2)  INTELLECTUAL PROPERTY:  Three Boys Music Corporation v. Bolton, 97-55150 (9th Cir. May 9, 2000).  In a copyright infringement action involving alleged "subconscious copying" of a popular song from the mid-1960s, "access" to the protected work may be shown by evidence of its wide dissemination, and the defendant's admiration of and familiarity with the plaintiff's music and its genre.  B. Fletcher, D.W. Nelson (author), and Brunetti, Circuit Judges.  R. Sugarman of New York, NY, and Russell Frackman of Los Angeles, CA, for the defendants-appellants;  P. O'Donnell and J. McNicholas of Los Angeles, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

3)  INTELLECTUAL PROPERTY:  Sony Computer Entertainment America, Inc. v. Bleem, LLC, 99-17137 (9th Cir. May 4, 2000).  The unauthorized use of a "screen shot" (a frozen image from a personal video game) for comparative advertising purposes was "fair use" under the Copyright Act.  O'Scannlain (author), Leavy, and Rymer, Circuit Judges.  J. Hangartner of Del Mar, CA, for the defendant-appellant;  J. Gilliland and S. Baker of San Francisco, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

4)  SECURITIES:  In re Mego Financial Corp. Securities Litigation, 99-15361 (9th Cir. May 22, 2000).  In reviewing a proposed settlement in a securities-fraud class action filed before the effective date of the Private Securities Litigation Reform Act, the district court did not abuse its discretion in approving a plan that determined damages by a method similar to that Congress endorsed in the Act.  Sneed (author), Schroeder, and Tashima, Circuit Judges.  M. King of Northfield, IL, for the plaintiff-appellant;  P. Avery of New York, NY, for the plaintiffs-appellees;  A. Houston of New York, NY, and D. Pickett of San Francisco, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

5)  CONTRACTS / FORUM SELECTION:  Monegro v. Rosa, 98-16846 (9th Cir. May 3, 2000).  An action for violations of state and federal law including sexual harassment, sexual battery, wrongful termination, fraud and conversion, was improperly dismissed on the ground of forum non conveniens in favor of litigation in the Dominican Republic, where the underlying contract contemplated performance in the United States, there was no impediment to compulsory appearance of the defendants in the U.S. federal court, and it appeared that a principal defendant might not appear in foreign proceedings.  Bright, Pregerson, and W. Fletcher (author), Circuit Judges.  D. Becht of San Francisco, CA, for the plaintiffs-appellants;  N. Pritikin of San Francisco, CA, for the defendants-appellees  (Download the full text at www.ce9.uscourts.gov/) 

6)  CONTRACTS / BRIBES / JURISDICTION: Adler v. The Federal Republic of Nigeria, 98-55456 (9th Cir. May 17, 2000).  In an action arising from an illegal contract between the plaintiff and various Nigerian individuals, including at least one government official, to convert Nigerian government funds to their personal use, federal jurisdiction existed in the plaintiff's action to recover bribes he paid to Nigerian officials in furtherance of the scheme, but the plaintiff's unclean hands barred his recovery; dissenting, Judge Noonan thought that federal jurisdiction could not rest on the foundation of the plaintiff's contention that he had engaged in a criminal conspiracy with officials of the Nigerian government;  as the contract was criminal in nature, there was no commercial activity and only commercial activity by Nigeria provides an exception to the immunity of Nigeria from the jurisdiction of U.S. courts.  Pregerson (author), Noonan (dissenting), and O'Scannlain, Circuit Judges.  R. McCarthy of San Diego, CA, for the plaintiffs-appellants-cross-appellants;  D. Fromm of New York, NY, for the defendants-appellees-cross-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

7)  INTERSTATE COMMERCE ACT:  C.A.R. Transportation Brokerage Company v.  Darden Restaurants, Inc., 98-56122 (9th Cir. May 22, 2000).  A subcontracting motor carrier's driver can allocate liability for freight charges under the Interstate Commerce Act by signing a "waiver of claim by sub-contractor" form presented by the consignor.  Pregerson, Magill (author), and Thomas, Circuit Judges.  W. Sarrus of Tustin, CA, for the plaintiff-appellant;  L. Cohen of Santa Monica, CA, for the defendants-appellees.(Download the full text at www.ce9.uscourts.gov/) 

8)  CONTRACTS / GOODS LOST IN TRANSIT: Neptune Orient Lines, Ltd. v. Burlington Northern & Santa Fe Rail-way Co., 98-17387 (9th Cir. May 24, 2000).  When the owner of lost or stolen cargo is unable to replace its goods, "lost markup," measured by the market price at the destination, is part of the actual loss for which the carrier is liable.  Goodwin (author), Brunetti, and Thomas, Circuit Judges.  G. McAuley of San Francisco, CA, for the defendant-appellant;  E. Danoff of San Francisco, CA, for the plaintiff-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

9) CONTRACTS:  Cable & Computer Technology, Inc. v. Lockheed Sanders, Inc., 99-55004 (9th Cir. May 31, 2000).  Evidence of an oral contract between subcontractors to team together to bid a subcontract raised a material issue of fact and entitled the claimant to go to trial on its breach of contract claim;  Judge Canby thought that no contract had been entered between the plaintiff and the defendant, but "reluctantly" dissented from the majority's decision that the plaintiff had a viable claim for breach of contract, or for other claims related to that claim—reluctantly as there was evidence, disputed by the defendant, from which a trier of fact could conclude that the defendant did not deal in good faith with the plaintiff.  Canby (dissenting in part), Noonan (author), and W. Fletcher, Circuit Judges.  E. Liebeler of Los Angeles, CA, for the plaintiff-appellant;  J. Quinn of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

10)  FRANCHISE LAW:  Jones v. GNC Franchising, Inc., 99-55633 (9th Cir. May 3, 2000).  Under Cal. Bus. And Prof. Code Sec. 20040.5, a forum-selection clause in a franchise agreement that required adjudication of disputes between franchisor and franchisee in another state violated strong public policy against the enforcement of such provisions and was thus unenforceable.  Politz (author), Reinhardt, and Hawkins, Circuit Judges.  P. Kramer of Los Angeles, CA, for the plaintiff-appellee;  J. Solish of Los Angeles, CA, for the defendant-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY:  In re Hashim, 98-17128 (9th Cir. May 30, 2000).  The bankruptcy court erred in denying comity to a British court's unliquidated award of court costs and attorneys' fees for the stated reason that the award was "repugnant to the principles of American jurisprudence."  B. Fletcher, Canby, and O'Scannlain (author), Circuit Judges.  D. Gaffney of Phoenix, AZ, for the appellant;  A. Meda of Phoenix, AZ, for the appellees. (Download the full text at www.ce9.uscourts.gov/) 

12)  TAXATION:  Fayeghi v. CIR, 98-71375 (9th Cir. May. 3, 2000).  The Tax Court did not have authority to enjoin the IRS from collecting taxes that the petitioners had self-reported on their individual tax returns based on income that was subject of a deficiency proceeding against a corporate taxpayer in which the individuals had an ownership interest.  Tashima and Graber (author), Circuit Judges, and Stotler, District Judge.  J. Selik of Solana Beach, CA, for the petitioner-appellants;  R. Hutter of Washington, DC, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 

13)  TAXATION:  Bresson v. CIR, 98-71377 (9th Cir. May 31 2000).  The Tax Court properly held the petitioner liable under 26 USC Sec. 6901 notwithstanding the fact that the IRS had issued the petitioner its notice of deficiency after the limitations period had lapsed for a cause of action under the California Uniform Fraudulent Transfer Act, Cal. Civ. Code Secs. 3439.01-12.  Tashima and Graber (author), Circuit Judges, and Stotler, District Judge.  W. Horwich of Beverly Hills, CA, for the petitioner;  J. Dudeck of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

14)  TAXATION:  Tedori v. USA, 98-56049 (9th Cir. May 1, 2000).  Under 26 USC Sec. 163(h), the sole shareholders of an "Interest Charge Domestic International Sales Corporation" ("DISC") were not entitled to claim as a deduction on their joint federal income tax returns the interest they paid to the United States on the deferred amounts of their DISC-related tax liability as either a business expense or investment interest.  Pregerson and Wardlaw, Circuit Judges, and Shadur (author), District Judge.  D. Thomas of Houston, TX, for the plaintiffs-appellants;  J. Cohen of Washington, DC, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

15)  INSURANCE:  The Vons Companies v. Federal Insurance Company, 98-56645 (9th Cir. May 9, 2000).  In the ab-sence of a third-party claim provision, a company's insurance coverage for "direct losses … caused by any employee dishonesty" did not extend to losses resulting from vicarious liability for loses suffered by others arising from it employee's tortious conduct.  Reinhardt and O'Scannlain, Circuit Judges, and Schwarzer (author), District Judge.  M. Doyen of Los Angeles, CA, for the plaintiff-appellant;  D. DiBiase of Los Angeles CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

16)  TORTS:  Brady v. USA, 99-15135 (9th Cir. May 3, 2000).  Under the Federal Tort Claims Act ("FTCA"), a complaint that has been dismissed for failure to file a prior administrative claim does not serve as the predicate administrative claim required by 28 USC Sec. 2675(a) in a subsequent FTCA action based on the same facts, where the plaintiff has not requested that the involved agency treat it as such.  Tashima and Graber (author), Circuit Judges, and Stotler, District Judge.  D. Loreman of Elko, NV, for the plaintiff-appellant;  AUSA S. Smith of Reno, NV, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

