)  ANTITRUST:  California Dental Association v. Federal Trade Commission, 96-70409 (9th Cir. Sept. 5, 2000).  The FTC failed to prove that a dentist trade association's advertising restrictions on member dentist were anti-competitive under the rule-of-reason analysis.  Choy and Hall (author), Circuit Judges, and Real, District Judge.  E. Dyhrkopp of Chicago, IL, for the petitioner;  M. Fried of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

2)  SECURITY EXCHANGE ACT:  Howard v. Everex Systems, Inc., 98-17324 (9th Cir. Sept. 29, 2000).  A corporate official (here, the CEO) who, acting with scienter, signs a SEC filing containing misrepresentations makes a statement so as to be liable as a primary violator under Sec. 10(b) of the Security Exchange Act if 1934;  the evidence supported a finding that the CEO acted with scienter and was a control person.  Sneed, Schroeder, and Tashima (author), Circuit Judges.  C. Peifer of Albuquerque, NM, for the plaintiff-appellant;  R. Varian and S. Farrand of  San Francisco, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

3)  TAXATION:  Agua Caliente Band of Cahuilla Indians v. Hardin, 99-55251 (9th Cir. Sept. 11, 2000).  The Eleventh Amendment did not bar an Indian tribe's declaratory/injunctive action against state officials in their official capacities alleging that federal law precluded the imposition of state's sales and use taxes on purchases of food and beverages by non-tribal members at tribal resorts on reservation land.  Trott, Fernandez, and McKeown, Circuit Judges.  A. Bunce of Escondido, CA, for the appellants;  H. Levin of Los Angeles, CA, for the appellees.   (Download the full text at www.ce9.uscourts.gov/) 

4)  INTELLECTUAL PROPERTY:  Kling v. Hallmark Cards, Inc., 99-55222 (9th Cir. Sept. 6, 2000).  The period of delay for laches for a copyright infringement claim runs only from the time the plaintiff knew or should have known about an actual or impending infringement, not an adverse claim of ownership.  Reinhardt (author) and Paez, Circuit Judges, and Dwyer, District Judge.  M. Bierman of Los Angeles, CA, for the plaintiff;  A. Pruetz of Los Angeles, CA, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

5)  INTELLECTUAL PROPERTY:  Worldwide Church of God v. Philadelphia Church of God, 99-55850 (9th Cir. Sept. 18, 2000).  The fair use doctrine does not allow appropriation of an organization's copyrighted creative work by a competing group, when the coping is verbatim and the unauthorized user stands to profit from exploiting the protected material, even if the secondary use does not harm the market for the original work;  dissenting, Judge Brunetti thought the district court did not err in finding that the competing group's distribution of the work constituted fair use.  Brunetti (dissenting) and Tashima, Circuit Judges, and Schwarzer (author), District Judge.  A. Browne of Beverly Hills, CA, for the plaintiff / counter-defendant-appellant;  M. Helm of Los Angeles, CA, for the defendant / counter-claimant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

6)  COMMUNICATIONS LAW:  US West Communications, Inc. v. Hamilton, 99-35586 (9th Cir. Sept. 13, 2000).  Under the Telecommunications Act of 1996, an incumbent local exchange carrier may be prevented from obtaining reciprocal access to the poles, ducts, conduits, and rights-of-way of a competitive local exchange carrier.  Goodwin, Graber, and W. Fletcher (author), Circuit Judges.  M. Thompson of Denver, CO, and S. Peterson of Bellevue, WA, for the appellant / cross-appellee;  T. O'Neil and D. Verrilli of Washington, DC, and D. Waggoner of Seattle, WA, for the appellees / cross-appellants;  H. Myers of Salem, OR, for appellees Ore-gon PUC and Commissioners Hamilton and Smith.   (Download the full text at www.ce9.uscourts.gov/) 

7)  ENVIRONMENTAL LAW / CERCLA:  Carson Harbor Village, Ltd. v. Unocal Corp., 98-55056 (9th Cir. Sept. 14, 2000).  Under the Comprehensive Environmental Response, Compensation and Liability Act, the definition of "disposal" encompasses the "passive" migration of hazardous substances;  dissenting, Judge Weiner did not agree that CERCLA liability extends to "passive" migration of hazardous wastes.  B. Fletcher (author) and Pregerson, Circuit Judges, and Weiner (dissenting), District Judge.  F. Gooch of Santa Monica, CA, for the plaintiff-appellant;  L. Bond, Charles Jordan, and R. Nakamura of Los Angeles, CA, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

 8)  ENVIRONMENTAL LAW:  Ninilchik Traditional Council v. USA, 99-35017 (9th Cir. Sept. 14, 2000).  The Federal Subsistence Board's reading of the term "priority" within the meaning of 16 USC Sec. 3114 (1985) as allowing it to balance the competing aims of subsistence use, conservation, and recreation, while at the same time providing subsistence hunters with a meaningful use pref-erence, is reasonable.  D. W. Nelson (author) Reinhardt, and Thomas, Circuit Judges.  W. Caldwell of Fairbanks, AK for the plaintiffs-appellants;  T. Kim of Washington, DC, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

9)  ENVIRONMENTAL LAW:  Hells Canyon Alliance v. U.S. Forest Service, 99-35675 (9th Cir. Sept. 14, 2000).  The U.S. Forest Service's recreation management plan for portions of the Snake River, a designated "wild and scenic" river, which restricts the use of motorized watercraft on part of the river, is compatible with federal environmental law.  Lay, Tashima, and McKeown (author), Circuit Judges.  P. Turcke of Boise, ID, and W. Sherlock of Eugene, OR, for the appellants;  J. Goldstein of Washington, DC, for the ap-pellees.   (Download the full text at www.ce9.uscourts.gov/) 

10)  BANKRUPTCY:  Lundell v. Anchor Construction Specialists, 98-17090 (9th Cir. Sept. 11, 2000).  Upon objection to a proof of claim filed pursuant of 11 USC Sec. 501, the burdens of proof and persuasion are on the objector.  Goodwin, Brunetti, and Thomas (author), Circuit Judges.  B. Stevens of Phoenix, AZ, and D. Golia of San Diego, CA, for the appellants / cross-appellees;  M. Grant of Phoenix, AZ, for the appellee / cross-appellant. (Download the full text at www.ce9.uscourts.gov/) 

11)  BANKRUPTCY:  In re Mizuno, 99-55237 (9th Cir. Sept. 11, 2000).  In a Chapter 11 involuntary bankruptcy in which the bankruptcy court permitted a creditor to act as the functional equivalent of a "debtor-in-possession" or "de facto trustee," prior to the appointment of a real trustee, the statute of limitations governing an adversary action by the real trustee begins to run on the date of the appointment.  Fernandez and Wardlaw, Circuit Judges, and Weiner (author), District Judge.  B. Langbery for the appellants;  J. Feder for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

12)  BANKRUPTCY:  In re TLC Hospitals, Inc., 98-16327 (9th Cir. Sept. 12, 2000).  In Chapter 7 bankruptcy proceedings, the Department of Health and Human Services properly deducted prepetition overpayments it made to a Medicare health-service provider from sums it owes the provider for post-petition services.  Canby (author) and Silverman, Circuit Judges, and Fitzgerald, District Judge.  R. Nunes of Santa Rosa, CA, for the plaintiff;  J. Clair of Washington, DC, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

13)  BANKRUPTCY:  In re Superior Stamp & Coin Company, 99-55204 (9th Cir. Sept. 6, 2000).  Where a third party lends money to a debtor on the condition that it be used to pay a specific debt, the fact that the debtor requested the loan or that the funds were advanced to the debtor rather than paid directly to the creditor did not move the transfer beyond the scope of the "earmarking" doctrine.  Reinhardt (author) and Paez, Circuit Judges, and Dwyer, District Judge.  S. Garrett of Long Beach, CA for the appellant;  G. Abrams of Tarzana, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

14)  LABOR LAW:  Aguilera v. Pirelli Armstrong Tire Corp., 98-16899 (9th Cir. Sept. 8, 2000).  State law fraud and breach of contract claims filed against their former employer by laid-off replacement workers who had been hired during a strike but later covered under a collective bargaining agreement, were preempted by Sec. 301 of the Labor Management Relations Act. Hug (author), D.W. Nelson, and McKeown, Circuit Judges.  J. Clapp of San Francisco, CA, for the appellant;  P. Ross of San Francisco, CA, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

15)  LABOR LAW / ARBITRATION:  Hawaii Teamsters and Allied Workers Union, Local 996, 99-17079 (9th Cir. Sept. 6, 2000).  In arbitrating the summary discharge of an employee covered by a collective bargaining agreement, the arbitrator had no authority to ignore the only plausible reading of the agreement that the arbitrator is limited to deciding the factual questions of whether the employee (1) committed an enumerated cardinal infraction, and (2) received a warning in the preceding nine month period.  Pre-gerson (author), Hawkins, and McKeown, Circuit Judges.  D. Rosenfeld of Oakland, CA, for the petitioner-appellant;  E. Moore of Honolulu, HI, for the respondent-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

16)  WRONGFUL TERMINATION:  Caudle v. Bristow Optical Co., 98-15537 (9th Cir. Sept. 14, 2000).  In a wrongful termina-tion action under Sec. 2000e of Title VII of the Civil Rights Act of 1964, brought for having terminated the plaintiff in the eighth month of her pregnancy, the plaintiff's post-termination voluntary withdrawal from the workforce to attend to childcare barred a recovery of lost pay during the relevant period as contrary to the employee's duty to mitigate damages by seeking alternative employment.  O'Scannlain (author), Graber, and W. Fletcher, Circuit Judges.  J. Gabroy of Tucson, AZ, for the plaintiff-appellants;  D. Selden of Phoenix, AZ, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

17)  LABOR LAW / CONTRACTS:  Pace v. Honolulu Disposal Service, Inc., 99-15796 (9th Cir. Sept. 25, 2000).  Where an alleged oral agreement directly contradicts the clear and unambiguous language of a written collective bargaining agreement ("CBA") and CBA provisions specifically disavow supplemental oral agreements, the parol evidence rule bars consideration of the oral agreement.  Pregerson, Hawkins, and McKeown (author), Circuit Judges. J. Bickerton Honolulu, HI, for the appellants; W. Fujimoto of Honolulu, HI, for the appellee.   (Download the full text at www.ce9.uscourts.gov/) 

