Patels in Archon's action for waste.  The bankruptcy court held that Archon lacked standing to maintain an action for waste.
              The USCA reversed.  To establish standing, a plaintiff must show an injury in fact, a causal connection between the injury and the conduct complained of, and the likelihood that the injury will be redressed by a favorable decision.  Under Arizona law, there are three elements essential to a cause of action for waste: (1) there must be an act constituting waste; (2) the act must be done by one legally in possession; and (3) the act must be to the prejudice of the estate or interest of another.  The bankruptcy court concluded that Archon lacked standing to bring his action because he did not have a sufficient ownership interest in the property during the time the alleged waste occurred and at the time he filed suit.  In order for Archon to have standing to bring his waste cause of action, however, the question is only whether he held an interest at the time the alleged waste oc-urred and thus suffered an injury in fact that can be redressed, not whether he held an interest in the property at the time he filed his complaint.  The bankruptcy court found that Archon did not hold an interest in the property during the alleged waste period.  Arizona law, however, expressly gives the beneficiary of a deed of trust the right to sue for waste.  Archon was the beneficiary of a deed of trust after selling the property to the Patels in June 1991, until the time he released the deeds of trust in November 1993, in conjunction with granting the deed of trust in favor of the Oswalds.  Furthermore, contrary to the Patels' argument, the rescission of the sale pursuant to the parties' settlement agreement, did not "necessarily void" the deeds of trust that the Patels had given in favor of Luciano and Archon.  "Under true rescission, the plaintiff returns to the defendant the subject of the transaction, plus any other benefits received under the contract, and the defendant returns to the plaintiff the consideration fur-nished, plus interest."  Ambassador Hotel Co. v. Wei-Chuan Inv., 189 F.3d 1017, 1031 (9th Cir. 1999).  The parties thus must affirmatively undo the transaction by returning to each other the benefit that each received under the contract, and Archon did not release the deed of trust until his dealings with the Oswalds.  Unfortunately for the Patels, who still have not been repaid, Archon did not hold a sufficient interest in the property during the alleged waste period to bring a cause of action for waste.  The USCA thus reversed the decision of the district court and remanded the action with directions to remand the action to the bankruptcy court for further proceedings consistent with the USCA's disposition.

13)  BANKRUPTCY / JURISDICTION:  In re Fordjour, 99-55160 (9th Cir. June 7, 2000) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges
           Arizona state prisoner Fordjour appealed the Bank-ruptcy Appellate Panel's dismissal of his appeal from the bankruptcy court's dismissal of his Chapter 13 action.  The USCA affirmed upon finding jurisdiction under 28 USC Sec. 158(d), reviewing the BAP's legal conclusions de novo and factual determinations for clear error.  It held that the BAP properly dismissed Fordjour's appeal for lack of subject matter jurisdiction because Fordjour's notice of appeal was not timely filed.