17)  AMERICANS WITH DISABILITIES ACT: Echazabal v. Chevron USA, 98-55551 (9th Cir. May 23, 2000).  The "direct threat" defense available to employers under the Americans with Disabilities Act does not also apply to employees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace.  Bright, Reinhardt (author), and Trott, Circuit Judges.  L. Minsky of Long Beach, CA, for the plaintiff-appellant;  J. Kardassakis of Los Angeles, CA, for the for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

18)  AMERICANS WITH DISABILITIES ACT: Jankey v. Twentieth Century Fox, 98-56585 (9th Cir. May 16, 2000).  Facilities that fall within one of the categories of public accommodation specified in the Americans with Disabilities Act are exempt from coverage under the statute if they are not in fact open to the public.  Reinhardt and O'Scannlain, Circuit Judges, and Schwarzer (author), District Judge.  T. Frankovich of San Francisco, CA, for the plaintiff-appellant;  D. Raizman of Santa Monica, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

19)  ADMINISTRATIVE LAW / ATTORNEYS' FEES:Mendenhall v. NTSB, 98-70211 (9th Cir. May 22, 2000).  Under Sec. 504 of the Equal Access of Justice Act, a federal agency's bad faith in maintaining a litigation position was not an adequate basis for awarding "reasonable market-rate" attorneys' fees to opposing counsel;  the fees should have been limited by the statutory cap in force at the time to $75 per hour.  Reinhardt, Thompson, and O'Scannlain (author), Circuit Judges.  J. Kuchta of Washington, DC, for the petitioner.  F. Hunger of Washing-ton, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

20)  ADMINISTRATIVE LAW:  USA v. Snoring Relief Labs, Inc., 99-15190 (9th Cir. May 2, 2000).  In reviewing a decision by the Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act, the district court properly applied the "arbitrary and capricious" standard.  Hug, D.W. Nelson (author), and McKeown, Circuit Judges.  B. Donato of Irvine, CA, for the defendant-counter-claimant-appellant;  D. Autor of Washington, DC, for the plaintiff-counter-defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

21)  FIRST AMENDMENT:  (WIN) Washington Initiatives Now v. Ripple, 98-35412 (9th Cir. May 25, 2000).  A state statute requiring the disclosure of the names and addresses of persons paid to collect signatures on initiative petitions "to the people," and the amounts paid to them, is unconstitutional for the reason that it chills political speech and does not significantly advance any substantial state interest.  Reinhardt, Thompson (author), and T.G. Nelson, Circuit Judges.  S. Newman of Olympia, WA, for the plaintiff-appellant;  J. Wilkinson of Olympia, WA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

22)  CIVIL PROCEDURE:  Han v. Stanford University, 99-15218 (9th Cir. May 1, 2000).  Under Fed. R. App. Proc. 28(a)(7) and Ninth Circuit Rule 28-2.8, a civil appeal may be dismissed when the appellant's opening and reply briefs fail to include citations to the record after the deficiency has been brought to the attention of appellate counsel.  Tashima and Graber (author), and Stotler, Circuit Judges.  R. Fernando of San Jose, CA, for the plaintiff-appellant;  D. Crowley of San Fran-cisco, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

23)  FEDERAL ABSTENTION:  Montclair Parkowners Association v. City of Montclair, 99-55083 (9th Cir. May 8, 2000).  Where the state courts had concluded their consideration of the plaintiff's analogous state law claims, the abstention doctrine of Younger v. Harris, 401 US 37 (1971), did not require the dismissal of the plaintiff's parallel federal lawsuit brought to vindicate rights under the Takings Clause of the federal Constitution.  O'Scannlain (author), Fernandez, and T.G. Nelson, Circuit Judges.  J. Ramirez of Sacramento, CA, for the plaintiffs-appellants;  H. Heater of San Diego, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

24)  EVIDENCE / REMOVAL:  Fairbank v.  Wunderman Cato Johnson, Inc., 98-17298 (9th Cir. The memorandum of April 17, 2000 has been redesignated an opinion dated May 5, 2000).  Differences between California and federal standards for shifting the burden of producing evidence on summary judgment permits a federal court to reconsider a California court's summary judgment ruling following removal.  Goodwin (author), Brunetti, and Thomas, Circuit Judges.  R. Green of San Francisco, CA, for the plaintiff-appellant;  M. Wolfram of Los An-geles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

25)  PUBLIC LANDS:  Alaska v. USA, 98-35310 (9th Cir. May 25, 2000).  Title to the bed of Alaska's Kukpowruk River in northern Alaska did not pass from the federal government to Alaska when it became a state in 1959;  similarly, the federal government's change in the status of the retained land after statehood did not cause title to the riverbed to pass to the state.  Canby (author) and Graber, Circuit Judges, and George, District Judge.  J. Goldstein of Washington, DC, for the defendant-appellant;  J. Grace of Anchorage, AK, for the plaintiff-appellee;  D. Crosby of Juneau, AK, for the intervenor-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

26)  EMINENT DOMAIN:  USA v. Alameda Gateway Ltd., 99-15642 (9th Cir. May 26, 2000).  Under Sec. 10 of the Rivers and Harbors Appropriation Act of 1899, the federal government is entitled to recover the cost of removing private improvements that obstruct navigable waters when the owner fails to remove them.  Goodwin, Brunetti (author), and Thomas, Circuit Judges.  D. Hastert of Honolulu, HI, for the defendant-appellant;  J. Stahr of Washington, DC, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

27)  ENVIRONMENTAL LAW / CERCLA:  ARCO Environmental remediation, L.L.C. v. Montana Dept. of Health and Environmental Quality, 99-36033 (9th Cir. May 24, 2000).  For purposes of removal jurisdiction, a state-court action seeking access to public documents and proceedings relating to "Superfund" cleanup does not arise under, and is not preempted by, the Comprehensive Environmental Response, Compensation, and Liability Act;  the USCA thus remanded the case to the federal district court with instructions to remand it to Montana state court.  Pregerson (author) and D.W. Nelson, Circuit Judges, and B. Moskowitz, District Judge.  K. Gray of Billings, MT, for the plaintiff-appellant;  L. Jones of Washington, DC, for the federal appellee;  T. Baker of Helena, MT, for the Montana Dept. of Environmental Quality.  (Download the full text at www.ce9.uscourts.gov/) 

28)  ENVIRONMENTAL LAW:  Akiak Native Community v. U.S. Postal Service, 98-35466 (9th Cir. May 25, 2000).  When a government project seeks to improve the reliability and efficiency of mail service by using an experimental means of transportation (hovercrafts), an environmental assessment may reject alternative modes of transportation (fixed-wing aircraft) whose inefficiencies had engendered the project.  Canby (author) and Graber, Circuit Judges, and George, District Judge.  R. Randall of Anchorage, AK, for the plaintiffs-appellants;  J. Pepin of Washington, DC, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

29)  NATIVE AMERICAN LAW:  USA v. Idaho, 98-35831 (9th Cir. May 2, 2000).  A course of action by Congress before and after the State of Idaho joined the Union was sufficient to defeat the State's title to submerged lands lying within an Indian reservation.  Reavley, Reinhardt, and McKeown (author), Circuit Judges.  S. Strack of Boise, ID, for the State of Idaho;  H. Meshorer of Washington, DC, for the USA;  R. Givens of Coeur d'Alene, ID, for the intervenor Coeur d'Alene Tribe of Idaho.  (Download the full text at www.ce9.uscourts.gov/) 

30)  IMMIGRATION:  Rostomian v. INS, 98-70564 (9th Cir. May 3, 2000).  An act of random violence during a period of significant strife in an asylum applicant's homeland were insuffi-cient to establish a well-founded fear of persecution;  dissenting, Judge Reinhardt noted that an asylum petitioner's testimony about past persecution can be sufficient even in the absence of exacting detail regarding the identity of his assailants, and that deplorably in this case, the immigration judge actually prevented the petitioner from providing such detail.  Reinhardt (dissenting) and O'Scannlain, Circuit Judges, and Schwarzer (author), District Judge.  J. Rose of Los Angeles, CA, for the petitioners;  J. McAdams of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

31)  IMMIGRATION:  Sulit v. Schiltgen, 98-15280 (9th Cir. May 17, 2000).  Habeas corpus relief is unavailable where, although the INS violated 8 USC Sec. 1256 by failing to conduct a rescission hearing before seizing an alien's green card and issuing a deportation warrant, the alien had no right to a green card, and was subject to a final deportation order at the time the INS acted.  B. Fletcher, Hawkins, and Thomas (author), Circuit Judges.  B. Vega of San Francisco, CA, for the petitioners;  H. Mullane of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

32)  IMMIGRATION:  Avetova-Elisseva v. INS, 98-70547 (9th Cir. May 15, 2000).  In asylum proceedings, a well-founded fear of persecution may be established by evidence of a "pattern or practice" of general ethnicity-based harassment in the petitioner's homeland and the homeland government's failure to cope with the situation, coupled with personal experiences that alone do not meet the legal standard for past persecution;  dissenting, Judge Wardlaw thought that the record evidence did not compel the conclusion that there is a pattern or practice of persecution against Armenians in Russia and that substantial evidence supported the BIA's finding that there does not exist in Russia a pattern or practice of persecution of persons on the basis of Armenian ethnicity.  Pregerson and Wardlaw (dissenting), Circuit Judges, and Shadur (author), District Judge.  S. Johnson of Provo, UT, for the petitioner;  M. Golding of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