18)  ERISA:  Aetna Life Insurance Co. v. Bayona, 99-55035 (9th Cir. Sept. 8, 2000).  A plan fiduciary may file an interpleader action under ERISA in an appropriate case to ensure the proper disbursement of life insurance policy funds under the plan.  Browning, Noonan, and Silverman (author), Circuit Judges.  R. Lapekas of Glendale, CA, for the defendant-counter-claimant-appellant;  J. Kur-zon of Los Angeles, CA, for the plaintiff-counter-defendant-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

19)  ADMIRALTY:  In the matter of The Complaint of Ross Island Sand & Gravel, 99-16031 (9th Cir. Sept. 12, 2000).  In an admiralty suit under the Limitation of Liability Act, a single claimant must stipulate to the adequacy of the limitation fund posted by the vessel's owner in order to be entitled to a stay of related state-court proceedings;  concurring, Judge Nelson thought that the rule in Newton v. Shipman, 718 F.2d 959 (1983) (per curiam), as it affects single-claimant cases stipulating to the value of the vessel is bad law and should be reconsidered.  Lay, D.W. Nelson (concurring), and Thomas, Circuit Judges.  Per Curiam.  J. Hillman for the defendant-appellant;  B. Finnegan for the plaintiff-appellee.   (Download the full text at www.ce9.uscourts.gov/) 

20)  ADMIRALTY / INSURANCE:  Quigg Bros.-Schermer v. Commercial Union Ins., 98-36070 (9th Cir. Sept. 5, 2000).  Ex-penses incurred by a barge owner in an attempt to safeguard and recover damaged barges qualified as "sue and labor" expenses recoverable under hull insurance, but not also under protection and indemnity insurance.  Reavley (author), Hall, and O'Scannlain, Circuit Judges.  D. Moran of Seattle, WA, for the appellants;  C. Penner of Seattle, WA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

21)  TORTS:  Nurse v. USA, 98-56971 (9th Cir. Sept. 12, 2000).  The "discretionary function" exception to the Federal Tort Claims Act barred a civil action against governmental policy-makers based on their alleged establishment of policies and procedures that resulted in false arrests and detentions of persons based solely on race.  Reinhardt and Berzon, Circuit Judges, and Breyer (author), District Judge.  C. Watson of Los Angeles, CA, for the plaintiff-appellant;  A. Mayorkas of Los Angeles, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

22)  INSURANCE / AMERICANS WITH DISABILITIES: Chabner v. United of Omaha Life Insurance Co., 98-17060 (9th Cir. Sept. 11, 2000).  Although the Americans with Disabilities Act does not provide a remedy for a life insurer's issuance of a policy to a disabled individual which substantially overcharged him for any increased mortality risk associated with his disability in violation of state statutory provisions prohibiting such conduct, California law provides a remedy.  Hug (author), D.W. Nelson, and McKeown, Circuit Judges.  H. Green of San Francisco, CA, for the appellants;  S. Wolinsky of Oakland, CA, for the appellees.   (Download the full text at www.ce9.uscourts.gov/) 

23)  INSURANCE:  John Deere Insurance Co. v. Nueva, 98-56464 (9th Cir. Sept. 20, 2000).  The federally mandated "MSC-90" public liability endorsement on an insurance policy issued to an interstate motor carrier creates a duty on the part of an insurer to indemnify a permissive user of a vehicle not covered by the underlying policy for injuries he negligently causes a member of the public.  Hug (author) and Ferguson, Circuit Judges, and Restani, Court of Intl. Trade Judge.  J. Leung of Oakland, CA, for the appellants;  G. Goldberg of Los Angeles, CA, for the appellee.   (Download the full text at www.ce9.uscourts.gov/) 

24)  MENTAL HEALTH WORKERS LICENSING: NAAP v. California Board of Psychology, 99-15243 (9th Cir. Sept. 29, 2000).  California's mental health licensing laws, which regulate the practice of psychology and other professions, abridge neither the plaintiffs' First Amendment rights of speech and association nor their Fourteenth Amendment substantive due process and equal protection rights;  the licensing scheme implicates no fundamental right;  substantive due process rights do not extend to the choice of type of treatment or of a particular health care providers.  Tashima (author) and Graber, Circuit Judges, and Kelleher, District Judge.  J. Love of Portland, OR, for the plaintiffs-appellants;  K. Weisel of Oakland, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

25)  EDUCATION LAW / IDEA:  Hooks v. Clark County School District, 98-17271 (9th Cir. Sept. 21, 2000).  Pursuant to the Individuals with Disabilities Education Act ("IDEA"), states have discretion in determining whether home education constitutes an IDEA-qualified "private school," and the challenged regulatory scheme does not unconstitutionally offend equal protection principles or infringe on the parents' liberty interests in guiding their child's education.  Goodwin (author), Brunetti, and Thomas, Circuit Judges.  M. Farris of Purcellville, Virginia, for the plaintiffs-appellants;  J. Okazaki of Las Vegas, NV, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

26)  EDUCATION LAW / IDEA:  Wyner v. Manhattan Beach Unified School District, 98-56853 (9th Cir. Sept. 8, 2000).  Under the federal Individuals with Disabilities Education Act, the California Special Education Hearing Office ("SEHO") lacked jurisdiction to hear issues regarding a school district's compliance with a prior final SEHO order directing the school district to comply with a set-tlement agreement.  Hug (author) and Ferguson, Circuit Judges, and Restani, Intl. Trade Court Judge.  R. Teitel of Los Angeles, CA, for the appellant;  A.  Arczynski of Ojai, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

27)  EDUCATION LAW / IDEA / ATTORNEYS' FEES: Lucht v. Molalla River School District, 99-35733 (9th Cir. Sept. 5, 2000).  Parents who prevail in a school district's Individualized Education Program meeting convened pursuant to state complaint resolution law to address the parents' allegations that the school district violated the federal Individuals with Disabilities Education Act in the course of educating their child may recover attorneys' fees for legal representation at that meeting.  Ferguson, Graber, and W. Fletcher, (author), Circuit Judges.  R. Cohn-Lee of West Linn, OR, for the defendant-appellant;  D. Taylor of Portland, OR, for the plaintiffs-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

28)  CORPORATE EXPENDITURES ON BALLOT INITIATIVES: Montana Chamber of Commerce v. Argenbright, 98-36256 (9th Cir. Sept. 26, 2000).  The First Amendment does not permit restricting direct corporate expenditures on issues presented through a state's ballot initiative process;  concurring, Judge McKeown thought to underscore that First Amendment protection of political contributions is not absolute; here the state had failed to sustain its burden of articulating a compelling interest for the restric-tions;  dissenting, Judge Hawkins offered a different route through conflicting Supreme Court opinions which he thought would be more consistent with the development of Supreme Court precedent and would reflects a more sensitive understanding of the ways in which corporate spending can distorts the electoral process.  Rymer (author), Hawkins (dissenting), and McKeown (concurring), Circuit Judges.  W. Pendley of Denver, CO, for the plaintiffs-appellants;  J. Scheier of Helena, MT, for appellant Argenbright;  D. Whyte of Helena, MT, for defendant / cross-appellant Cooney;  B. Wright of Boston, MA and J. Motl of Helena, MT, for defendant-intervenor-appellant;  S. Kaleczyc of Helena, MT and D. Cockrell of Kalispell, MT, for the plaintiffs.   (Download the full text at www.ce9.uscourts.gov/) 

29)  FAIR HOUSING ACT / FIRST AMENDMENT: White v. Lee, 99-15098 (9th Cir. Sept. 27, 2000).  A protracted and extensive investigation by the San Francisco office of the U.S. Department of Housing and Urban Development of efforts of residents of Berkeley who opposed a housing project they thought would bring substance abusers into their neighborhood, violated the residents First Amendment rights when it failed to scrutinize the objective basis of a state lawsuit the residents filed in state court to oppose their local government's approval of the project;  the HUD investigation in this case involved threats of legal sanctions and other means of coercion and intimidation that unquestionably chilled the residents' exercise of their First Amendment rights;  the unconstitutionality of each of the HUD's officials' actions was apparent at the time they acted.  Canby, Reinhardt (author), and Fernandez, Circuit Judges.  R. Loeb of Washington, DC, for the defendants-appellants / cross-appellees;  K. Marcus of Washington, DC, for the plaintiffs-appellees / cross-appellants.  (Download the full text at www.ce9.uscourts.gov/) 

30)  TRANSPORTATION LAW:  Redmond-Issaquah Railroad Preservation Association v. The Surface Transportation Board, 98-70906 (9th Cir. Sept. 14, 2000).  The Surface Transportation Board acted within its authority in rejecting an Offer of Financial Assistance regarding an abandoned railroad line based on evidence that future use of the line was extremely speculative, and that the Offer was motivated by a private organization's desire to prevent recreational development of the line, and to preserve the privacy of the organization's members, and not by an interest in continuing rail services.  Pregerson and D.W. Nelson (author), Circuit Judges, and Karlton, District Judge.  T. McFarland of Chicago, IL, for the appellant;  R. Nicholson of Washington, DC, for the appellees; B. Christian of Washington, DC, for the intervening respondent.  (Download the full text at www.ce9.uscourts.gov/) 

31)  RENT CONTROL / TAKINGS:  Chevron USA v. Cayetano, 99-15108 (9th Cir. Sept. 13, 2000).  To determine whether a state rent-control statute that proscribes the maximum rent an oil company can collect from a dealer who leases an oil company-owned service station and permits the tenant to capture a premium upon transfer of the leasehold authorizes an unconstitutional regulatory taking, a federal court must first determine whether the statute substantially advances a legitimate state interest;  while concurring in the reversal of the grant of summary jugment to Chevron, Judge Fletcher thought the issue was whether the district court should have applied the "substantially advances a legitimate state interest" test in an action challenging a rent-control law.  D.W. Nelson, Beezer (author), and W. Fletcher (concurring), Circuit Judges.  J. Rosenzweig of Honolulu, HI, for the defendants;  R. Phelps and C. Stewart of San Francisco, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

32)  CIVIL PROCEDURE / DEFENSES:  American Association of Naturopathic Physicians v. Hayhurst, 99-35823 (9th Cir. Sept. 18, 2000).  A party who raises only one defense in a motion to vacate a default judgment thereby waives all other defenses.  Alarcon, O'Scannlain (author), and Gould, Circuit Judges.  M. Dugan of Eugene, OR, for the appellants;  L. Graham of Seattle, WA, for the appellee.   (Download the full text at www.ce9.uscourts.gov/) 