14)  INSURANCE:  California Korea Bank v. Virginia Surety Company, 98-56778, 98-56806 (9th Cir. June 1, 2000) (unpublished).  Fernandez and Wardlaw, Circuit Judges, and Weiner, District Judge.
           At issue in this case was the interpretation and application of two insurance contracts, or Bankers Special Bonds, between California Korea Bank (CKB) and the Virginia Surety Company.  In case 98-56778, CKB appealed from a summary judgment and partial denial of a motion for reconsideration entered by the District Court for the Central District of California, Judge Pregerson, presiding.  In case 98-56806, Virginia Surety cross-appealed from the district court's partial grant of the motion for reconsideration.
            The USCA affirmed in part, and reversed and remanded in part.  CKB suffered a loss as a result of the sum paid to Yu in settlement of her lawsuit relating to the CKB's handling of her certificates of deposits.  Because CKB's claim is a third-party insurance claim, the underlying events that ripen into a legal judgment are the "loss."  CKB suffered an adverse legal judgment and a subsequent settlement, and the underlying events are the loss in the relevant sense.  The loss that CKB suffered, however, was not covered by the provisions of the Bonds that CKB invokes—the on-premises coverage covering loss of property resulting directly form false pretenses committed by a person present in an office or on the premises of the insured, and the forgery coverage covering loss resulting directly from forgery or the alteration of, on or in any check.  Although Yu's husband may have committed false pretenses on the premises of the bank, and may have wrongly altered the amount of a check and withdraw funds from Yu's account, these actions were not the events that culminated in Yu's judgment against CKB and the subsequent settlement.  The California Court of Appeal, which described her suit as "a breach of contract action for recovery of a deposit," concluded that as a matter of law, her losses were proximately caused by the CKB as a result of the unauthorized transfer and failure to return her funds.  The judgment was in the amount of the funds due from the matured CDs, plus interest, less the amount Yu had authorized to be expended, and less an offset for funds that she received.  These are contract damages, not damages stemming from Yu's fraud.  In the district court, CKB's complaint sought only reimbursement of the settlement amount, plus costs and fees—not payment for some other covered loss caused by Yu's behavior.  The USCA thus held that the judgment against CKB and the subsequent settlement directly resulting from, and were proximately caused by, CKB's breach of contract.  It noted that, as is the general practice with bankers' bonds, nothing in the Bankers Special Bonds provides insurance coverage for CKB's breach of contract.  The USCA thus upheld the summary judgment against CKB on the claims related to Yu's CDs. 
            The USCA reversed and remanded the district court's judgment on CKB's claim for reimbursement of costs and attor-neys' fees expended in defense of Yu's separate claim relating to CKB's acceptance of a check with a forged endorsement.  Contrary to the holding of the district court, the contractual term "valid and collectible loss" in Coverage 18 corresponds to "the judgment resulting from the third party claim."  That is, "valid and collectible loss" is the amount established by judgment on covered claims, without consideration of any limits or deductibles.  The district court erred in construing "valid and collectible loss" to mean potential covered loss, capped by the contractual limit of liability, and reduced by the amount of the deductible.  However, the USCA affirmed the district court's holding on the motion for reconsideration that the "total amount" and "costs and fees" terms of Coverage 18 were not restricted to liability and expenditures on claims potentially covered by the Bond but instead embrace the total amount and costs and fees expended on all claims in Yu's suit.  In light of its holding on "valid and collectible loss," the district court's interpretation is the most sensible understanding of Coverage 18's language and purpose because it results in the reimbursement of an approximation of the costs and fees corresponding to the covered claims.  To the extent that the provisions are ambiguous, the USCA resolved the ambiguity to protect the reasonable expectations of the insured, as did the district court.

15)  MARITIME LAW:  Dizard v. Voshte Lynn, O/N 566455, 98-35805 (9th Cir. June 14, 2000) (unpublished).  Leavy, Rymer, and T.G. Nelson, Circuit Judges.
             Following a bench trial, NorQuest Seafoods appealed the judgment of the District Court for the Western District of Washington, Judge Zilly presiding, in Dizard's action under the Jones Act and general maritime law for damages for injuries he suffered as a result of an allision between the fishing vessel upon which he was working and a vessel owned by NorQuest.
             The USCA affirmed.  NorQuest raised a variety of challenges to the district court's findings and conclusions, each of which the USCA rejected.  It found that the district court did not clearly err in finding that NorQuest's negligence proximately caused Dizard's injuries.  Dizard's testimony was not so unreli-able that it should not have been credited by the district court.  Moreover, the district court's findings were not based entirely on Dizard's testimony.  As indicated in the Amended Pretrial Order, Dizard's claim against NorQuest was tried on a negligence theory.  The district court thus applied the correct legal standard.  The district court's use of Dizard's proposed findings and con-clusions in formulating its findings did not trigger greater appellate scrutiny, particularly given the district court's active involvement in the trial.  Finally, the district court's findings were adequate for appellate review.  Tlingit Ocean Fisheries asserted in its answering brief that NorQuest waived the argument that Dizard's injuries were caused by employment related activities and not by the allision, but the USCA found no merit in that assertion.  The Amended Pretrial Order stated that NorQuest's affirmative defenses at trial included the assertion that Dizard was not injured in the accident and that any injury he may have had was pre-existing.