33)  IMMIGRATION / ASYLUM:  Maini v. INS, 98-70894 (9th Cir. May 19, 2000).  For purposes of asylum and withholding of deportation, the Communist Party Marxist of India, a religiously diverse group in the alien's homeland which persecutes people for marrying outside their religion, commits persecution on account of the victim's religion.  Pregerson, Ferguson (author), and Wardlaw, Circuit Judges.  G. Sarin of Los Angeles, CA, for the petitioners;  J. Cunningham of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

34)  IMMIGRATION:  Beltran-Tirado v. INS, 98-70783 (9th Cir. May 31, 2000).  The petitioners crime of conviction (using a false Social Security number on an employment verification form) did not establish "moral turpitude" within the meaning of the Immigration and Nationality Act, and the BIA's legal error in applying the Act infected its exercise of discretion.  Canby (author), Noonan, and W. Fletcher, Circuit Judges.  J. Montag of San Diego, CA, for the petitioner;  N. Reyna of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

35)  IMMIGRATION / ASYLUM:  Rivera-Moreno v. INS, 98-71463 (9th Cir. May 23, 2000).  For purposes of an asylum applicant's claim of persecution due to political opinion, retaliation by homeland insurgents for refusing to provide medical services to their wounded was insufficient to establish a qualifying political stance of "hazardous neutrality." Concurring in the result, Judge Hawkins thought the petitioner failed to estab-lish a causal connection between her expression of neutrality and her forced or attempted recruitment by the insurgents.  Aldisert (author), O'Scannlain, and Hawkins (concurring), Circuit Judges.  R. Leardo of San Francisco, CA, for the petitioners;  J. Hunolt of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

36)  IMMIGRATION / INEFFECTIVE ASSISTANCE:Ontiveros-Lopez v. INS, 97-70752 (9th Cir. May 24, 2000).  The BIA abused its discretion in denying a motion to reopen deportation proceedings based on ineffective assistance of counsel without considering substitute counsel's explanation for why documents necessary under the Lozada standard were not submitted with the motion.  Brunetti, Wardlaw, and W. Fletcher (author), Circuit Judges.  G. Finn of Coachella, CA, for the pe-titioners;  F. Hunger of Washington, DC, for the respondent.(Download the full text at www.ce9.uscourts.gov/) 

37)  IMMIGRATION / ASYLUM:  Singh v. INS, 98-70663 (9th Cir. May 25, 2000).  In reviewing an IJ's denial of a motion to reopen deportation proceedings conducted in absentia, the BIA may not rely upon newly adopted evidentiary standards of which the alien had no notice.  Pregerson, Ferguson, and Wardlaw (author), Circuit Judges.  M. Mafi of Santa Ana, CA, for the petitioners;  J. Hunolt of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

38)  IMMIGRATION / ASYLUM:  Belayneh v. INS, 98-70941 (9th Cir. May 23, 2000).  The political views and activities of an asylum applicant's former spouse were insufficient to support a well-founded fear of persecution by homeland government officials claim, where the couple had been divorced for a substantial period and a new government had adopted democratic institutions.  Wallace, Pregerson, and Thomas (author), Circuit Judges.  H. Davis of Los Angeles, CA, for the petitioners;  M. Golding of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

39)  IMMIGRATION / DEPORTATION:  Castillo-Perez v. INS, 97-70548 (9th Cir. May 11, 2000).  An alien who is prima facie entitled to relief from deportation is not barred from applying for such relief because he failed to meet formal administrative pleading and proof requirements for an otherwise valid claim of ineffective assistance of counsel in the underlying deportation proceedings.  Politz, Reinhardt, and Hawkins (author), Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioners;  A Crowley and G. Wolfinger of Washington, DC, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

40)  IMMIGRATION / ILLEGAL REENTRY:  USA v. Pacheco-Medina, 99-50414 (9th Cir. May 16, 2000).  Evidence of an actual entry, not mere physical presence or the mere act of crossing the border, is required to support a conviction for the federal crime of being found in the United States following deportation;  the concept of "entry" not only illuminates but is also embedded in the "found in" the U.S. offense under which the petitioner was convicted;  the petitioner did not succeed in entering the U.S. "because he was under official restraint the whole time he was found before he got in."  Fernandez (author) and Wardlaw, Circuit Judges, and Weiner, District Judge.  FPD T. Cheng of San Diego, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

41)  IMMIGRATION / CRIMINAL LAW:  Flores-Miramontes v. INS, 98-70924 (9th Cir. May 9, 2000).  Federal courts have habeas jurisdiction to consider challenges to removal orders brought by aliens who are removable due to their commission of certain criminal offenses;  while jurisdiction by way of petition for review of removal orders no longer exists, habeas jurisdiction remains.  Reinhardt (author), Thompson, and T.G. Nelson, Circuit Judges.  P. Camp of Everett, WA, for the petitioner;  M. Candaux of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

42)  SPEEDY TRIAL / IMMIGRATION:  USA v. Ramirez-Cortez, 98-50774 (9th Cir. May 25, 2000).  In the context of a "fast track" program for expediting illegal re-entry cases, "ends of justice" continuances requested by a defendant who "waives" time does not toll the 30-day pre-indictment period of the Speedy Trial Act where the district court does not make the requisite simultaneous findings;  dissenting, Judge Silverman noted the chutzpah of the defendant to requested and received a continuance of the preliminary hearing and, after having obtained the benefit of that continuance, moves to dismiss the indictment on the ground that his own motion to continue should not have been granted—and he wins.  Thomas, Silverman (dissenting), and Wardlaw (author), Circuit Judge.  FPD D. Zugman of San Diego, CA, for the defendant-appellant;  AUSA G. Hardy of San Diego, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

43)  FOURTH AMENDMENT / PEPPER SPRAY: Head-waters Forest Defense v. County of Humboldt, 98-17250 (9th Cir. May 4, 2000).  The use of pepper spray in the eyes and on the faces of nonviolent, passive protestors may amount to an unreasonable use of force in violation of the Fourth Amendment;  concurring, Judge Bright added that this was a close case;  he would thus urge the parties to compromise their respective positions and settle rather than risk a second trial that might result in another tie;  moreover, as the protestors suffered no permanent injury, whether they could recover damages is highly uncertain.  Bright (concurring), Pregerson (author), and W. Fletcher, Circuit Judges.  M. Hughes of Denver, CO, for the plaintiffs;  N. Delaney of Eureka, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

44) SEARCH & SEIZURE:  USA v. Thomas, 99-10355 (9th Cir. May 8, 2000).  The sound of a package of marijuana being dropped into the bed of a pickup vehicle is insufficiently dis-tinctive to provide police reasonable suspicion to stop and search the vehicle.  Politz, Reinhardt (author), and Hawkins, Circuit Judges.  R. Salter of Tucson, AZ, for the defendant-appellant;  AUSA J. Albert of Tucson, AZ, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

45)  SEARCH & SEIZURE:  USA v. Depew, 98-30196 (9th Cir. May 2, 2000).  The district court did not abuse its discretion in denying an indigent defendant's request to authorize the employment of an expert witness to testify on the capabilities of a thermal imaging device used by police outside the defendant's residence to detect and measure heat emanating from the interior of the structure during a police investigation of the defendant for illegally growing marijuana in his home;  while the use of the thermal imager did not reveal details of the inside of the house, and thus did not result in a Fourth Amendment violation solely because of its use, there existed a dispute of fact as to whether the police were within the curtilage of the house when they made their thermal image scan;  the USCA thus remanded for the district court to make the necessary factual findings and determinations appropriate to those findings.  Pregerson and Thompson, Circuit Judges, and Kelleher, District Judge. Per Curiam.  L. Ginnings of Missoula, MT, for the defendant;  AUSA J. Van de Wetering of Missoula, MT, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

46) SEARCH & SEIZURE:  USA v. Reeves, 99-30158 (9th Cir. May 1, 2000).  For purposes of establishing probable cause for the issuance of a search warrant, doubts about the reliability of a confidential informant credibility raised by his history of criminal conduct involving dishonesty can be outweighed by information that the informant had previously provided truthful information leading to successful law-enforcement activities.  Noonan, Graber, and Fisher (author), Circuit Judges.  AFPD M. Weintraub of Eugene, OR, for the defendant-appellant;  AUSA J. Kent of Eugene, OR, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

47)  STATUTORY RAPE:  USA v. Juvenile Male, 99-30269 (9th Cir. May 11, 2000).  The "mistake of age" defense was not available to a 17 year old male accused to engaging in a sexual act with an 11 year old girl.  Rymer and T.G. Nelson, Circuit Judges, and Browning, District Judge.  Per Curiam.  AFPD D. Donovan of Great Falls, MT, for the defendant-appellant;  AUSA K. Richter of Billings, MT, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

48)  RIGHT TO COUNSEL:  USA v. Harrison, 99-10496 (9th Cir. May 30, 2000).  In well-defined circumstances, a defendant's ongoing representation by an attorney, although beginning before the indictment, invokes the right to counsel once that right attaches at the time of indictment.  Tashima and Graber, Circuit Judges, and Kelleher (author), District Judge.  AUSA J. Wilson of San Francisco, CA, for the plaintiff;  G. Eisenberg of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