33)  CIVIL PROCEDURE / SECURITIES FRAUD COMPLAINTS:Desaigoudar v. Meyercord, 98-17154 (9th Cir. Sept. 8, 2000).  A district court may dismiss a second amended complaint with prejudice for repeated failure to satisfy the pleading requirements of FRCP 9(b) and the Private Securities Litigation Reform Act of 1995.  Sneed (author), Schroeder, and Tashima, Circuit Judges.  R. Archer of Occidental, CA, for the plaintiff;  V. Wagner of Palo Alto, CA, for the defendants.   (Download the full text at www.ce9.uscourts.gov/) 

34)  DISABILITY BENEFITS:  Merrill v. Apfel, 98-36000 (9th Cir. Sept. 25, 2000).  A child applicant for SSI disability benefits who suffered from "clubbed" feet, satisfied the "marked and severe functional limitation" criterion such as to be eligible for disability benefits based on an inability to walk but could not accrue time towards the statutory 12-month durational requirement until he reached the age when a typical child can walk unassisted.  B. Fletcher, Hall (author), and Tashima, Circuit Judges.  D. Lowrey of Portland, OR, for the plaintiff-appellant;  R. Wetmore of Seattle, WA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

35)  FIRST AMENDMENT:  Downs v. Los Angeles Unified School District, 99-56797 (9th Cir. Sept. 7, 2000).  The First Amendment does not compel a public high school to share the podium with a teacher with antagonistic and contrary views when the school speaks to its own constituents on the subject of how students should behave toward each other while in school.   Trott (author), Fernandez, and McKeown, Circuit Judges.  F. Nelson of Orlando, CA, for the plaintiff-appellant;  M. Jackson of Los Angeles, CA, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/) 

36)  PROPERTY / NOERR-PENNINGTON DOCTRINE: Manistee Town Center v. City of Glendale, 99-16328 (9th Cir. Sept. 11, 2000).  The lobbying and public relations efforts of local government officials were immunized under the Noerr-Pennington doctrine from a cause of action brought by a shopping center for deprivation of property (potential lease contracts) without due process of law.  Canby (author), Reinhardt, and Fernandez, Circuit Judges.  D. Wilenchik of Phoenix, AZ, for the plaintiff-appellant;  A. Federhar of Phoenix, AZ, for the defendants-appellees.   (Download the full text at www.ce9.uscourts.gov/) 

37)  CIVIL RIGHTS:  McDade v. West, 98-56500 (9th Cir. Sept. 15, 2000).  An employee of a district attorney's office acted "under color of law" in using her access to a government computer database to determine the location of a women's shelter for the purpose of having legal process served on a resident of that shelter, namely, her husband's ex-wife.  D.W. Nelson (author), Beezer, and T.G. Nelson, Circuit Judges.  R. Hamlish of Ventura, CA, for the plaintiff-appellant;  J. Lovretovich of Ventura, CA, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

38)  IMMIGRATION LAW:  Bandari v. INS, 98-71189 (9th Cir. Sept. 26, 2000).  In asylum proceedings, an IJ's adverse credibility ruling can not be based on minor discrepancies between the alien's testimony and asylum application, on speculation about what the alien would have stated in the application if his testimony were true, or on the IJ's beliefs regarding matters lacking evidentiary support.  Hug and Ferguson (author), Circuit Judges, and Restani, Intl. Trade Court Judge.  A. Bandari pro per;  K. Larson of Washing-ton, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

39)  IMMIGRATION LAW:  Tagaga v. INS, 98-71251 (9th Cir. Sept. 21, 2000).  An alien who deserts homeland military forces that required his participation in race-based persecution of fellow citizens. and likely faces a court martial base in part on his refusal to participate in that persecution should he return home, may qualify as a refugee.  Politz, Reinhardt (author), and Hawkins, Circuit Judges.  C. Nichol of San Francisco, CA, for the petitioner;  J. Davis of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

40)  IMMIGRATION LAW / DUE PROCESS: USA v. Arrieta, 99-50368 (9th Cir. Sept. 25, 2000).  An alien's due process rights were violated when an IJ failed to inform him of his apparent eligibility for a waiver of deportation;  as the alien was prejudiced by this violation, his underlying deportation could not be used as an element of his conviction for reentering after being deported.  Ferguson (author), Boochever, and Reinhardt, Circuit Judges.  DFPD E. Newman of Los Angeles, CA, for the defendant;  AUSA J. Rosenbluth of Los Angeles for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

41)  IMMIGRATION LAW:  Cardenas-Uriarte v. INS, 97-70692 (9th Cir. Sept. 20, 2000).  For purposes of deportability an alien is eligible for "f'irst-offender" treatment under the Federal First Offender Act, if he is not deportable when a prior state conviction for simple possession of drug paraphernalia is expunged, he has not been accorded "first offender" treatment under any law, and he has satisfied the remaining requirements for such treatment.  B. Fletcher, Hawkins (author), and Thomas, Circuit Judges.  M. Franquinha of Phoenix, AZ, for the petitioner;  A. Norwood of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

42)  IMMIGRATION LAW:  Pedro-Mateo v. INS, 98-70535 (9th Cir. Sept. 14, 2000).  An alien's membership in a social/religious group whose members were forcibly recruited by both homeland insurgents and government forces, together with evidence of specific instances of attempted conscription, but absent evidence of a discriminatory purpose, was insufficient to overturn a BIA decision that the alien was not entitled to asylum on account of such membership or religion;  Judge Pregerson concurred as there was no evidence that either of the homeland forces attempted to recruit the petitioner;  thus neither of the grounds for relief raised by the petitioner on appeal, race and membership in a social group, had merit;  Judge Pregerson wrote separately to note that it was not necessary for the USCA to decide whether Mayan Indians of Guatemala comprise a "social group" within the meaning of 8 USC Sec. 1101(a)(42)(A);  he also thought this opinion did not foreclose relief to an asylum applicant who shows that an army selectively recruits members of a protected group, regardless of whether it also conscripted "a large percentage of the population of a disputed area."  (author), Pregerson (concurring), and Thomas, Circuit Judges.  D. Campbell of Santa Monica, CA, for the petitioner;  M. Gluck of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

43)  IMMIGRATION LAW:  Zahedi v. INS, 98-71179 (9th Cir. Sept. 6, 2000).  An alien who establishes by testimony and documentary evidence that authorities are actively seeking his arrest, and possible torture and execution for his part in the translation and informal distribution of a government-banned book has an objectively well-founded fear of future persecution on account of political opinion.  B. Fletcher (author), Hall, and Tashima, Circuit Judges.  N. Marchi of Seattle, WA, for the petitioner;  S. Houser of Wash-ington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

44)  IMMIGRATION LAW:  Shoafera v. INS, 98-70565 (9th Cir. Sept. 7, 2000).  An alien's uncontroverted and credible testimony that a government official in her homeland raped her because of her ethnicity established that she suffered past persecution on account of ethnicity;  dissenting, Judge Wallace disagreed with the majority's conclusions that the USCA must accept as credible the alien's testimony concerning the official's motive for raping her, and that the alien's testimony, together with her sister's, was substantial evidence that compels reversal of the BIA's denial of asylum and withholding of deportation.  Wallace (dissenting), Pregerson (author), and Thomas, Circuit Judges.  G. Silbiger of Los Angeles, CA, for the petitioner-appellant;  A. Crowley of Washington, DC, for the respondent-appellee. (Download the full text at www.ce9.uscourts.gov/) 

45)  IMMIGRATION LAW:  Andreiu v. Reno, 99-70274 (9th Cir. Sept. 8, 2000).  Under 8 USC Sec. 1252(f)(2) the limit on the power of courts to enjoin the removal of an alien applies to the temporary stay of a removal order pending resolution of a petition for review.  Beezer (author), O'Scannlain, Thomas (dissenting), Circuit Judges.  L. Joaquin of Los Angeles, CA, for the petitioner;  M. Walters of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

46)  IMMIGRATION LAW / CRIMINAL LAW: USA v. Quintana-Torres, 99-50690 (9th Cir. Sept. 15, 2000).  A deported alien's arrest within the U.S. in a place other than the border created an inference of voluntary reentry sufficient to support a conviction under 8 USC Sec. 1326(a) and (b)(2) for being a deported alien found in the U.S. after deportation.  Noonan (author), Trott, and Berzon, Circuit Judges.  AFPD S. Hubachek 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/) 

47)  IMMIGRATION LAW / CRIMINAL LAW:  USA v. Hernandez-Guardado, 99-10342 (9th Cir. Sept. 7, 2000).  Providing transportation for part of an illegal alien's migration to locations within the U.S. has a direct and substantial relationship to the furtherance of the alien's illegal presence in the United States.  Alarcon (author), O'Scannlain, and Gould, Circuit Judges.  M. Braa of Fresno, CA, for the defendants-appellants;  AUSA S. Boone of Fresno, CA, for the plaintiff-appellee.(Download the full text at www.ce9.uscourts.gov/) 

48)  POLICE IMMUNITY:  Munger v. City of Glasgow Police Dept., 98-36090 (9th Cir. Sept. 6, 2000).  Under the Due Process Clause of the Fourteenth Amendment police officers may be liable for failing to protect an individual they affirmatively place in danger;  here the officers ejected the deceased from a bar late at night when the outside temperatures were subfreezing;  he was wearing only a t-shirt and jeans;  he was intoxicated; and he was prevented by the officers from driving his truck or reentering the bar;  the offi-cers placed him in a more dangerous position than the one in which they found him.  B. Fletcher (author), Hall, and Tashima, Circuit Judges.  P. Cotter of Great Falls, MT, for the plaintiffs-appellants;  K. Meeks of Great Falls, MT, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

49)  EXCESSIVE FORCE:  Cunningham v. Gates, 98-55108 (9th Cir. Sept. 15, 2000).  In an action alleging excessive force by police during arrests, material factual disputes, e.g., whether the officers had probable cause to use deadly force, deprived the USCA of jurisdiction to review whether the officers were entitled to qualified immunity;  non-shooting and non-present officers could not be held liable for failing to intercede to the prevent the shooting of the plaintiffs.  Hawkins, Magill (author), and Thomas, Circuit Judges.  L. Berger of Los Angeles, CA, for the defendants;  S. Yagman of Venice, CA, for the plaintiffs. (Download the full text at www.ce9.uscourts.gov/) 

50)  RIGHT TO COUNSEL:  USA v. Vonn, 98-50385 (9th Cir. Sept. 14, 2000).  A district court's error in failing to inform a criminal defendant of his continuing right to an attorney at trial prior to accepting his guilty plea was not made harmless by the defendant's assignment of a lawyer for the plea hearing.  Browning, Kozinski (author), and Wardlaw, Circuit Judges.  AUSA E. Lu of Los Angeles, CA, for the plaintiff-appellee;  DFPD E. Uhrig of Los Angeles, CA, for the defendant-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