16)  FORECLOSURE / JURISDICTION:  USA v. Hanson, 98-35801 (9th Cir. June 2, 2000) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges.
            The District Court for Montana, Judge Molloy presiding, entered summary judgment for the United States in its foreclosure action against Hanson.  The USCA affirmed, finding no merit in Hanson's contention that the district court lacked jurisdiction to enter a final judgment, as his prematurely filed notice of appeal did not become effective until after the entry of the final judgment.

17)  FORECLOSURE / JURISDICTION:  USA v. Hanson, 98-35050 (9th Cir. June 2, 2000) (unpublished).  Pregerson, Fernandez, and Wardlaw, Circuit Judges.
            The District Court for Montana, Judge Molloy presiding, entered summary judgment for the United States in its foreclosure action against Hanson.  The USCA affirmed, finding no merit in Hanson's contention that the district court erred in granting summary judgment to the United States because there were available administrative proceedings which had not been exhausted.  Hanson failed to raise an issue of material fact as to whether the United States failed to comply with any restrictions on initiating a foreclosure proceeding prior to filing this foreclosure action.  Hanson's claim that contacts between a US Attorney and the National Appeals Division in violation of a federal regulation deprived him of due process lacked merit as the violation did not deprive Hanson of any procedural safeguard or inflict any unjust discrimination.  Hanson's contention that he was deprived of due process because his appeal was terminated without a hearing was without merit as there was no adverse decision to appeal.  Once the matter was referred to the Attorney General, the Secretary of Agriculture lost jurisdiction to make any determination.  Finally, the jurisdictional issues raised in regard to Hanson's motion to strike and referred to the USCA were duplicative of issues raised in this appeal.