49)  RIGHT TO COUNSEL / CAPITAL CASES: Jackson v. Calderon, 97-99032 (9th Cir. May 8, 2000).  In the petitioner's state trial for killing a police officer, defense counsel's failure to investigate and present available expert medical evidence on the defendant's impaired mental state at the time of being charged with a capital offense constituted constitutionally ineffective assistance of counsel;  Judge O'Scannlain concurred in the majority's affirmance of the petitioner's conviction for first degree murder and in the majority's denial of the petitioner's actual innocence claim, but dissented from the majority reliance on speculation regarding the effect of additional evidence to over-turn the petitioner's sentence.  Canby (author), O'Scannlain (dissenting-in-part), and Thomas, Circuit Judges.  A. Kreps of Los Angeles, CA for the petitioner-appellant;  D. Nicola of Los An-geles, CA, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 

50)  JURY INSTRUCTIONS / CAPITAL CASES: Coleman v. Calderon, 97-99013 (9th Cir. May 2, 2000).  In a state capital criminal prosecution, the trial court's jury instruction that a life sentence without the possibility of parole could be commuted by the Governor to a lesser sentence that included the possibility of parole was not harmless error where the prosecutor's argument had stressed the defendant's threat to the public;  Judge Brunetti agreed that the petitioner was not prejudiced by the concealment of Hemastix test results and bloody print evidence and that the commutation instruction was constitutionally deficient under Boyde v. California, 494 US 370 (1990), but he dissented from the conclusion that the instruction had a "substantial and injurious effect" on the jury's deliberations and thus was not harmless;  Judge Brunetti thought the majority's analysis did not follow the pronouncements of Brecht v. Abrahamson, 507 US 619 (1993), and its progeny and because the record indicated that the petitioner did not suffer any actual prejudice from the application of the instruction.  Schroeder, Brunetti (dissenting in part), and Thompson (author), Circuit Judges.  C. Gardner of San Francisco, CA, for the petitioner;  M. Beatus of San Francisco, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

51)  SENTENCING:  USA v. Hernandez-Sandoval, 98-50356 (9th Cir. May 3, 2000).  The prohibition against "double-counting" in federal criminal sentencing does not preclude separate enhancements for "endangering members of the public," and for endangering a person the defendant knows to be a law-enforcement officer.  O'Scannlain (author), Fernandez, and T.G. Nelson, Circuit Judges.  AFPD S. Hubachek of San Diego, CA, for the defendant-appellant;  AUSA K. Kelly of San Diego, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

52)  HABEAS CORPUS:  USA v. Garcia, 98-15839 (9th Cir. May 2, 2000).  A federal conviction becomes final 90 days after the time for filing a certiorari petition in the Supreme Court expires, and at that time the one-year limitations period for filing a 28 USC Sec. 2255 motion begins to run.  O'Scannlain (author), Leavy, and Rymer, Circuit Judges.  K. Hart of Fresno, CA, for the defendant-appellant;  AUSA M. McKeon of Sacra-mento, CA, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

53)  HABEAS CORPUS:  Tran v. Lindsey, 98-56251 (9th Cir. May 16, 2000).  A federal court must apply the "clearly erroneous" standard when reviewing a habeas petitioner's challenge, on grounds that it involved an unreasonable application of clearly established federal law, a state court denial of his petition which claimed ineffective assistance of counsel.  Reinhardt (author) and Hawkins, Circuit Judges, and Whyte, District Judge.  A. Bloom of San Diego, CA, for the petitioner;  G. Beaumont of San Diego, CA, for the respondents. (Download the full text at www.ce9.uscourts.gov/) 

2)  CLAYTON ACT:  California v. Sutter Health, 00-15039 (9th Cir. May 2, 2000) .  Kozinski, Rymer, and Fisher, Circuit Judges.
              The State of California appealed an order of the District Court for the Northern District of California, Judge Chesney presiding, denying the State's request for a preliminary injunction to prevent the merger of Alta Bates Medical Center in Berkeley (owned by Sutter Health) and Summit Medical Center in Oakland.  The State maintained that the merger would substantially lessen competition in violation of Sec. 7 of the Clayton Act. 
           The USCA affirmed, rejecting the contention of Sutter Health and Alta Bates that the appeal is moot.  The USCA cited case authority (1) for rejecting a mootness argument in an appeal from the denial of a preliminary injunction because where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined, the court may by mandatory injunction restore the status quo, (2) for ordering parties to return to the status quo notwithstanding consummation of corporate merger immediately following district court's denial of requests for preliminary injunctions; and (3) for rejecting the contention that the completion of merger rendered moot an appeal from the denial of a request for a temporary injunction restraining the merger.  However, the USCA noted that it subjects a district court's order regarding preliminary injunctive relief only to limited review.  The USCA's review of an order regarding a preliminary injunction "is much more limited than review of an order involving a permanent injunction, where all conclusions of law are freely reviewable.  A decision regarding a preliminary injunction is reviewed for abuse of discretion, which occurs only if the district court based its decision on either an erroneous legal standard or clearly erroneous factual findings.  The USCA could not say that the district court here abused its discretion.  Accordingly, the USCA affirmed its denial of the request for a preliminary injunction, adding that its disposition will affect the rights of the parties only until the district court renders final judgment.

3)  ATTORNEYS' FEES:  Wang v. Douglas Aircraft, Co., 98-56860 (9th Cir. May 10, 2000) (unpublished).  Brunetti and Tashima, Circuit Judges, and Schwarzer, District Judge.
           The appeals consolidated here all arose out of a personal injury action in which the plaintiff, Li, sought damages from an aircraft manufacturer.  Four law firms collaborated on Li's case.  Two of them, the Kananack firm and the Magana firm, appealed an order of the District Court for the Central District of California, Judge Real presiding, on remand that they each pay one-third of their previously awarded attorneys' fees to the Pu Dong Law Office of Shanghai, based on a fee-splitting agreement among the law firms.  The district court had jurisdiction over the underlying action pursuant to 28 USC Secs. 1332(a)(2) and 1441. 
           The USCA reversed and remanded.  In an earlier order, the USCA vacated the portion of the district court's order which found that Pu Dong was not entitled to attorney's fees because it is a foreign law firm.  Specifically, the USCA stated:  "We vacate the portion of the district court's order denying fees to Pu Dong.  We remand to the district court for a determination of whether Pu Dong performed services for Li's benefit that did not duplicate the services of the attorneys working on her case in California.  If Pu Dong performed such services, the district court should make an appropriate award of attorney's fees based on the reasonable value of the services that Pu Dong  performed in Shanghai."  The district court refused to grant Pu Dong any award under quantum meruit because Pu Dong failed to provide contemporaneous time records and because "the time records furnished to the Court [were] not credible since they appear[ed] to be grossly overstated for the tasks performed by Pu Dong."  Nevertheless, the district court ordered Kananack and Magana each to pay one-third of their fees to Pu Dong, based on a letter agreement among the law firms, which the USCA previously determined was void as to Li.  The district court violated the rule of the mandate doctrine by granting attorneys' fees to Pu Dong based on the letter agreement.  According to the terms of the mandate, the USCA's remand was strictly for the purpose of determining reasonable attorneys' fees for Pu Dong's services and thus precluded any other inquiry, including reallocating fees based on the letter agreement.  The USCA thus reversed the district court's order requiring Kananack and Magana each to pay one-third of their fees to Pu Dong.  Moreover, although the district court refused to award fees under quantum meruit because it found Pu Dong's time records were "grossly overstated," it is unclear whether it found that Pu Dong performed non-duplicative services, given that it awarded attorneys' fees to Pu Dong.  The USCA thus remanded to the district court solely to determine under principles of quantum meruit under California law whether Pu Dong performed services for Li's benefit that did not duplicate the services of the attorneys working on her case in California.  If Pu Dong performed such services, the USCA instructed the district court to make an appropriate award of attorney's fees based on the reasonable value of the services that Pu Dong performed in Shanghai and that any such award shall be paid by Li's estate.

4)  RICO / CONTRACTS:  Aviation Support International, Inc. v. Northrop Grumman Corp., 98-56270 (9th Cir. May 15, 2000) (unpublished).  Hug and Thompson, Circuit Judges, and Restani, US Court of International Trade Judge.
            Aviation Support International ("ASI") and its president, Riva, (collectively "ASI"), brought an action against Northrop Grumman Corporation ("Northrop") and several Northrop subsidiaries and corporate officers ("defendants").  ASI appealed a sua sponte dismissal of its complaint by the District Court of California, Judge Ideman presiding, for failure to state a claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO").  ASI also appealed the district court's denial of leave to file a second amended complaint.
           The USCA affirmed, finding that ASI's claim was properly dismissed because ASI was unable to allege any facts that would have entitled it to relief.  ASI failed to establish a "pattern" of racketeering activity, by not setting forth the requisite allegations of "continuity" and "relatedness" of the predicate acts.  A single episode of racketeering activity having a single purpose does not constitute a pattern under RICO.  ASI's allegations amounted to a single episode of racketeering activity, because ASI alleged only that the defendants' actions put ASI out of business in the South American military sales contract market.  ASI also challenged the propriety of the district court's sua sponte dismissal of its action.  Even in the absence of a Formal FRCP 12(b)(6) motion, "the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair."  ASI had notice that the district court was considering a dismissal of its claim when the court requested that ASI complete a RICO case statement, which included a request that ASI "file a memorandum…as to why the RICO claim should not be dismissed."  This order provided ASI with reasonable notice and an opportunity to respond.  ASI also appealed the district court's denial of leave to amend its complaint.  ASI amended its complaint shortly after submitting its RICO case statement, but the district court denied ASI leave to amend a second time.  Although denial of leave to amend is "strictly reviewed, in light of the strong policy permitting amendment," the district court need not grant leave to amend "if a complaint, as amended, is subject to dismissal."  The proposed second amended complaint did not cure the deficiencies observed in the first.