51)  CRIMINAL PROCEDURE / JURISDICTION: USA v. Liang, 99-10578 (9th Cir. Sept. 13, 2000).  18 USC Sec. 3238, which prescribes venue for offenses committed on the high seas or elsewhere out of the jurisdiction of any particular state or district, does not apply to an individual who is first intercepted in one U.S. district and then transferred to another for trial.  Lay, D.W. Nelson (author), and Thomas, Circuit Judges.  J. Horey for the appellant;  AUSA G. Baka of the CNMI for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

52)  SEARCH & SEIZURE:  USA v. Tiong, 99-30167 (9th Cir. Sept. 6, 2000).  Border patrol agents had a sufficiently articulated basis for reasonable suspicion to stop a motorist who, contrary to his stated destination, turned off a highway onto a little-used road going towards a reasonably suspected smugglers' rendezvous and later returned with a passenger.  Trott, Kleinfeld (author), and Sil-erman, Circuit Judges.  AUSA J. Harrington of Spokane, WA, for the plaintiff-appellant;  C. Oreskovich of Spokane, WA, for the defendant-appellees(Download the full text at www.ce9.uscourts.gov/) 

53)  SEARCH & SEIZURE:  USA v. Reilly, 99-10360 (9th Cir. Sept. 11, 2000).  The continued questioning of an in-custody defendant who had requested counsel which resulted in his giving consent to a search of his apartment, violated his constitutional rights;  the "inevitable discovery" doctrine exception to the exclusionary rule did not apply where the officers failed to exercise an opportunity to obtain a search warrant and nothing outside that improper search supported the discovery of the challenged evidence.  Lay (author), D.W. Nelson, and Thomas, Circuit Judges.  C. Fischer of Phoenix, AZ, for the defendant;  AUSA L. Boone of Phoenix, AZ, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

54)  SEARCH & SEIZURE:  Mena v. City of Simi Valley, 99-56720 (9th Cir. Sept. 22, 2000).  A search warrant for a single-family residence was not overbroad merely because the officer who prepared the supporting affidavit knew that a large number of persons lived in the structure, and that it contained rooms adjacent to the living room that were padlocked from the outside;  the officers as a matter of law were entitled to qualified immunity with regard to the claim that the search warrant was overbroad.  Noonan, Trott (author), and Berzon, Circuit Judges.  K. Peabody of Santa Barbara, CA, for the defendants-appellants;  J. Muller of Los Angeles, CA, for the plaintiffs-appellees.(Download the full text at www.ce9.uscourts.gov/) 

55)  WARRANTLESS SEARCHES:  USA v. Reid, 99-50067 (9th Cir. Sept. 14, 2000).  It was unreasonable for police officers to believe that an occupant of an apartment, whom the officers could not reasonably believe was a resident of the apartment, had authority to consent to a search of that apartment;  dissenting, Judge Wardlaw thought that under the facts of this case the occupant had apparent authority to consent to the search and he could not find that the district court's contextual analysis of the voluntariness of that consent was mistaken.  Pregerson (author) and Wardlaw (dissenting), Circuit Judges, and Shadur, District Judge.  M. Hall of San Diego, CA, for the defendants;  AUSA R. Cheng of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

56)  EVIDENCE:  USA v. Foster, 99-50503 (9th Cir. Sept. 13, 2000).  In impeaching a defendant's testimony, the crime of receiving stolen property does not per se constitute a crime of dishonesty under FRE 609(a)(2).  Thompson, W. Fletcher, and Fisher (author), Circuit Judges.  M. Garcia of San Diego, CA, for defendant;  AUSA G. Hardy of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

57)  EVIDENCE:  Laboa v. Calderon, 99-15816 (9th Cir. Sept. 11, 2000).  The erroneous admission of a codefendant's involuntary confession was harmless as it did does not have a substantial and injurious effect on the jury's verdict;  dissenting, Judge Nelson thought the majority relied on the wrong prejudice standard in reviewing the defendant's ineffective assistance of counsel claim.  Hug (author), D.W. Nelson (dissenting), and McKeown, Circuit Judges.  E. Multhaup of Mill Valley, CA, for the appellant;  W. Campbell of Sacramento, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

58)  EVIDENCE / DUE PROCESS:  Dubria v. Smith, 98-55914 (9th Cir. Sept. 11, 2000).  The defendant failed to meet the standard that the admission of an unredacted tape and transcript of his pre-arrest interview with an investigating officer "so fatally infected the proceedings as to render them fundamentally unfair;"  dissenting, Judge Pregerson thought that admitting the tape and transcript, which contained long and inflammatory statements by an investigator about the defendants guilt, violated the defendant's due process right to a fair trial.  Hug, Schroeder, Pregerson (dissenting), Fernandez, Rymer, T.G. Nelson, Kleinfeld, Hawkins (author), Thomas, Graber, and Gould, Circuit Judges.  C. Sevilla of San Diego, CA, for petitioner;  F. Millar of San Diego, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

59)  EVIDENCE:  USA v. Edwards, 99-30143 (9th Cir. Sept. 7, 2000).  It was prejudicial to admit evidence of a bail receipt linking the defendant to a seized bag of drugs after the prosecutor, outside the courtroom, had tampered with the bag, which had been introduced as evidence.  Pregerson and D.W. Nelson, Circuit Judges, and L. Karlton, District Judge.  Per Curiam.  P. Avenia of Tacoma, WA, for the defendant-appellant;  AUSA T. Ohms of Spokane, WA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

60)  EVIDENCE:  USA v. Velarde-Gomez, 99-50602 (9th Cir. Sept. 13, 2000).  The district court erred in allowing comment on the defendant's post-arrest, pre-Miranda silence, even though he subsequently waived his right to remain silent and gave a statement to customs agents.  Wallace (author), Trott, and Gould, Circuit Judges.  T. Goodman of San Diego, CA, for defendant;  AUSA M. Quinn of San Diego, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

61)  JURY INSTRUCTIONS:  USA v. Sager, 99-50330 (9th Cir. Sept. 22 2000).  The district court committed plain error and abused its discretion by instructing the jury not to "grade" a government investigation;  to tell the jury that it may assess the product of an investigation but not also analyze the quality of the investigation that produces that product, removes from the jury potentially relevant information.  Noonan, Trott (author), and Berzon, Circuit Judges. J. Rochlin of Los Angeles, CA, for the defendant;  AUSA R. Kramer of Los Angeles, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

62)  CONSPIRACY:  USA v. Recio, 99-30135 (9th Cir. Sept. 27, 2000).  The defendants' words and conduct revealing only "general guilt" regarding a pre-seizure conspiracy to possess with the intent to distribute illegal drugs were insufficient to establish guilt on the conspiracy;  dissenting, Judge Gould thought the majority had invaded the province of a jury when it found the evidence in the first trial insufficient;  he thought there was sufficient evidence to show a serious criminal conspiracy in which the defendants were involved before the drugs were seized.  Browning (author), B. Fletcher, and Gould (dissenting), Circuit Judges.  M. Shurtliff of Caldwell, ID, for the defendant;  AUSA A. Burrow of Boise, ID, for the plaintiff.(Download the full text at www.ce9.uscourts.gov/) 

63)  COMPETENCY:  Torres v. Prunty, 99-55662 (9th Cir. Sept. 8 2000).  Under Pate v. Robinson, 383 US 375 (1966), a state defendant was entitled to a competency hearing as there was evidence before the trial court that his unfeigned extreme "psychotic delusions" included that the court and defense counsel were conspiring against him.  Canby (author), Reinhardt, and Fernandez, Circuit Judges.  K. Brodie of Los Angeles, CA, for the respondent;  M. Drath of Sausalito, CA, for the petitioner.(Download the full text at www.ce9.uscourts.gov/) 

64)  GUILTY PLEAS / SOCIAL SECURITY BENEFITS:USA v. Littlejohn, 99-50417 (9th Cir. Sept. 11, 2000).  In order to render a defendant's plea knowing and voluntary, the district court must warn the defendant that pleading guilty to certain specified felony offenses (e.g., the distribution of a controlled substance) will render him ineligible for certain food stamps and social security benefits;  dissenting, Judge Noonan thought that the majority's statements constituted dicta as they did not control the outcome of the appeal;  moreover, he thought they were made in a case where the court has no jurisdiction as the defendant had entered into a plea agreement in which he pleaded guilty to the distribution of less than 50 grams of cocaine and also gave up "the right to appeal any sentence imposed, and the manner in which the sentence is determined, provided that the defendant is sentenced within the statutory maximum and his term of imprisonment is 240 months or less."  The appeal, Judge Noonan thought, was a "thinly-disguised end run around the plea agreement."  Noonan (dissenting), Trott (author), and Berzon, Circuit Judges.  G. Fusilier of Carlsbad, CA, the defendant-appellant;  AUSA J. Friedberg of Los Angeles, CA, for the plaintiff-appellee. (Download the full text at www.ce9.uscourts.gov/) 

65)  SENTENCING:  USA v. Egge, 98-30322 (9th Cir. Sept. 15, 2000).  Drug users who are mere end users, and who buy their drugs from a seller who is convicted of conspiracy to distribute the controlled substance under 21 USC Sec. 846, are not "participants" in the criminal activity for purposes of the Sentencing Guideline Sec. 3B1.1(b) enhancement for having a role in the offense.  Reavley, Hall (author), and O'Scannlain, Circuit Judges.  D. Caughlan of Butte, MT, for the defendant;  AUSA K. McLean of Missoula, MT, for the plaintiff.(Download the full text at www.ce9.uscourts.gov/) 

66)  SENTENCING:  USA v. Working, 98-30121 (9th Cir. Sept. 11, 2000).  Sitting en banc, the USCA ruled that resentencing was required where a district court failed to explain its reasons for a 21-level downward departure in sentencing a wife for an assault on her husband with the intent to commit murder based upon the district court finding that the wife's behavior was "aberrant";  dissenting, Judge Wardlaw, joined by Judge Kleinfeld, thought the district court was wrong to find that this case lay outside the heartland of attempted murder cases and wrong to depart 21 levels to sentence the wife to but one day in prison.  Hug, Browning, Schroeder, Preger-son, Reinhardt, Kleinfeld, Hawkins, Silverman (author), McKeown, Wardlaw (dissenting), and W. Fletcher, Circuit Judges.  K. Hoppmann of Washington, DC, for the plaintiff-appellant / cross-appellee;  W. Fricke of Tacoma, WA, for the defendant-appellee / cross-appellant. (Download the full text at www.ce9.uscourts.gov/) 