18)  PROPERTY / ABSTENTION:  Bullock v. Town of Woodside, 99-15444 (9th Cir. June 7, 2000) (unpublished).  Wood, Kleinfeld, and Graber, Circuit Judges.
            The plaintiff and his wife were embroiled in a long-running dispute with the Town of Woodside over their attempt to build a house on property owned by the plaintiff's wife.  The plaintiff brought this action in the District Court for the Northern District of California, seeking declaratory and injunctive relief, legal fees, and damages under state civil rights law and 42 USC Sec. 1983.  District Judge Jenkins dismissed the action on Younger abstention grounds because there was a pending state-court action between the parties.  The plaintiff appealed.
             The USCA affirmed the district court's dismissal of the plaintiffs third and fourth claims on Younger abstention grounds, but reversed and remanded the dismissal of his first and second claims to the extent those claims relate to acts occurring after January 14, 1997 and seek money damages.  First, the USCA noted that Younger abstention is appropriate when there is an ongoing state proceeding that implicates important state interests and the plaintiff has an adequate opportunity in that proceeding to raise federal claims.  The USCA found these requirements to have been satisfied.  The ongoing state proceeding implicated the important state interest of enforcement of land-use laws and anti-nuisance regulations.  Further, the plaintiff had an adequate opportunity to raise federal claims and did so, alleging in his state-court "cross-complaint" that Woodside had denied him his federal constitutional rights to due process and equal protection.  Second, USCA found that the district court had properly dismissed the plaintiff's third and fourth claims under Younger.  The plaintiff's third claim sought damages for violations of California civil rights law.  That claim should have been raised in the state-court proceeding.  It arose from the same nexus of facts that the plaintiff laid out in exhaustive detail in his state-court cross-complaint, and interests of comity and federalism dictate that abstention was appropriate.  The plaintiff's fourth claim asks the district court to declare unconstitutional certain Woodside ordinances and code sections.  However, the USCA noted that claim too should have been raised in the state-court proceeding and, indeed, the plaintiff did raise the issue of the constitutionality of the code sections in question in state court.  It thus would be inappropriate and disruptive of the on-going state-court action for the district court to rule on the constitutionality of the ordinance and code section.  However, the district court should not have dismissed the plaintiff's first and second claims insofar as they sought money damages for an alleged deprivation of civil rights under 42 USC Sec. 1983 and conspiracy under 42 USC Sec. 1985.  Younger abstention from claims for money damages under Sec. 1983 is "disfavored" in the Ninth Circuit.  Mann v. Jett, 781 F.2d 1448 (9th Cir. 1996), affirmed a district court's decision to abstain under Younger when the ongoing state action was a criminal prosecution, the plaintiff's claim could have been raised in that proceeding, and the federal action would have been disruptive of the state criminal prosecution.  But the court has suggested that Mann was "partially repudiated" in Lebbos v. Judges of Superior Court, 883 F.2d 810 (9th Cir. 1989), and, further, that it is applicable only when the state proceeding is a criminal prosecution.  The USCA noted that the Circuit has not approved Younger abstention in an action for money damages under Sec. 1983 when, as is the case here, the ongoing state proceeding is not a criminal prosecution.  Following clear Circuit precedent, the USCA thus concluded that the district court should not have dismissed the plaintiff's claims for money damages under Secs. 1983 and 1985 on Younger abstention grounds.
            Woodside also moved to dismiss on the ground that the plaintiff's federal civil rights claims were untimely.  The USCA applied California's one-year statute of limitations to those claims.  The plaintiff filed his action in district court on January 14, 1998, but most of the factual allegations in the complaint described allegedly unlawful acts that occurred between 1985 and 1992.  The district court refused to dismiss on statute of limitations grounds, however, concluding that the plaintiff's had adequately alleged a "continuing" violation of his constitutional rights culminating in Woodside's 1997 code enforcement action.  That code enforcement action was dismissed pursuant to the parties' stipulation on July 26, 1999.  As part of that dismissal, the plaintiff agreed to dismiss all his federal claims regarding that action and the allegedly improper code enforcement action on which the action was based.  Accordingly, the plaintiff's allegations related to that action—which allegations were the sole basis for the district court's statute-of-limitations ruling—were not part of this appeal.  The plaintiff's Sec. 1983 complaint alleged one unconstitutional act within one year of the filing of the complaint:  the denial, in February 1997, of his application for a variance.  As to that denial, the plaintiff's Sec. 1983 claim indisputably is timely.  The plaintiff also sought to include in his Sec. 1983 action a number of other acts, all of which occurred outside the limitation period, on the ground that they represent parts of a "continuing" violation.  To avoid dismissal on that ground, the plaintiff must state facts sufficient to support a determination that the alleged discriminatory acts are related closely enough to constitute a continuing violation, and that one or more of the acts fall within the limitation period.  The USCA found that here the plaintiff had not stated facts sufficient to support such a determination.  His allegation of a continuing violation of his rights is wholly conclusory and unsupported by specific facts.  It is true that all the actions of which the plaintiffs complains relate to his and his wife's attempts to develop a single piece of property;  however, his complaint appears simply to describe a sporadic series of independent land-use decisions—code changes, zoning changes, permit denials, and the like—spanning a 12-year period.  The plaintiff alleged a series of acts, but provided no reason, other than his bare allegations, to view those acts as a single continuing violation.  The one-year statute of limitations barred the plaintiffs Sec. 1983 claims insofar as they related to conduct that occurred before January 14, 1997

19)  STATUTES OF LIMITATIONS:  Johnson v. Florin Meadows Apartment Complex of Sacramento California, 99-17576 (9th Cir. June 28, 2000) (unpublished).  Choy, Wallace, and Farris, Circuit Judges.
             The District Court for the Eastern District of California, Magistrate Drozd presiding, entered summary judgment for Florin Meadows Apartment Complex in Johnson's action alleging violations of her civil rights, the Securities Exchange Act, and California state law.  The USCA affirmed.  Johnson's action arose from events that occurred in 1985, but she did not file her complaint until 1998.  As district court explained, all of John-son's claims were barred by the applicable statutes of limitation or otherwise without merit.

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