5)  SECURITIES LAW:  SEC v. Rogers, 98-56339 (9th Cir. May 18, 2000) (unpublished).  Fernandez, Tashima, and Silverman, Circuit Judges.
          In an action brought by the Securities and Exchange Commission alleging that Rogers and Armijo, formerly officers of Comparator Systems Corporation, had made materially false and misleading statements to investors and prospective investors regarding Comparator's technology, the District Court for the Central District of California, Judge Baird presiding, ordered the defendants to disgorge profits derived from violations of federal securities laws.  The defendants appealed.
          The USCA affirmed.  First, it found that the defendants were estopped from denying that Comparator was not engaged in substantial business activities.  The plain language of the con-sent of judgment entered into by both Rogers and Armijo states in relevant part that they each agree to comply with 17 CFR Sec. 202.5(e) and not to take any action denying any allegation in the complaint.  Second, the district court did not err in considering the alleged hearsay statement made to the SEC by former Comparator employee Churchill.  At issue was whether, under Central District of California Local Rule 7.5.3, which the parties agreed would govern the case, Churchill's statement constituted the equivalent of a declaration or affidavit consistent with the requirements of FRCP 56(e).  The statement offered by the SEC was in transcript form containing Churchill's sworn oral responses to questions by the SEC.  As such, it was sufficient to be considered an affidavit.  The USCA concluded that there was no plain error.  The defendants next argued that the disgorgement order should not apply to compensation.  However, the USCA noted that the "purpose of disgorgement is to deprive a person of ill-gotten gains and prevent unjust enrichment."  To the extend that compensation flows from ill-gotten gains, the offending parties should be required to disgorge it to prevent unjust enrichment.  Here, because the district court did not err in finding that Comparator did not engage in substantial business activities, it did not abuse its discretion in finding that the defendants' compensation should be disgorged.  Finally, the district court correctly denied the motion for reconsideration, because it committed no clear error in the original ruling and the newly presented evidence could reasonably have been presented earlier.

6)  PETROLEUM MARKETING PRACTICES ACT: University Exxon, Inc. v. Win Oil Company, 98-17369 (9th Cir. May 19, 2000) (unpublished).  Kozinski, Kleinfeld, and McKeown, Circuit Judges.
           The District Court for Arizona, Judge Carroll presiding, entered summary judgment for Win Oil Company.  The USCA affirmed.  Win Oil and Gus Baber entered into a written Petroleum Marketing Practices Act ("PMPA") franchise on July 24, 1991.  The franchise expired by its terms on November 30, 1993.  Win Oil and Baber continued to do business thereafter without a written agreement, and there is no evidence they had an oral agreement.  In 1996, Win Oil "debranded" the service station, and University Exxon sued, alleging that the debranding violated the PMPA.  At issue was whether an implied-in-fact contract that arose from the parties' conduct qualified as a PMPA franchise.  The USCA agreed with the district court that it did not.  The PMPA defines "franchise" as any "contract" between a distributor and a retailer under which the distributor authorizes the retailer to use a trademark in connection with the sale of motor fuel.  The term "contract" is defined as "any oral or written agreement."  By its plain language, the PMPA governs only "oral or written" agreements, and because the record contains no evidence of either an oral or written agreement after the expiration of the 1991 franchise, dismissal of University Exxon's PMPA claim was appropriate.  Arizona contract law is consistent with this result.  Under Arizona law, the PMPA's protections extend only to express contracts, not to contracts implied-in-fact.  There is no evidence of any express contract after November 30, 1993.  The USCA found no need to decide whether University Exxon, rather than Baber, was a party to any implied agreement with Win Oil.  Finally, the USCA expressed no opinion as to possible remedies Baber or University Exxon may have under state law.

7)  BANKRUPTCY:  In re Connolly, 99-15000 (9th Cir. May 5, 2000) (unpublished).  Schroeder, Beezer, and Trott, Circuit Judges.
            The District Court for the Northern District of California, Judge Henderson presiding, affirmed a bankruptcy court's summary judgment for creditor Brothers International Corporation.  The district court determined that Brothers' state-court judgment against Connolly for intentional misrepresentation and fraudulent concealment was a nondischargeable debt under 11 USC Secs. 523(a)(2)(A) and (a)(6).  On appeal, Connolly first argued that a federal court's reliance on the state court judgment to reach a conclusion of nondischargeability in this case would violate his Seventh Amendment right to a jury trial.  Second, he argued that his fraudulent statements were oral statements concerning the financial condition of an insider or affiliate and, thus, not within 11 USC Sec. 523(a)(2)(B) for purposes of proving nondischargeability.
            The USCA affirmed.  Brothers cited Sec. 523(a)(2)(A) for its argument that Connolly's judgment-debt is nondischargeable.  Subsection 523(a)(2)(A) provides that a debtor in bankruptcy may not be discharged from any debt "for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by ... (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition."  Whether Connolly's judgment-debt is nondischargeable is a mixed issue of law and fact reviewed de novo.  Connolly's argument based on his right to a jury trial under the Seventh Amendment was meritless.  Bankruptcy courts, like any federal court, are required to grant state court judgments full faith and credit.  Thus, in nondischargeability proceedings, bankruptcy courts must apply collateral estoppel principles to state court judgments.  Full faith and credit dictates that federal courts give state court judgments the same full faith and credit as they would receive from another court of the same state.  However, the jury's findings in the parties' first state trial never became a "final judgment" because the California Court of Appeal remanded the case for a new trial.  Connolly specifically argued for a limited retrial both in his brief to the appellate court and in his petition for rehearing following the appellate court's decision.  Thus, while the California Court of Appeal's order remanding the case for a second trial did not specify that the retrial should consider all issues raised in the first trial, once it denied Connolly's petition for rehearing the court had considered his argument twice—and had denied it both times.  In addition, the remand for a retrial on all issues in the case is wholly consistent with California appellate remedies for inconsistent verdicts at trial.  Once Connolly realized that all claims made in the first trial were up for reconsideration in the second trial, his proper course of action was to try and win the second trial, with findings of fact in his favor.  This he was unable to do.  The judgment from the second trial is the only judgment subject to full faith and credit.  In the second trial, Brothers won all the issues, and the California Court of Appeal affirmed.  The California Supreme Court denied Connolly's petition for review.  Thus, if California courts would grant collateral estoppel effect to the findings of fraud entered in the second state trial, when the issues are raised again in Brothers' nondischargeability bankruptcy action, so too must it, the USCA held.  The USCA said it must use California collateral estoppel law when considering whether the issues raised in Brothers' nondischargeability action are precluded by the California state court judgment holding Connolly liable for intentional misrepresenta-tion and fraudulent concealment.  Under California law, collateral estoppel will apply when (1) the issue to be decided is identical to that decided in a former proceeding;  (2) the issue was actually litigated and (3) necessarily decided;  (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.  Whether the issues decided in the state trial are "identical to" the issues to be decided in Brothers' nondischargeability action appears to be the only element at issue when assessing whether the bankruptcy court correctly afforded the state court's finding preclusive effect.  Connolly's debt is nondischargeable under Sec. 523(a)(2)(A) if it was "obtained by … false pretenses, a false representation, or actual fraud."  Brothers must prove the following elements in order to establish nondischargeability under that section: (1) that Connolly made the representations;  (2) that, at the time, Connolly knew they were false;  (3) that Connolly made them with the intention and purpose of deceiving Brothers;  (4) that Brothers justifiably relied on such representations;  and (5) that Brothers sustained the alleged loss and damage as the proximate result of the representations having been made.  In the "Statement of Decisions," the California trial court in the second state trial made sufficient findings to cover the elements of subsection 523(a)(2)(A) nondischargeability.  The state court found that Connolly made the "good store" comment about his tenant, Castleton's.  The court found that Connolly knew about Castleton's "devastating financial status" at the time he made the comment.  The court found that Connolly made the comment "with the intention and purpose of deceiving Brothers into believing that Castleton's was a 'good store' (which was false)."  The court found that "Brothers justifiably relied on this representation in closing the sale" of the shopping center.  Finally, the court found that "Brothers sustained damages as a direct and proximate result of [the Civil Defendants'] representations."  Thus, the California state court explicitly made all factual findings necessary for a federal court to give its decision collateral estoppel effect in this nondischargeability action.  Connolly is not saved from this conclusion by Sec. 523(a)(2)(A)'s exception from nondischargeability for allegedly fraudulent "statement[s] respecting the debtor's or an insider's financial condition.  Under Sec. 523(a)(2)(B)(ii), such statements must be in writing in order to provide the basis for a nondischargeability conclusion.  Under 11 USC Sec. 101(31), if the debtor is an individual, "insider" includes a "relative of the debtor or of a general partner of the debtor," a "partnership in which the debtor is a general partner," a "general partner of the debtor," or a "corporation of which the debtor is a director, officer, or person in control."  Connolly cited no evidence that Castleton played any of these roles or participated in any of these relationships.  Connolly also believed that Sec. 523(a)(2)(B) applied because of his conclusion that Castleton is an "affiliate" within the meaning of 11 USC Sec. 101(2)(A).  The bankruptcy definition of "insider" also includes an "affiliate, or insider of an affiliate as if such affiliate were the debtor."  Section 101(2)(A) provides, in part, that "affiliate" means an "entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor."  Again, Connolly failed to cite any evidence relevant to demonstrate one of these relationships or that Castleton fits within any other part of the definition of an "affiliate."  The USCA thus concluded that the judgment and findings from the second state trial precluded the bankruptcy court from relitigating the issue of Connolly's fraud.  Moreover, Connolly had set forth no facts that show that Castleton was either an "insider" or an "affiliate" within the meaning of Title 11.  Thus, the bankruptcy court correctly assessed the nondischargeability of Connolly's judgment-debt under Sec. 523(a)(2)(A).  The USCA thus affirmed the bankruptcy court's grant of summary judgment in favor of Brothers on its nondischargeability claim.