67)  SENTENCING:  USA v. Nordby, 99-10191 (9th Cir. Sept. 11, 2000).  Under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the amount of drugs for which a defendant is sentenced under 21 USC Sec. 841(b)(1) is a fact that must be submitted to a jury and proven beyond a reasonable doubt;  concurring, Judge Reinhardt wrote separately to explain the nature of the harmless error test described here, while noting that the more stringent test for harmless error of USA v. Neder, 527 US 1 (1999), had been satisfied and thus whether a less stringent test applied was not resolved.  Canby (author), Reinhardt (concurring), and Fernandez, Circuit Judges.  AUSA J. Wilson of San Francisco, CA, for the plaintiff-appellee;  L. Leavitt of San Francisco, CA, for the defendant-appellant.  (Download the full text at www.ce9.uscourts.gov/) 

68)  SENTENCING:  USA v. Garcia-Guizar, 99-10435 (9th Cir. Sept. 20, 2000).  The district court did not evidence vindictiveness or violate due process when on resentencing it corrected an error in the method of calculating the amount of drugs establishing the defendant's base offense level at his original sentencing, with the result that the defendant's new sentence was 33 months longer than his original sentence.  Canby (author), Reinhardt, and Fernandez, Circuit Judges.  AFPD A. McClintock of Sacramento, CA, for the defendant;  AUSA W. Wong of Sacramento, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

69)  SENTENCING:  USA v. Mathews, 98-10499 (9th Cir. Sept. 14, 2000).  The imposition of an Armed Career Criminal enhancement was an error of law where the defense had challenged the enhancement on the grounds that the earlier convictions were not qualifying offenses but the court failed to examine those convictions prior to the enhancement;  even assuming that the district court erred in applying the enhancement, Judge O'Scannlain did not concur in the "drastic step" of remanding for resentencing;  there was, he thought, no reason for deviating from the USCA's "general practice" of allowing the district court to conduct further appropriate proceedings on remand for the purposes of resentencing. B. Fletcher (author), Canby, and O'Scannlain (dissenting in part), Circuit Judges. FPD F. Forsman of Las Vegas, NV, for the defendant; AUSA K. Landreth of Las Vegas, NV, for the plaintiff.(Download the full text at www.ce9.uscourts.gov/) 

70)  HABEAS CORPUS:  Green v. White, 99-17653 (9th Cir. Sept. 5, 2000).  The Anti-Terrorism and Effective Death Penalty Act's one-year limitation does not constitute a per se violation of the Suspension Clause as it is not jurisdictional and may be subject to equitable tolling.  Thompson, T.G. Nelson (author), and Silverman, Circuit Judges.  F. Prantil of Sacramento, CA, for the petitioner;  D. Gillette of San Francisco, CA, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

71)  PROBATION:  USA v. Sumner, 99-10523 (9th Cir. Sept. 12, 2000).  Under the Federal Youth Corrections Act, a district court lacks jurisdiction or equitable authority to expunge a final criminal conviction when the youthful offender has not received an early unconditional release from probation, or has failed to receive one due to oversight.  Alarcon (author), O'Scannlain, and Gould, Circuit Judges.  AFD A. Voris of Fresno, CA, for the defendant;  AUSA V. Santos of Fresno, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

 1)  INTELLECTUAL PROPERTY:  Lanard Toys v. P.C. Woo, Inc., 99-55552 (9th Cir. Sept. 19, 2000) (unpublished).  Browning, T.G. Nelson, and Silverman, Circuit Judges.
            The District Court for the Central District of California, Judge Moreno presiding, denied Lanard Toys ("Lanard") leave to file an amended and supplemental complaint and to extend the discovery deadline, granted summary judgment in favor of P.C. Woo, Inc. d/b/a Megatoys, Tak Kwan (Peter) Woo, and Charles Woo, denied reconsideration of the summary judgment, and awarded attorneys' fees.  Lanard asserted claims of unfair competition, copyright infringement, and trade dress infringement all arising out of the defendants' alleged production, marketing, and sale of a knock-off garden tool toy set. 
             The USCA affirmed.  As the district court had issued a Rule 16 scheduling order and the time to file the amended complaint had come and gone, Lanard had to show good cause to extend the time.  It failed to do so.  The district court thus did not abuse its discretion in denying leave to amend or supplement the complaint.  The defendants moved for summary judgment on the ground that they never produced, marketed, or sold the accused product.  Lanard conceded that P.C. Woo and Charles Woo were not involved and proposed to dismiss them without prejudice.  But Lanard argued that Peter Woo was involved in both the sale and marketing of the product.  Lanard's opposition to summary judgment was supported by a document purporting to list the incorporating details of Polyfect and a declaration executed by attorney Rohm.  The district court rule both exhibits inadmissible;  the corporate details document was not properly authenticated and the declaration did not comply with 28 USC Sec. 1746 and Rule 56 because it was not based on personal knowledge.  The district court did not abuse its discretion when it ruled that the unauthenticated corporate details document was inadmissible.  Nor did it abuse its discretion when it failed to consider Rohm's account of certain deposition testimony in lieu of the deposition testimony itself.  As it was undisputed that Rohm had no personal knowledge of the events to which the deponent testified, the district court properly rejected Rohm's declaration.  Lanard argued that the district court erred because Peter Woo could have been liable for vicarious and contributory infringement.  Because Lanard had not raised these theories before the trial court in its opposition to summary jugment, the USCA declined to address them.  Lanard also argued that the district court erred in denying its FRCP. 56(f) motion.  Because Lanard failed to show that it pursued its previous discovery opportunities diligently and that further discovery would have precluded summary judgment, the district court did not abuse its discretion in not extending discovery.  It also did not abuse its discretion when it denied reconsideration of its summary judgment because Lanard's motion was based on law and facts already available, or that reasonably could have been available to Lanard at the time it filed its opposition to the summary judgment motion.  Finally, the USCA noted that a prevailing party is not automatically entitled to an award of fees in a copyright action.  Rather, a district court should exercise its equitable discretion in light of the factors set forth by the Supreme Court, and apply such factors in an even-handed manner to prevailing plaintiffs and defendants. Fogerty v. Fantasy, Inc. 510 U.S. 517 (1994). These factors include, but are not limited to, the degree of success obtained by the prevailing party, the frivolousness of the action, the motivation of the parties, the objective reasonableness of the legal and factual arguments in the case, and the need in particular circumstances to advance considerations of compensation and deterrence.  The Woo defendants sought attorneys' fees of $132,528 and costs of $9,256.99.  The court reviewed the materials submitted and awarded fees of $80,904.75 and costs of $3,085.66.  The district court considered the factors out-lined by the Supreme Court in Fogerty, and did so in light of the objectives of the Copyright Act.  Contrary to Lanard's argument, "a finding of bad faith, frivolous or vexatious conduct is no longer required; and awarding attorney's fees to a prevailing defendant is within the sound discretion of the district court informed by the policies of the Copyright Act.  The USCA concluded that the district court did not abuse its discretion when it awarded the defendants attorneys' fees and costs.  With respect to the amount awarded, the USCA noted that it is well established that a district court must articulate with specificity whey the amount is reasonable.  Here it reviewed the defendants' application for fees and costs and articulated its reasons for the amount awarded.  It considered whether the requested lodestar was appropriate, assessed whether the amount of time each attorney claimed was justified, and determined whether proper documentation was submitted to support the costs requested.  It thus did not abuse its discretion when its awarded the defen-dants fees of $80,904.75 and costs of $3,085.66.  That the defendants were forced to incur expenses of that magnitude in the defense of an $8,200 claims was no fault of theirs.  The defendants also requested attorneys' fees and costs on appeal.  Considering the factors set forth in Fantasy, Inc. v. Fogerty, 94 F.3d 553 (9th Cir. 1996), the USCA held that fees and costs were warranted and would serve the purposes of the Copyright Act.  The USCA referred the case to the Appellate Commissioner for a recommendation as to the reasonable amount of fees.

2)  TAXATION:  Smith v. USA, 99-35817 (9th Cir. Sept. 26, 2000) (unpublished).  Wallace, Fernandez, and McKeown, Circuit Judges.  The District Court for Oregon, Judge Hogan presiding, entered summary judgment for the defendant in Smith's 26 USC Sec. 7433 action alleging that the U.S. failed to follow proper procedures in collecting taxes from Smith. 
           The USCA affirmed.  As the Forms 4340 indicate that notice and demand for payment was properly made under 26 USC Sec. 6303(a) for the tax years covered in the notices of lien and Smith failed to present any evidence to the contrary, the district court correctly granted summary judgment for the United States. 

3)  TAXATION:  McCarty v. Burdick, 98-17377 (9th Cir. Sept. 22, 2000) (unpublished). Wallace, Fernandez, and McKeown, Circuit Judges.
             The District Court for the Eastern District of California, Judge Coyle presiding, dismissed McCarty's action under 42 USC Sec. 1983 against IRS Special Agent Burdick and AUSA Kalmanir, alleging various constitutional violations during the criminal prosecution and plea agreement in McCarty's criminal case for attempted tax evasion, his sentence of probation and payment of restitution, his subsequent pending criminal indictment against McCarty, and the attempts to extradite him from Mexico for prosecution.  The USCA affirmed.  As McCarty failed to allege that his conviction had been invalidated, he could not yet pursue his wrongful conviction claim.  Nor could he attack his current prosecution.  The USCA construed the dismissal of these claims as without prejudice.  The USCA also found that the district court had properly ordered the dismissal of McCarty's remaining claims as barred by the one-year statute of limitations.