8)  BANKRUPTCY / STANDING:  In re Levy, 99-16076 (9th Cir. May 4, 2000).  Kozinski, Rymer, and Fisher, Circuit Judges.
         The District Court for the Northern District of Califor-nia, Judge Orrick presiding, dismissed for mootness an appeal by RRC Acquisition, LLC from the bankruptcy court's dismissal because RRC lacked standing to object to the bankruptcy trustee's sale of the bankrupt's estate.  The USCA affirmed.  Before the bankruptcy court, RRC sought to challenge the trustee's sale of the debtor's 20% interest in the Royal Athletic Club and the Burlingame Partnership to Zanello, Gaewhiler, and MacDonald ("ZGM").  The district court properly dismissed RRC's appeal due to mootness as ZGM was a good faith purchaser and RRC failed to obtain a stay of the sale pending appeal.  The USCA cited Filtercorp, Inc. v. Gateway Venture Partners, 163 F.3d 570 (9th Cir. 1998), for the proposition that insider status alone does not establish bad faith.

9)  BANKRUPTCY:  In re Litwak, 99-55678 (9th Cir. May 2, 2000) (unpublished).  Schroeder, Beezer, and Trott, Circuit Judges.
           The Bankruptcy Appellate Panel affirmed the bank-ruptcy court's grant of summary judgment in favor of Oscar Productions and Jennifer O'Neill (collectively "appellees") on their claim of nondischargeability under 11 USC. Secs. 523(a)(2)(A) and (a)(6).  The USCA affirmed.  On appeal, Litwak argued that the bankruptcy court erred in giving collateral estoppel effect to the state court default judgment because the federal, rather than state, rule of collateral estoppel applies, and an exception to the full faith and credit statute applies based on the strong federal policy of a fresh start for the honest, but unfortunate debtor.  The USCA rejected these arguments as they squarely contradict Gayden v. Nourbakhsh, 67 F.3d 798 (9th Cir. 1995), which holds that to determine the preclusive effect of a state court judgment in a subsequent federal lawsuit, courts must decide whether, under the applicable state law, the state court judgment should be given collateral estoppel effect, and, if so, whether an exception to the full faith and credit statute should apply.  Applying this framework, Nourbakhsh first determined that, under Florida law, the default judgment against the debtor would be given collateral estoppel effect.  Then, relying on Grogan v. Garner, 498 US 279 (1991), Nourbakhsh concluded that there was no applicable exception to the full faith and credit statute.  Nourbakhsh thus held that the Florida state court default judgment should be given collateral estoppel effect in the subsequent bankruptcy proceeding.  Here, the issues were the same as those in Nourbakhsh and Litwak advanced the same arguments as the debtor in that case.  Moreover, like Florida, California law pro-vides that courts should given collateral estoppel effect to a state court default judgment.

10)  BANKRUPTCY:  In re Garber, 99-15161 (9th Cir. May 22, 2000) (unpublished).  Tashima and Graber, Circuit Judges, and Brewster, District Judge.
          National Union Fire Insurance Company of Pittsburgh filed a motion in bankruptcy court seeking relief from the auto-matic stay in order to pursue an action for fraudulent transfer pending in district court.  The bankruptcy court granted the motion.  The District Court for the Eastern District of California, Judge Coyle presiding, upheld this decision.  The Garbers appealed that ruling and also the district court refusal to recuse itself.
           The USCA affirmed.  Decisions to lift an automatic stay are within the discretion of the bankruptcy court and are reviewed for an abuse of discretion.  However, interpretations of the bankruptcy statutes involve questions of law reviewed de novo.  The Garbers first argued that the bankruptcy court erred in stating that there was no automatic stay that applied to Na-tional Union's fraudulent transfer action in district court.  In support of this argument, they cite remarks made by the bankruptcy judge during the motion hearing, as well as ambiguous wording in the bankruptcy court's order.  The second paragraph of the bankruptcy court's order provided as follows:  "The Motion [for Relief from Stay] be, and hereby is, granted to the extent required to proceed with the said litigation."  Because this sentence of the order explicitly lifts the stay, it cures any previous arguably defective or ambiguous wording.  The Garbers next argued that, if the bankruptcy court did in fact lift the automatic stay with respect to the fraudulent transfer lawsuit, it abused its discretion in doing so.  11 USC Sec. 362(d)(1) provides in pertinent part as follows:  "On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay … for cause, including the lack of adequate protection of an interest in property of such a party interest."  The term "for cause" has been construed quite broadly by courts reviewing a bankruptcy court's decision to lift the automatic stay.  Cause for lifting the stay has no clear definition and is determined on a case-by-case basis.  A bankruptcy court has great discretion in its ability to lift the automatic stay.  In this case, the bankruptcy court lifted the automatic stay to allow National Union to pursue its fraudulent transfer action that had been pending in district court.  It was reasonable for the bankruptcy court to lift the stay in such a situation.  For example, if the transfer were voided, the transferred property could be deposited with the Garbers' Trustee, where it could be available to the estate's creditors, including National Union.  The USCA con-cluded that the bankruptcy court did not abuse its discretion in granting National Union's motion for relief from the automatic stay.  Finally, the Garbers maintained that the district court erred in refusing to recuse itself from hearing the appeal of the bankruptcy court's order lifting the stay.  However, the question whether the automatic stay should have been lifted was never previously raised before the district court.  Because the district court had not decided the issues, there was no "appearance of impropriety" in its handling the appeal of that ruling from the bankruptcy court.  The Garbers further argued that it was "a highly unusual occurrence" for the district court to withdraw the reference "sua sponte," which purportedly belies its lack of impartiality.  The fact that the district court withdrew the reference to the adversary proceeding, even if sua sponte, was within its power under 28 USC Sec. 157(d), a statute that provides great discretion to the district court in deciding whether to withdraw the reference of a bankruptcy court proceeding.  The Garbers failed to show any reason why the district court should not be viewed as impartial.

11)  SHIPPING LAW:  M&Z Trading Corp. v. Cargolift, Ltd., 98-56887 (9th Cir. May 18, 2000) (unpublished).  Thompson, W. Fletcher, and Fisher, Circuit Judges.
           The District Court for the Central District of California, Judge Real presiding, granted summary judgment in favor of Cargolift, Ltd. and Hecny Group.  M&Z Trading appealed.
           The USCA reversed and remanded, finding summary judgment inappropriate for several reasons.  First, the district court initially adopted and interpreted a March 26th agreement as the operative agreement, but then issued findings of fact and conclusions of law inconsistently stating that the bill of lading superseded any prior agreement.  Moreover, the parties themselves vigorously dispute which agreement (or agreements) governed the shipment at issue in this litigation.  M&Z maintained that it was the March 26th agreement, whereas Cargolift argued that a March 18th agreement and/or the Cargolift bill of lading constituted the relevant contract.  Resolution of this dispute turned on factual and legal issues relating to, for example, the parties' negotiations, the documents generated during these negotiations and the status and legal effect of the bill of lading.  Second, the district court's reading of the March 26th agreement—that Cargolift's obligations thereunder began only upon receipt of the goods in Latvia—was erroneous.  The sentence to which the district court referred dealt only with Cargolift's responsibility for time of delivery.  By the express terms of the March 26th agreement, Cargolift's general obligations began upon initial pick-up of the goods in Canada and continued until final delivery in Sabezh, Russia.  Third, the bill of lading could have, at most, only supplemented the parties' prior agreement, unless the parties clearly agree otherwise.  Here, it is far from clear that the parties intended the bill of lading entirely to nullify the lengthy course of negotiations that culminated in the written March 26th agreement.  Finally, the district court erred in concluding that M&Z's complaint was barred by the doctrine of judicial estoppel.  That doctrine did not apply because the alleged admission that the bill of lading was the contract of carriage was contained in M&Z's original compliant in the New York action, but was superseded when M&Z filed its amended complaint.  Moreover, the USCA did not read M&Z's original complaint and its complaint as amended as filed in this action as "playing fast and loose with the courts," which is the rationale for judicial estoppel, also known as the "doctrine of preclusion of inconsistent positions."  Helfand v. Gerson, 105 F.3d 530 (9th Cir. 1997).  The USCA also found that additional disputed factual and legal issues included, but were not limited to, the following:  First, assuming the March 26th agreement governs the transaction, the parties dispute both its meaning and scope, including whether the elimination of Cargolift's responsibility for Russian customs encompassed only delay issues or extended to all customs issues.  Second, the parties dispute whether Cargolift's Latvian agents relabeled the cargo when transferring it form the Sealand ship to the agent's vans upon arrival at the port of Riga, Latvia, and whether that relabeling constituted negligence.  Third, the parties dispute whether Cargolift was legally authorized to issue a bill of lading—an issue that relates to a disputed question regarding the precise relationship between Cargolift and Hecny Group.  Finally, assuming that the bill of lading governs this transaction to some extent, the parties dis-pute the applicability of the bill of lading's limitation of liability provisions to the facts of this case—a question that further encompasses the disputed question of negligence on Cargolift's part.