4)  BANKRUPTCY:  In re Leff, 98-56974 (9th Cir. Sept. 31, 2000) (unpublished).  Canby and W. Fletcher, Circuit Judges, and Sedwick, District Judge.
           Debtor Leff appealing pro se, challenged a decision of the Bankruptcy Appellate Panel ("BAP").  The BAP affirmed the bankruptcy court's decision to grant appellee Arai's motion to amend a discharge order, under Bankruptcy Rule 9024, to exclude from discharge a $2,543,000 district court judgment entered in Arai's favor.
           The USCA affirmed.  Leff maintained that the district court lacked subject matter jurisdiction to amend its order of dismissal to enter a stipulated judgment against Leff when he failed to satisfy the conditions of the settlement.  Relying on Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994), Leff argued that the district court lacked jurisdiction as it failed to reserve jurisdiction to enforce the settlement agreement.  Based on the Kokkonen analysis, Leff argued that the BAP erred because it affirmed the bankruptcy court's decision which relied upon the allegedly invalid district court judgment.  In Leff's view such a "void" judgment cannot be used for any purpose by the bankruptcy court or the BAP.  However, the USCA noted that Leff is precluded from collaterally attacking the district court's subject matter jurisdiction because he appeared in district court and had an opportunity to make such a argument to the district court, but failed to do so.  Leff also failed to appeal from the district court's judgment.  Moreover, there was no lack of underlying subject matter jurisdiction shown on the record because diversity of citizenship existed.  The USCA thus found Leff's position to be meritless.  The USCA concluded that Leff could not attack the district court's jurisdiction in the collateral bankruptcy proceeding.  Left next argued that the bankruptcy court abused its discretion by granting Arai's motion to amend the discharge order pursuant to Rule 9024 to exempt from discharge the $2,543,000 district court judgment.  The USCA's review was for an abuse of discretion;  Rule 9024 incorporates FRCP 60.  The USCA found no abuse of discretion by the bankruptcy court in amending the discharge order.  The bankruptcy could also did not err by accepting the district court's nondischargeability determination as conclusive when granting the Rule 9024 motion.  Pursuant to 28 USC Sec. 1334, the district court has original jurisdiction over title 11 cases.  The district court, however, has routinely referred title 11 matters to the bankruptcy court.  The Central District of California made such a reference by an order dated July 20, 1984.  The USCA also noted that the district court could withdraw this reference to the bankruptcy court for cause.  In Leff's case, the district court did not explicitly withdraw the reference.  Yet, the USCA found persuasive Arai's and the BAP's reasoning that the district court withdrew by implication its reference to the bankruptcy court.  There was good cause because the implied withdrawal served judicial economy and avoided duplicative proceedings.  It would be redundant to require the bankruptcy court to enter a default judgment in the adversary proceeding when the district occur judge had already decided the case.  Moreover, upon the district court's inquiry regarding the bankruptcy implications, Leff's counsel assured the court that nothing more was required from the bankruptcy court.  The USCA interpreted the stipulated judgment entered by the district court as implicitly withdrawing reference to the bankruptcy court for purposes of determining dischargeability.  The USCA also noted that, rather than affirming the bankruptcy court's decision to amend the discharge order we could, as the BAP recognized, reversed and remanded for the entry of a default order in the adversary proceeding, which was never dismissed.  Yet, the USCA noted that under the facts of this case, the effect is the same whether it reverse and remand for the entry of default or let the amendment to the discharge stand.  As it would be wasteful of judicial resources to reverse and remand for a default judgment, the USCA upheld the BAP's decision.

5)  BANKRUPTCY:  In re Silberman, 98-16593 (9th Cir. Sept. 27, 2000) (unpublished).  Schroeder, Beezer, and Trott Circuit Judges.
           The District Court for the Northern District of California, Judge Armstrong presiding, affirmed a final judgment of the bankruptcy court entered in favor of Maxfield in an adversary proceeding arising out of Silberman's Chapter 13 bankruptcy.  Herein at issue is the validity of Maxfield's sale of Silberman's thoroughbred horses under California's Livestock Service Lien Law, California Civil Code Secs. 3080-3080.22.  The bankruptcy court approved the sale and distributed all of the proceeds to Maxfield, and the district court affirmed.
           The USCA vacated and remanded.  Although Silberman was unquestionably indebted to Maxfield, the bankruptcy court failed to fix the amount of that debt.  There was thus no basis upon which to evaluate whether the sale complied with the lien law.  Under Sec. 3080.01, a livestock service lien serves primarily to secure "the owner's contractual obligations to the lienholder for the provision of livestock services."  In order to determine the amount secured by the lien, a court must first determine the amount owned under the contract.  The bankruptcy court made no such determination.  Instead, it simply accepted the $3,333 sum identified in the state court order authorizing sale.  There are, the USCA noted, two problems with the bankruptcy court's deference to the state court's order.  First, it is clear that the bankruptcy court deferred solely because it believed itself bound by the state court's order.  This belief was erroneous;  the bankruptcy court was not bound by the state court's order because there was never a final judgment entered in the state court action.  The bankruptcy court's mistaken view of the binding nature of the state court order infected the entire course of proceedings.  For instance, the court plainly erred in stating that "Maxfield cannot have any liability for following the express order of the state court."  Whether Maxfield complied that the state court's order is a wholly separate question from whether the sale of the horses complied with the lien law.  The second problem with the bankruptcy court's acceptance of the $3,333 sum contained in the state court's order is that the record evidence demonstrates that the sum was based on Maxfield's unilateral imposition of a per diem rate that far exceeded the monthly fee of $500 established in the boarding contract.  If the parties agreed to a per diem rate which supports the state court's award, where should be evidence in the record of such agreement.  In the absence of an independent finding by the bankruptcy court as to the contractual amount secured by the lien, the USCA said it was unable to evaluate claims dependent upon that lien.  It thus vacated the district court's judgment and remanded with instructions to the bankruptcy court to make the necessary factual findings and to reconsider the parties' arguments in light of those findings.

6)  BANKRUPTCY:  In re Fogh, 00-35213 (9th Cir. Sept. 26, 2000) (unpublished).  Wallace, Fernandez, and McKeown, Circuit Judges.  Fogh appealed pro se the judgment of the District Court for the Western District of Washington, Judge Pechman presiding, which affirmed the bankruptcy court's order dismissing Fogh's adversary proceeding alleging that the defendants violated her constitutional rights in prior state court proceedings.  The USCA reviewed the bankruptcy court's dismissal de novo without deference to the district court's decision, and affirmed on alternative grounds contained in the record.  Because the court lacked jurisdiction to review Fogh's collateral attacks on her prior state court judgments, it properly dismissed her action.  Moreover, because the Lane County Circuit Court was entitled to Eleventh Amendment immunity and the individual judges were entitled to judicial immunity, the court properly dismissed Fogh's action against those defendants.  The USCA also agreed that the claims against the remaining defendants were barred by res judicata and collateral estoppel.

7)  BANKRUPTCY:  In re Hicks, 99-17612 (9th Cir. Sept. 25, 2000) (unpublished).  Wallace, Fernandez, and McKeown, Circuit Judges.  Chapter 7 debtor Hicks appealed pro se from an order of the District Court for Arizona, Judge Silver presiding, which affirmed the bankruptcy court's summary dismissal of Hick's adversary action to recover funds the Internal Revenue Service collected by levy upon this property.  The USCA affirmed.  Upon review of the records, it concluded that summary judgment was proper because Hicks failed to present sufficient evidence to create a genuine issue of material fact for any of his claims.  His contention that he was deprived of due process by the bias of the district court judge lacked merit as the allegations stemmed entirely from that judge's adverse rulings.  His contention that he was deprived of due process by the bias of Justice Department counsel was not supported by the record.

8)  WRONGFUL DISCHARGE:  Mathis v. State Farm Mutual Automobile Ins. Co., 98-36001 (9th Cir. Sept. 5, 2000) (unpubished). Reavley, O'Scannlain, and Gould, Circuit Judges. 
           The District Court for the Western District of Washington, Judge Zilly presiding, entered summary judgment for State Farm Mutual Automobile Insurance Company in Mathis' suit alleging that State Farm had wrongful terminated his employment in violation of public policy.
            The USCA affirmed.  State Farm fired Mathis in November 1998 for alleged misconduct.  Mathis argued that this was a pretext and that he was actually fired because he refused to use CMR, an insurance claim review company, and he refused to cooperate in State Farm's alleged misrepresentation to the court that a class of policy holders with potential claims against State Farm in a lawsuit called the "Fee Facts" litigation was too large and arduous to identify.  Mathis maintained that both of these reasons violated public policy.  The USCA found that Washington law applied and that under Gardner v. Loomis Armored Inc., 128 Wash. 2d 931 (1996), the test for wrongful discharge against public policy is:  (1) the plaintiff must prove the existence of a clear public policy;  (2) the plaintiff must prove that discouraging the conduct in which he engaged would jeopardize that public policy;  (3) the plaintiff must prove that the public policy-linked conduct caused the dismissal; and (4) the defendant must not be able to offer an overriding justification for the dismissal.  Under Gardner, Mathis has the burden of proving that he was wrongfully discharged because of "public policy-linked conduct" and also had the burden of coming forward with specific facts showing the existence of a genuine issue for trial.  The USCA concluded that even giving Mathis all reasonable inferences, he could not satisfy Gardner's third requirement as he did not allege specific facts establishing a causal connection between his termination and his choice not to use CMR as a State Farm vendor.  His termination occurred after he chose not to use CMR as a vendor, but that alone or combined with speculation could not be sufficient to establish a causal connection between his choice and the termination.  Mathis acknowledge in his deposition that his supervisor did not direct him to use CMR;  his mere belief that his termination was based on his refusal to use CMR, without evidence of causation, was inadequate.  Mathis also argued that his termination was a product of his disinclination to cooperate with State Farm in withholding documents in the "Fee Facts" litigation.  He says he was terminated because he learned of alleged misrepresentation by State Farm in that litigation.  The USCA noted that even if it assumed these allegations to be sufficient to raise public policy violations recognized by Washington law, there was a failure of proof that the termination was causally related to the alleged knowledge and lack of cooperation by Mathis on this issues.  The record as summarized in the district court's order suggests that the purported list of policy holders was identified by counsel in that litigation and did not include identification of those who had reimbursements reduced by Fee Facts.  In any event, Mathis' evidence did not establish that a fraud occurred in that litigation.  Most importantly, Mathis clearly did not present a genuine issue of material fact as to whether he was terminated because of his role in that litigation.  Mathis did not submit specific facts proving that his alleged alerting of State Farm to the possibility that the complete Fee Facts class allegedly could be identified was the reason he was terminated.  Mathis also claimed that State Farm committed the tort of outrage and negligent infliction of emotional distress by falsifying evidence about his job performance to justify her termination.  The facts alleged and presented did not make out the extreme conduct sufficient to claim outrage.  Moreover, the district court properly concluded that the evidence did not support a claim for negligent infliction of emotional distress under state law.  Because those claims were not supported by specific and adequate facts in the record, they were insufficient to create a genuine issue of material fact.  Additionally, Mathis asserted that State Farm breached employment promises, but that claim also was not supported by fact that would establish an implied employment contract under Washington law.  The facts submitted by Mathis were inadequate under Washington law to establish breach of any employment agreement, as was fully and well-explained in the district court's order granting summary judgment.  Finally, the district court did not abuse its discretion by granting a two week extension of time for Mathis to conduct supplemental discovery related to the motion.  Mathis had adequate time to respond, and the order he challenged provided a reasonable additional time in view of the vague request in his submission to the court without adequate justification for more time.

9)  MARITIME:  TCW Special Credits v. Barandiaran, 99-15750, 99-15905 (9th Cir. Sept. 8, 2000) (unpublished).  Pregerson, Hawkins, and McKeown, Circuit Judges. 
           Following a post-remand bench trial the District Court for Guam, Judge Unpingco presiding, issued an order and judgment which former crew members of the fishing vessel Chloe Z appealed.  They claimed that the court erred in reading TCW Special Credits v. Chloe Z Fishing Co., 129 F3d 1330 (9th Cir. 1997) (Chloe I) as establishing a "same rating or similar duties" test for wage claims under 46 USC Sec. 11101, in denying any wages to the vessel's master, in calculating pre-judgment interest from the date of intervention rather than from the date of injury, and in refusing to permit evidence or argument during the post-remand trial related to the crew members' requests for attorneys' fees.  TCW Special Credits ("TCW") cross-appealed the district court's refusal to offset settlement payments made to several crew members against the judgment, as well as its decision to award the crew members wages in quantum meruit for port time following Trip No. 29.
            The USCA affirmed in part, reversed in part, and remanded for further proceedings. Chloe I held that because the crew members were engaged as seamen contrary to law due to the absence of written fishing employment agreements required by 46 USC Sec. 10601(a), they were entitled to recover wages based on the higher of either the "highest rate of wages at the port from which the seaman was engaged" or the amount originally agreed upon the time of engagement.  The USCA construed the phrase "highest rate of wages" to refer to "those wages a seaman of equal rating could command at the same port of hire," noting that the wages of a "seaman of equal rating" are measured by comparing the wages of a seaman with the "same rating or similar duties."  Contrary to the crew members' position, the USCA's use of the term "rating" did not incorporate U.S. Coast Guard Ratings as the sole factor to be consid-ered in determining the wages of a comparable seaman under Sec. 11107.  It was not erroneous for the district court to conclude that the crew members had not presented sufficient evidence to establish the highest rate of wages for seamen with the same rating or similar duties at the port of engagement.  The USCA thus affirmed the district court's decision to base the award on each crew member's orally agreed upon wage rate.  However, the USCA reversed the district court's decision not to award wages under Sec. 11107 to the vessel's master, Canepa.  The USCA did not read Sec. 11107 to preclude an award of wages to Canepa simply as he had not signed written agreement.  Although it is the master who facilitates compliance with Sec. 10601, written fishing agreements are in fact between the vessel's owner and individual crew members.  Similar to the situations of the other crew members, the lack of a written agreement between Canepa and the vessel's owners rendered his engagement contrary to law, permitting him to avail himself of the relief provided by Sec. 11107.  The USCA concluded that the district court did not abuse its discretion in calculating pre-judgment interest from the date of intervention, nor did it abuse its discretion in denying the crew members' request for attorneys' fees.  As to TCW's cross-appeal, the USCA held that the district court erred in declining to apply an offset to account for settlement payments already made to six crew members.  The USCA remanded on this issue for the district court to amend the judgment to deduct the settlement consideration paid to each of the settling crew members from their respective awards under the final judgment.  Finally, the USCA affirmed the district court's decision to award all the crew members, except Canepa, wages for the "post time" following Trip No. 29.  The award of wages under a theory of quantum meruit was not clear error, and the district court's calculation of the wage rate for purposes of quantum meruit was not erroneous.

10)  MARITIME:  TCW Special Credits v. F/V Chloe Z, 99-15350, 99-15612 (9th Cir. Sept. 8, 2000) (unpublished).  Pregerson, Hawkins, and McKeown, Circuit Judges.
           The fishing vessel Chloe Z appealed the district court's denial of its motion to dismiss seaman Matos' claims as res judicata by application of FRCP 41(a)(1)'s "two dismissal" rule and its decision to apply equitable estoppel to preclude the Chloe Z from raising a statute of limitations defense.  Matos cross appealed (1) the district court's refusal to apply collateral estoppel to issues decided in the earlier in personam action against the vessel's owner, (2) its finding that Matos was 33% contributorily negligent for his injuries, (3) its calculation of future earnings, and (4) its denial of pre-judgment interest.
           The USCA affirmed in part, reversed in part, and remanded for further proceedings.  First, it affirmed the district court's res judicata ruling.  Matos' second dismissal was in a California state court, a court in which Rule 41(a)(1)(i) did not apply.  California courts do not have a civil rule equivalent to Rule 41(a)(1)(i).  Thus, neither of Matos' two prior dismissals were dismissals "with prejudice," and the district court correctly declined to apply res judicata to bar this action.  Second, the USCA reversed the district court's equitable estoppel ruling and remand for further proceedings as to that issue.  On the Chloe Z's motion to dismiss and vacate in rem process under Supplemental Admiralty Rule E(4)(f), the court ruled that the vessel was equitably estopped from arguing that Matos' in rem claims were barred by the applicable 3-year statute of limitations for maritime torts.  In so doing, the court improperly resolved disputed issues of material fact, including whether the Chloe Z in fact made any representations that the in personam judgment would be satisfied under the insurance policy, to what extent the seamen relied to their detriment upon the alleged representations, and whether such reliance caused the statute of limitations to lapse on Matos' in rem claims against the vessel.  The USCA remanded on this issue for a fact-finding hearing to permit the court an opportunity to make the factual determinations necessary to decide whether the Chloe Z should be equitably estopped from raising a statute of limitations defense.  The USCA left to the district court's discretion any decisions regarding additional discovery on this issues.  Third, turning to the issues raised on Matos' cross-appeal, the USCA affirmed the district court's refusal to apply the doctrine of collateral estoppel to issues decided in the earlier in personam action against the vessel's owner.  Assuming without deciding that collateral estoppel was available as a matter of low, the USCA held that the district court did not, given the procedural differences between the two proceedings and the concerns raised by other lien claimants in this forfeiture action, abuse its discretion in declining to apply it.  Fourth, the USCA affirmed the district court's conclusion that Matos was 33% contributorily negligent for his injuries.  The Chloe Z's expert opined that Matos was 100% at fault because he attempted to lift the strainer too aggressively without trying to loosen it first.  The court's decision to assign some responsibility for the accident to Matos was not, based on the evidence presented at the in rem trial, clear error.  Fifth, the USCA affirmed the district court's conclusion to calculate lost future earnings based on nine months of work per year as opposed to eleven months of work per year.  On the record, it was not clear error conclude that Matos would not have averaged more than nine months of work per year.  Finally, the USCA reversed the denial of pre-judgment interest.  Under Vance v. American Hawaii Cruises, Inc., 789 F.2d 790 (9th Cir. 1986), "in admiralty, pre-judgment interest must be granted unless peculiar circumstances justify its denial."  As the court did not articulate any reason for denying pre-judgment interest, the USCA remanded for a finding as to whether special circumstances justify the denial

11)  MARITIME:  TCW Special Credits v. F/V Chloe Z, 99-15136 (9th Cir. Sept. 8, 2000) (unpublished).  Pregerson, Hawkins, and McKeown, Circuit Judges. 
             The fishing vessel Chloe Z appealed (1) the district court's denial of its motion to dismiss seaman Slobodan Pranjic's claims as res judicata pursuant to FRCP 41(a)(1)(i)'s "two dismissal" rule, (2) its decision to apply equitable estoppel to preclude the Chloe Z from raising a statute of limitations defense, (3) its decision not to reduce Pranjic's future loss wages to account for applicable Croatian income taxes, and (4) its award of $43,951.92 in past medical expenses.
              The USCA affirmed in part, reversed in part, and remanded for further proceedings.  Pranjic filed and voluntarily dismissed three prior actions, the first in the District Court for the Southern District of California, the second in a California state court, and the third in a Hawaii state court.  First, the USCA rejected the Chloe Z's contention that the latter two dismissals were adjudications upon the merits under Rule 41(a)(1)(i) for the reason that this federal rule does not govern voluntary dismissals in state court.  However, unlike California, Hawaii has adopted a rule nearly identical to FRCP 41(a)(1)(i).  The question thus became whether Pranjic's third dismissal was an adjudication upon the merits under Hawaii Rule of Civil Procedure 41(a)(1)(A).  In interpreting Hawaii's "two dismissal" rule, the USCA looked for guidance to its own construction of the parallel Federal Rule.  Voluntary dismissal under FRCP 41(a)(1) are normally without prejudice except that a dismissal by notice under 41(a)(1)(i) "operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or any state an action based on or including the same claim."  Based on the circumstances here, the USCA found that strict application of the "two dismissal" rule was not warranted.  For example, the record indicates that the Hawaii dismissal was preceded by discussions between the parties about litigating the action in Guam.  Counsel for the Chloe Z stated in correspondence:  "If you will agree to dismiss the currently pending actions [in California and Hawaii] and refile them in a court in Guam, we will consider arranging for depositions to be taken in Guam."  Counsel for Pranjic confirmed that the Hawaii case would be withdrawn and refiled in Guam.  Although the Hawaii dismissal was not formally "stipulated," it was not unilateral as all parties tacitly agreed to the dismissal in favor of litigating the action in Guam.  There was also no evidence that the filings and dismissals were part of a strategy to harass the Chloe Z.  The USCA thus affirmed the district court's decision not to dismiss Pranjic's action on res judicata grounds.  Second, the USCA reversed the district court's equitable estoppel ruling and remanded for further proceedings as to that issue.  On the Chloe Z's motion to dismiss and vacate in rem process under Supplemental Admiralty Rule E(4)(f), the court ruled conclusively that the vessel was equitably estopped from arguing that Pranjic's in rem claims were barred by the applicable 3-year statute of limitations for maritime torts.  In so doing, the court improperly resolved disputed issues of material fact, including whether the Chloe Z in fact made any representations that the in personam judgment would be satisfied under the insurance policy, to what extent Pranjic relied to his detriment upon the alleged representations, and whether such reliance caused the statute of limitations to lapse on Pranjic's in rem claims against the vessel.  The USCA remand this issue for a fact-finding hearing to permit the court an opportunity to make the factual determinations necessary to decide whether the Chloe Z should be equitably estopped from raising a statute of limitations defense.  The USCA left to the district court's discretion any decisions regarding additional discovery on this issues.  Third, as for the Chloe Z's contention that the court erred in not reducing  Pranjic's lost wages to account for applicable Croatian income taxes, the USCA affirmed for the reasons set forth in TCW Special Credits v. F/V Chloe Z, 99-15169 (filed concurrently with this disposition).  Finally, Pranjic conceded that the court erred in awarding $43,951.92 for past medical expenses.  The USCA thus reversed on this issue and directed the district court to amend the judgment accordingly on remand.