12)  TAXATION:  Stuck v. USA, 99-55515 (9th Cir. May 18, 2000) (unpublished).  Choy, Wallace, and Skopil, Circuit Judges.
           The District Court for the Southern District of California, Judge Whelan presiding, dismissed the Stucks action for invasion of privacy, fraud, deceit, racketeering, and harassment in connection with a tax penalty assessed against them for filing a frivolous income tax return with the IRS.
            The USCA affirmed.  First, in any civil action against a federal employee, the US Attorney General may certify that the employee was acting within the scope of his employment when the relevant incident occurred.  Upon such certification, the United States is substituted as the defendant for any individuals covered by the certification.  The Attorney General's certification is conclusive unless challenged.  A party challenging certification bears the burden of proving by a preponderance of the evidence that the certification was deficient.  The Attorney General's certification covered most of the defendants in this case.  The Stucks challenged that certification.  However, the Stucks failed to offer any credible evidence that the defendants were acting outside the scope of their official duties.  The certification was thus valid, and the United States was properly substituted for the defendants named in the certification.  Second, the United States enjoys sovereign immunity from suit unless it ex-pressly waives such immunity and consents to be sued.  There was no such waiver in this case.  A taxpayer may not sue the federal government for damages based on an assessment of taxes and penalties where the government employees were acting within the scope of their official duties.  As the certified defendants were working within the scope of their official duties, the dismissal of the Stucks' suit against the United States was proper.  Third, plaintiffs may not sue the IRS in tort until they exhaust their administrative remedies.  The Stucks never presented their claims to the IRS.  The district court thus properly dismissed their action.  Finally, the Stucks, though residents of California, argued that they are not subject to federal taxation because they have no "political relationship" with the United States.  Citing a line of cases, the USCA found this contention to be completely meritless.

13)  INSURANCE:  Ramirez v. State Farm Insurance Company, 98-56811 (9th Cir. May 15, 2000) (unpublished).  Fernandez (concurring in the result) and Wardlaw Circuit Judges, and Weiner, District Judge.
           The District Court for the Central District of California, Judge Marshall presiding, granted summary judgment in favor of State Farm Insurance Company.  The Ramirezes, the insureds under a general liability homeowners policy issued by State Farm, had alleged that State Farm acted in bad faith in refusing to defend or indemnify them in a state court action by their neighbors for excessive noise.  After the Ramirezes filed their complaint, State Farm agreed to defend and indemnify them.  However, the Ramirezes continued to seek damages for emotional distress.  The district court rejected their claims, finding that they incurred no economic loss, and concluding that damages for emotional distress were insufficient to sustain a bad faith claim in the absence of economic loss. 
         The USCA affirmed.  The district court correctly held that the Ramirezes "suffered no economic damages as a result of State Farm's initial refusal to tender a defense" because "State Farm paid the settlement amount on behalf of the Ramirez' [sic] and all attorneys' fees incurred by the Ramirez [sic] in the defense of the Pyper action."  The USCA noted that under Waters v. United Servs. Auto Ass'n, 41 Cal. App. 4th 1063 (1996), emotional distress damages are recoverable in first- and third-party bad faith cases only when the insureds have suffered a financial loss.  Although at the time that the Ramirezes filed the instant action, they suffered economic loss in the form of defense costs incurred due to State Farm's denial of coverage and refusal to defendn them in the underlying action, the subsequent full reimbursement of all costs associated with the action eliminated those damages.  Like the insureds in Waters, the Ramirezes did not provide any "evidence of actual financial loss suffered by the insured."  The California Court of Appeals noted that "In the old days, when an insurance company was sued because it denied coverage … the carrier did not pay until forced to do so by a final judgment against it.  Today, it appears to be more common for a carrier to do an immediate about-face when it is sued, presumably with the hope of limiting its liability for continuing emotional distress and punitive damages.  Whatever pros or cons there may be to this tactic, and whatever effect it may have on the extent of economic loss suffered by the insured (or on the formula used by calculate emotional distress or punitive damages), we do not believe it affects the rule that some financial loss is required to support an award of emotional distress damages."  The USCA interpreted these statements to mean that the insurer's decision to pay after being sued affected the calculation of economic loss, and if the resulting extent of the economic loss is zero, then emotional distress damages are no longer available because no financial loss remains.  The USCA thus affirmed the district court's grant of summary judgment on the basis that State Farm's reimbursement of all economic costs associated with the underlying action precludes the Ramirezes, as a matter of law, from sustaining their bad faith claim.

14)  INSURANCE / PATENT INFRINGEMENTS: Kemmer Agricultural Manufacturing Co. v. Mutual Service Casualty Insurance Co., 99-15349 (9th Cir. May 18, 2000) (unpublished).  Sneed, Schroeder, and Trott, Circuit Judges.
            The District Court for the Eastern District of California, Judge Wanger presiding, entered summary judgment for Mutual Service Casualty Insurance Company ("MSI") on Kemmer Agricultural Manufacturing Company's claim that MSI's policy provided coverage for Kemmer's defense in an underlying patent infringement suit by Platte Chemical Company.  The USCA affirmed.  It found that the district court correctly ruled that the claims against Kemmer in the underlying litigation did not arise out of "advertising injury" offenses, and that Kemmer was thus not entitled to coverage.  A claim of inducing patent infringement could not reasonably be said to constitute an advertising injury.  Moreover, the amendment to 35 USC Sec. 271 that be-came effective January 1, 1996, and were discussed in Everett Associates v. Transcontinental Ins. Co., 57 F. Supp. 2d 874 (N.D. Cal. 1999), were not relevant here because the underlying litigation was commenced before the effective date of the amendment.  Kemmer also maintained that Platte's claim for attorneys' fees arising out of its defense of Kemmer's baseless counterclaims amounted to a claim for "malicious prosecution" or "abuse of process" within the meaning of the policy provisions.  As the district court pointed out, Platte never asserted a claim of malicious prosecution against Kemmer;  the Kemmer counterclaim was ultimately dismissed without prejudice, with no finding of malice in connection with its institution.  The award of fees was sought by Platte as the prevailing party on the underlying patent case.  Sanctions were awarded on the basis of the conduct of Kemmer's attorneys, not on account of Kemmer's motive in filing the counterclaim.

15)  INSURANCE:  Stenbock v. Hartford Fire Insurance Company, 99-15191 (9th Cir. May 4, 2000) (unpublished).  Sneed, Schroeder, and Trott, Circuit Judges.
             The District Court for the Eastern District of California, Judge Levi presiding, granted Hartford Fire Insurance Company's motion to dismiss pursuant to FRCP 12(b)(6).  Appellants Stenbock and U.S. Corporation Services, Inc. ("USCSI") maintained that the district court erred in concluding that Hartford did not have a duty to defend them in an underlying third-party suit for trademark infringement and unfair competition.
             The USCA affirmed.  The appellants argued that the district court erred in dismissing their complaint because there was at least a possibility that the offenses alleged in the underlying complaint were covered by the "advertising injury" provisions of USCSI's insurance policy.  The USCA disagreed.  USCSI's policy provides coverage only for "advertising injury" caused by an offense committed in the course of advertising "your goods, products, or services."  Here, any injury alleged in the underlying complaint was cause by the advertising of Credit Suisse International Holding Corporation's—not USCSI's—goods, products, or services.  Moreover, as the district court correctly held, any injury alleged in the underlying complaint caused by USCSI's use of the name "Credit Suisse" resulted from the "rendering or failure to render any professional service," thereby falling squarely within the "professional services" exclusion.  The USCA thus affirmed the district court's order granting Hartford's Rule 12(b)(6) motion.

16)  INSURANCE:  Miller v. Allstate Insurance Co., 98-56873 (9th Cir. May 5, 2000) (unpublished).  Thompson, W. Fletcher, and Fisher, Circuit Judges.
            The District Court for the Central District of California, Judge Byrne presiding, entered summary judgment in favor of Allstate Insurance Company.
            The USCA affirmed.  It noted that an insurer is not liable for arbitrating a claim provided it has reasonably investigated the facts and there remain genuine questions as to the extent of it liability.  The undisputed facts of this case show that Allstate's investigation of Miller's claim was reasonable.  Moreover, the investigation revealed a number of gaps and factual discrepancies that justified Allstate's decision to arbitrate the claim.  Although Miller made a claim for benefits based on a collision with an uninsured motorist, he supplied Allstate only with the name and address of the other driver.  He did not supply her telephone number, nor did he supply the license plate number or vehicle identification number of her car, despite the fact that she told him that she did not own the car she was driving.  Allstate investigated the limited amount of information it had by interviewing Miller, attempting unsuccessfully to contract the other driver by mail, photographing Miller's car, estimating the costs of repairing the damage, reviewing Miller's documented medical expenses, and reviewing documentation from Miller's employer listing the days he had missed work after the accident.  The information Allstate gathered quickly began to raise as many questions as it answered.  Despite Miller's claim of a serious accident resulting in serious injury, his car was barely damaged.  He did not seek medical attention until the next day.  He chose a doctor recommended by his attorney rather than a doctor at Kaiser, where he was fully insured.  He was unable to supply much identifying information about the other driver or her car, and he could identify no witnesses.  There was no police report.  His employer indicated that he did not go out on disability leave until nine days after the accident, though his doctor stated he was absent from work as of the day after the accident.  Moreover, according to Allstate's analysis of the usual and customary charges of local physicians, Miller's doctor's bill was markedly inflated.  These facts, available to Allstate at the time it was making its initial determination whether to settle Miller's claim or to pursue arbitration, raised genuine questions regarding the extent of Allstate's liability and justified its decision to arbitrate.  The specifics of this case make Allstate's general claims-handling practice in regard to soft-tissue injuries irrelevant to the question of whether Allstate handled Miller's claim in bad faith.  Miller thus was not entitled to further discovery on that issue.

17)  AMERICANS WITH DISABILITIES ACT: Keen v. Enstar Natural Gas Co., 99-36040 (9th Cir. May 5, 2000) (unpublished).  Kozinski, Rymer, and Fisher, Circuit Judges.
           The District Court for Alaska, Judge Sedwick presiding, entered summary judgment in favor of Keen's former employer, Enstar Natural Gas Company in Keen's action brought under Title VII and the Americans with Disabilities Act.
             The USCA affirmed.  Keen failed to establish a prima facie case of discrimination or a hostile work environment on account of an actual or perceived disability, or of retaliation.  Even had he established a prima facie case, he failed to raise a material question of fact that Enstar's reason for discharging him was a pretext for a discriminatory motive.

18)  AGE DISCRIMINATION / AMERICANS WITH DIS-ABILITIES ACT:  Lim v. Aurora National Life Assurance Co., 97-56546 (9th Cir. May 3, 2000) (unpublished).  Hug, D.W. Nelson, and McKeown, Circuit Judges.
           The District Court for the Central District of California, Judge Keller presiding, granted summary judgment for Aurora National Life Assurance Company.  Lim had claimed that Aurora's termination of her employment violated the Age Discrimination in Employment Act ("ADEA") and Title I of the Americans with Disabilities Act ("ADA").
            The USCA affirmed.  Lim had made out a prima facie case of age discrimination:  (1) She was 50 years old at the time of her termination;  (2) she was performing her job in a satis-factory manner;  (3) she was discharged; and (4) she presented sufficient evidence to create an inference of discrimination by showing that four younger and less qualified temporary employees were made permanent after her discharge.  Once a plaintiff has created a presumption that the employer unlawfully discriminated, the employer can rebut this presumption by articulating a legitimate nondiscriminatory reason for the discharge.  Aurora successfully does so by asserting that Lim was laid off as part of a company-wide reduction in force ("RIF") necessitated by a 1995 business down-turn.  To prevail on her claim in light of Aurora's rebuttal, Lim must show that Aurora's proffered reason is false or a pretext for a discriminatory motive.  To show pretext, Lim again invokes the statistics which purportedly show that younger workers were retained at the time of the RIF in which she was discharged.  However, the USCA noted that "a plaintiff at the pretext stage must produce evidence in addition to that which was sufficient for her prima facie case in order to rebut the defendant's showing.  There was no other direct, indirect, or circumstantial evidence in the record to indicate that Aurora's proffered reason was inconsistent or otherwise not believable.  Lim had not produced sufficient evidence to create a genuine issue of material fact that Aurora's reason for terminating her employment was a pretext.  The USCA thus affirmed the dismissal of Lim's ADEA claim.
           The USCA affirmed the district court's dismissal of Lim's ADA claim on similar grounds.  Lim had shown that at the time of her discharge, she was suffering form thyroid cancer, iron overload syndrome, and chronic anemia, and that she was adequately performing her job functions.  Moreover, on approximately ten occasions, her supervisors urged her to avail herself of the company's disability policy because of the inconvenience caused by her medical related absences.  The USCA found that this sufficed to establish a prima facie case of disability discrimination.  Aurora successfully rebutted the presumption of discrimination by asserting that Lim was laid off as part of a company-wide RIF.  To prevail, Lim had to show that this reason was a pretext for a discriminatory motive.  Other than the comments of her supervisors that she relied on to establish her prima facie case, Lim provided no other direct, indirect, or circumstantial evidence that Aurora's proffered motives were inconsistent or suspect.  To prove pretext, however, Lim had to offer evidence in addition to that which is necessary to establish a  case of discrimination.  The USCA concluded that she did not produce evidence sufficient to create a genuine issue of material fact that Aurora's reason for terminating her employment was a pretext.  The USCA thus affirmed the district court dismissal of Lim's ADA claim.

19)  EMPLOYMENT DISCRIMINATION / AMERICANS WITH DISABILITIES ACT:  Toy v. San Francisco, 99-15031 (9th Cir. May 19, 2000) (unpublished).  B. Fletcher, Alar-con, and Hawkins, Circuit Judges.
         The District Court for the Northern District of California, Judge Patel presiding, entered summary judgment in favor of the City and County of San Francisco ("defendants") on claims of discrimination and retaliation under the Americans with Disabilities Act ("ADA"), the California Fair Employment and Housing Act ("FEHA"), and the San Francisco Police Code brought by San Francisco Police Sergeant Toy. 
             The USCA affirmed.  To establish a prima facie case of discrimination under the ADA, a plaintiff must show (1) that he is disabled, (2) that he is qualified, and (3) that he suffered an adverse employment action because of his disability.  The district court found that Toy had presented no evidence to meet any of these requirements.  On appeal, Toy argued that he is disabled because even though he is not "substantially limited" in a major life activity, the defendants regarded him as such.  He also argued that he is qualified to perform the essential functions of the job.  Finally, he argued that his transfer to a position in the Warrants Bureau constituted an adverse employment action.  The USCA found that it did not need to decide whether Toy was disabled or qualified under the ADA as he had presented no evidence that he suffered an adverse employment action.  He testified that he was given no duties or responsibilities when transferred to the Warrants Bureau and that he was told to sit at a lunch table and not bother anyone.  However, he also testified that the transfer was temporary (lasting less than three months) and that it did not reduce his salary, rank or work hours.  Moreover, he testified that the defendants were in the process of transferring the duties of the Warrants Bureau to the Sheriff's Department.  Under these circumstances, the USCA could not conclude that Toy had presented evidence of an adverse employment action.  Toy maintained that Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987), supported his position.  Yartzoff held that transfers of job duties and undeserved performance ratings, if proven, would constitute adverse employment decisions.  However, the USCA found the facts of that case more serious.  The defendants transferred numerous job duties away from that plaintiff over a period of nineteen months and issued him a sub-average performance rating.  Moreover, the transfer of duties was permanent.  Here, Toy was placed in the Warrants Bureau for a short time and was soon transferred to the Records Bureau, where he was given regular duties once again.  The USCA concluded that this temporary loss of duties was not equivalent to the permanent loss of duties in Yartzoff and did not amount to an adverse employment action.  Toy thus failed to establish a prima facie case of discrimination.  Finally, to prevail on his retaliation claim, Toy had to first establish a prima facie case by showing (1) that he engaged in a protected activity, (2) that he suffered an adverse employment action, and (3) that there was a causal link between the protected activity and the adverse action.  As it had found that Toy did not suffer an adverse employment action, the USCA concluded that his retaliation claim necessarily failed.

20)  AGE DISCRIMINATION:  Livingston v. Mirage Casino-Hotel, 99-15105 (9th Cir. May 10, 2000) (unpublished).  Tashima and Graber, Circuit Judges, and Stotler, District Judge.
            The District Court for Nevada, Judge Quackenbush presiding, entered summary judgment in favor of the defendant Mirage Casino-Hotel in an action brought by Livingston under the Age Discrimination in Employment Act ("ADEA").
           The USCA affirmed.  McDonnell-Douglas Corp. Green, 411 US 792 (1973), provides a three-step framework for allocating the burdens of proof and production in discrimination claims.  Under the McDonnell-Douglas framework, Livingston had to first establish a prima facie case of discrimination.  He established a prima facie case for the purposes of summary judgment by showing that:  (1) at age forty-three, he was a member of a protected class, (2) he was performing his job in a satisfactory manner, (3) he was terminated, and (4) he was replaced by a twenty-four year old employee not in the protected class.  Because Livingston established a prima facie case of age discrimination, the burden of production shifted to the Mirage to provide evidence of a legitimate nondiscriminatory reason for the adverse employment action.  The Mirage met its burden by offering evidence that the decision to terminate Livingston was based on an outside agency's investigation, which showed that Livingston violated the "tip pool" policies of the valet parking department.  Livingston, however, failed to offer sufficient evidence to raise a triable issue as to whether the Mirage's proffered nondiscriminatory reason for his discharge was a pretext for discrimination.  To create a triable issue, at the pretext stage, Livingston had to present either some direct evidence of discriminatory motive of "specific" and "substantial" indirect evidence of pretext.  Livingston failed to do either.  He offered no direct evidence suggesting that the ultimate decisionmakers, two members of senior management, displayed any age bias.  Although Livingston alleged in his briefs that he was "framed" by his immediate supervisors, he offered no supporting evidence.  Livingston thus failed to establish a nexus between the discriminatory comments allegedly made by his immediate supervisors and senior management's decision to terminate him.  Moreover, the ultimate decisionmakers conducted an independent investigation, which directly resulted in Livingston's termination.  Thus, Livingston failed to provide any direct evidence of pretext.  Likewise, he failed to provide indirect evidence to establish a genuine issue of material fact regarding pretext.  He did not offer "specific" and "substantial" evidence that the Mirage's proffered reason for his termination, his violation of the valet parking tip pool agreement, was inconsistent or otherwise not believable.  As Livingston failed to create a triable issue regarding pretext, the district court properly granted summary judgment to the Mirage

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