12)  MARITIME:  TCW Special Credits v. F/V Chloe Z, 99-15169 (9th Cir. Sept. 8, 2000) (unpublished).  Pregerson, Hawkins, and McKeown, Circuit Judges. 
             The fishing vessel Chloe Z appealed the district court's damages calculation as set forth in its Order and Partial Judgment.  Chloe Z argued that the court erred by not reducing Mazic's future lost wages to account for applicable income taxes under Croatian law and by not offsetting his future lost wages by his projected actual wage earning capacity. 
              The USCA affirmed in part, reversed in part, and remanded for the district court to amend the judgment.  The district court considered the testimony of the Chloe Z's damages expert regarding Croatian income taxes but found it "not conclusive" and declined to "tax effect" Mazic's future earnings in arriving at the final damage award.  In so doing the court did not violate the rule of Norfolk & Western Ry. Co. v. Liepelt,444 US 490 (1980).  Consistent with Liepelt, the district court here—as trier of fact—permitted testimony regarding the purported effect of alleged Croatian income taxes payable on Mazic's future earnings.  That the court in the end declined to reduce future earnings because the testimony regarding foreign taxes was inconclusive did not run afoul of the Liepelt rule.  The USCA also rejected the Chloe Z's argument that the court erred in accepting the $200 per month wage earning capacity figures offered by Mazic's expert economist, Wallace, who based his calculation on information provided by Mazic's vocational expert and on the actual wages Mazic earned as a driver and waiter following his injury.  Wallace's decision to set Mazic's actual wage earning capacity at $200 per month was not unreasonable and the court's decision to accept his testimony not clear error.  The USCA agreed with Chloe Z, however, that the judgment should be amended to apply an offset to future earnings for Mazic's actual wage earning capacity.  Although the court stated that it "accepts the offset amount of only $200 per month as utilized by Expert Wallace," it did not apply the offset (totaling $43,461) in calculating lost future earnings.  This calculation error, the USCA directed, should be corrected by the court on remand and the judgment amended accordingly.

13)  ERISA:  Oasis Treatment Center, Inc. v. Travelers Insurance Co., 99-55225 (9th Cir. Sept. 7, 2000) (unpublished).  Schroeder, Hawkins, and Fisher, Circuit Judges.
            The District Court for the Central District of California, Judge Stotler presiding, entered summary judgment for Travelers Insurance Company on Oasis Treatment Center's claims that Travelers violated ERISA Sec. 502 by improperly denying benefits to two of its patients for the costs of their inpatient rehabilitation.  The USCA reversed and remanded for further proceedings.  The standard of review for Travelers' decisions is abuse of discretion as the two ERISA plans at issue unambiguously vested discretion in Travelers to construe plan terms and to determine eligibility, and Oasis had presented no material, probative evidence that Travelers had acted under an actual conflict of interest.  However, all of the relevant benefits decisions were actually made by MetraHealth, not Travelers.  Travelers had delegated its discretionary authority to MetraHealth even though neither plan expressly provided for a procedure for delegating that authority.  The USCA thus reviewed MetraHealth's decisions to deny benefits de novo and concluded that summary judgment was improper.  As to both patients, Oasis had presented sufficient evidence to raise a genuine issue of fact that continuing inpatient rehabilitation was medically necessary.  The USCA thus remanded for a bench trial in which the court must apply the de novo standard of review.

14)  INSURANCE:  Koken v. First Hawaiian Bank, 98-17257 (9th Cir. Sept. 5, 2000) (unpublished).  Pregerson, Hawkins, and McKeown, Circuit Judges. 
            The District Court for Hawaii, Judge Ezra presiding, entered summary judgment for First Hawaiian Bank ("FHB") on claims of the National American Life Insurance Company of Pennsylvania ("NALICO") alleging negligence, gross negligence, and breach of fiduciary duties in relation to FHB's role in a reinsurance agreement between NALICO and Investors Equity Life Insurance Company of Hawaii ("IEL").
            The USCA affirmed.  All three parties to the arrangement that led to this dispute were sophisticated entities, represented by counsel, and fully capable of negotiating complex agreements.  There were no disparities in bargaining power.  NALICO, IEL, and FHB are accountable for, and should be held to, the terms of the Custodial and Coinsurance Agreements, which were detailed in their specifications as to the responsibilities and liabilities of each party.  The USCA thus agreed with the general tenor of the district court's opinion that any duties FHB owed to NALICO were limited to those contained in the Custodial Agreement.  In this regard, NALICO's claim that FHB violated fiduciary duties it owed to NALICO, by virtue of its role as NALICO's agent failed.  Section 13 of the Re-statement (Second) of Agency (1958) defines fiduciary duties arising out of an agency relationship:  "An agent is a fiduciary with re-spect to matters within the scope of his agency."  The scope of the agency is, in turn, determined by the agreement between the parties.  Absent from the Custodial Agreement was any obligation of FHB to notify NALICO of proposed substitutions of securities by IEL.  Likewise, the Custodial Agreement did not explicitly require that the acquisition of substituted securities occur either before, or simul-taneous to, the release of funds by FHB from the Custodial Account.  Nor did it allow FHB to delay a substitution requested by IEL.  To the contrary, Sec. 3(b) of the Custodial Agreement mandates that FHB "shall" invest the assets upon the written order and direction of IEL.  In addition, Sec. 7(b) of the Custodial Agreement specifically disclaims FHB from any implied duties owed to NALICO.  Given that the Custodial Agreement did not obligate FHB to undertake any of the responsibilities NALICO alleged as the basis for it breach of fiduciary duty claims, and that no implied duties could be read into the Agreement, the district court properly granted sum-mary judgment.  NALICO's argument that FHB owed it fiduciary duties arising out of the Custodial Agreement itself (rather than the agency relationship) also failed.  The district court held that a very limited fiduciary relationship between FHB and NALICO arose out of the Custodial Agreement but that duty was limited by the terms of the Agreement.  While the USCA agreed with the district court's decision granting summary judgment to FHB on this matter, it arrived at this result via a different route.  It held that the Custodial Agreement did not create a trust from which FHB owed fiduciary duties to NALICO.  The Custodial Agreement did not evince a clear intention to create a trust.  Although the term "trust" was used in several places in the Custodial Agreement, that was insufficient to establish the requisite intent.  Rather than the language, the operative factor was the intent of the parties.  Here, as in First Citizens Federal Savings & Loan Association v. Worthen Bank & Trust Co., 919 F.2d 510 (9th Cir. 1990), FHB and NALICO were sophisticated institutions.  The Custodial Agreement placed limits on FHB's alleged fiduciary responsibilities, thereby negating the existence of a fiduciary relationship.  Section 2(b) of the Agreement states that FHB "shall have no responsibility to determine the Fair Market value of Securities on deposit in the Custodial Account, whether [IEL] has deposited an adequate amount of Securities therein, or whether the Securities qualify under the meaning of the investment parameters."  Section 3(a) provides that FHB "shall have no responsibility to determine whether substitute Securities have such a Fair Market Value or whether they meet the investment parameters."  This language amounts to a standard of care lower than that normally imposed on a fiduciary.  Moreover, in First Citizens the court relied on a contract provision that required all parties to share any losses on a pro rata basis.  Here, Sec. 7(a) of the Custodial Agreement goes even further and insulates FHB from any loss not attributable to its own negligence, gross negligence or willful misconduct.  Finally, NALICO pointed to no source, other than obligations stemming from the Custodial Agreement, to support its negligence and gross negligence claims against FHB.  These claims were thus properly dismissed on summary judgment.

15)  SECURITIES:  Kotakis v. Securities & Exchange Commission, 99-16962 (9th Cir. Sept. 25, 2000) (unpublished).  Wallace, Fernandez, and McKeown, Circuit Judges.
           The District Court for the Northern District of California, Judge Legge presiding, dismissed Kotakis' action for damages and declaratory and injunctive relief arising from his transactions with a securities broker and attempts to recover losses and to have the broker investigated and prosecuted.
           The USCA affirmed.  Kotakis' claim that the district court erred in finding the SEC defendants immune from suit lacked merit as the SEC's refusal to prosecute is an unreviewable decision committed to the SEC's discretion by law.  The declaratory and injunctive relief Kotakis sought was thus foreclosed.  His remaining claims regarding the dismissal of the SEC defendants were moot.  Kotakis' argument that the district court erred in finding the National Association of Securities Dealers defendants immune from suit also lacked merit.  The NASD is immune from liability based on the discharge of its duties, which includes arbitrating claims.  Kotakis' claim that the district court judge was biased against him was not supported by the record.  Mere disagreement with a court's rulings is insufficient to support a claim of judicial bias.  Finally, as Kotakis failed to demonstrate the exceptional circumstances necessary for appointment of counsel, the district court did not abuse its discretion in denying his motion for appointment of counsel.  In addition, the USCA's review of the record did not support Kotakis' contention that he was prejudiced by the court's denial of his motion for desig-nation of a lay assistant.
 

62)  CRIMINAL PROCEDURE:  USA v. Martin, 99-55478 (9th Cir. Sept. 22, 2000).  There is no time limit within which a party to a 28 USC Sec. 2255 proceeding may file a motion to reconsider an order resolving the merits of a Sec. 2255 petition when that order contemplates resentencing.  Reinhardt and Berzon (author), Circuit Judges, and Breyer, District Judge.  AUSA K. White of Los Angeles, CA, for the plaintiff-appellee;  DFPD M. Tanaka of Los Angeles, CA, for the defendant-appellant. (Download the full text at www.ce9.uscourts.gov/) 

72)  PAROLE:  Scott v. Baldwin, 99-35132 (9th Cir. Sept. 1, 2000).  Amendments to Oregon statutes that eliminate the parole board's biennial reviews of a prisoner's dangerous offender designation and allows the prisoner to petition for a hearing at any time do not create a significant risk that the prisoner will serve a longer sentence.  Lay (author), Tashima, and McKeown, Circuit Judges.  AFPD W. Willis of Portland, OR, for the petitioner;  B. Dunn of Salem, OR, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

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