The Ninth Circuit Court of Appeals today released an opinion in FOSTER v. USA, No. 06-56843, an appeal in a civil action against the United States. The panel consisted of John R. Gibson, Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:
Plaintiff Thomas Foster sued the United States under the Federal Tort Claims Act (”FTCA”), 28 U.S.C. § 1346(b), alleging that agents of the Bureau of Alcohol, Tobacco, and Firearms (”ATF”) damaged hundreds of his handguns and long guns, as well as ammunition and packaging, which the ATF agents had seized. The district court dismissed the action for lack of subject matter jurisdiction. Specifically, the court ruled that the government had seized the property for the purpose of criminal investigation, not forfeiture, so the “detention of goods” exception to the FTCA, 28 U.S.C. § 2680(c), applied. We affirm. FACTUAL AND PROCEDURAL HISTORY Because the district court dismissed the action for lack of subject matter jurisdiction, we take the facts from Plaintiff’s Second Amended Complaint. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1173 (9th Cir. 2002). On July 28 and July 31, 2000, ATF agents who were executing search warrants seized a large number of firearms–more than 800 in all –and ammunition from storage spaces rented by Plaintiff. The search warrants authorized federal officers to seize the property as “contraband, evidence of the crime, fruits of the crime, [and/or] instruments of the crime” of trafficking in illegal firearms. When the warrants were executed, Plaintiff was in custody pursuant to federal firearms charges in a separate criminal matter. He was later acquitted. On April 10, 2001, the ATF sent Plaintiff a letter stating that the property seized on July 31, 2000, was seized by the. . .

The Ninth Circuit Court of Appeals today released an opinion in CARVAJAL v. USA, No. 06-55868, an appeal in a civil action against the United States. The panel consisted of John R. Gibson, Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:
The main question that we must decide is whether the principles announced in United States v. $227,000 U.S. Currency, 69 F.3d 1491 (9th Cir. 1995), survive the enactment of the Civil Asset Forfeiture Reform Act of 2000 (”CAFRA”) (codi. . .

The Ninth Circuit Court of Appeals today released an amended order in WEBER v. DEPARTMENT OF VETERANS AFFAIRS, No. 06-35522, an appeal in a civil action against the United States. The panel consisted of Ronald M. Gould and Richard A. Paez, Circuit Judges, and Lyle E. Strom, District Judge.

STROM, District Judge:
Appellant Dr. William Weber (”Dr. Weber”) appeals from the February 23, 2006, order of the United States District Court for the District of Montana denying his motion for summary judgment on his claim for back pay under the Back Pay Act, 5 U.S.C. § 5596, and granting appellees’ motion to dismiss Dr. Weber’s claim. I. BACKGROUND On October 1, 1997, Dr. Weber was appointed to the position of staff radiologist at the Veterans Administration Medical and Regional Center (”VAMC”) in Fort Harrison, Montana, pursuant to 38 U.S.C. § 7401(1). Dr. Weber’s appointment was initially temporary, but the VAMC converted the position to a full-time staff position on December 7, 1997. As mandated by 38 U.S.C. §§ 7403(b)(1) and (2), Dr. Weber’s appointment was subject to a two-year probationary period and to board review. Section 7403(b)(2) states, in pertinent part:
The record of each person serving under such an appointment in the [m]edical . . . [s]ervices shall be reviewed from time to time by a board, appointed in accordance with regulations of the Secretary. If such a board finds that such person is not fully qualified . . .

The opinion filed on January 15, 2008, is hereby amended as follows: At slip op., p. 529, 512 F.3d 1178, 1183-84, delete the following: Because Dr. Weber failed to raise this claim before the district court, and no exceptional circumstances justify this failure, we decline to address this claim. See Monetary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir. 1995) (internal quotation marks omitted) (stating “[a]s a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances”). Replace with the following sentence: Because Dr. Weber did not properly raise this claim before the district court, and no exceptional circumstances justify this failure, we decline to address this claim. See Rains v. Flinn (In re Rains), 428 F.3d 893, 902 (9th Cir. 2005) (finding the plaintiff’s due process claim waived on appeal because he first raised the claim before the district court in his reply brief); see also Silvas v. E*Trade Mortgage Corp., 514 F.3d 1001, 1007 (9th Cir. 2008) (stating that “it is well-established that an appellate court will not consider issues that were not properly raised before . . .

The Ninth Circuit Court of Appeals today released an opinion in COUNTY LOS ANGELES v. LEAVITT, No. 06-55222, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher, Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges.

RYMER, Circuit Judge:
This appeal, which involves Medicare reimbursement of indirect medical education expenses (IME) incurred by a public teaching hospital with an approved intern and resident program, presents two questions: first, whether it was arbitrary and capricious for the Secretary of Health and Human Services to interpret the Medicare statute and regulations providing for IME payment on the basis of “available beds” as presumptively meaning physical beds, when the hospital’s fiscal intermediary had previously accepted a calculation based on budgeted beds; and second, whether the Secretary’s findings in this case were supported by substantial evidence. Los Angeles County/University of Southern California Medical Center (County/USC or Med Center) appeals the district court’s judgment upholding a final determination by the Provider Reimbursement Review Board (PRRB) that County/ USC’s intermediary, Blue Cross and Blue Shield Association (Blue Cross), properly used a physical bed count in the formula for calculating the hospital’s IME adjustment for fiscal year ending (FYE) June 30, 1994. We conclude that the Sec. . .

REINHARDT, Circuit Judge, dissenting:
I agree with the majority that the Secretary did not act arbitrarily and capriciously when he switched from using the number of budgeted beds to using the number of physical beds for calculating the Medicare IME adjustment. I also agree that the Secretary’s interpretation of “available beds” as presumptively meaning physical beds is entitled to deference from this court and is reasonable as a general matter. However, because I believe that County/USC met its burden of rebutting the presumption and showing that certain beds should have been excluded from Med Center’s available bed count in the fiscal year ending June 30, 1994 (”FY1994) -namely the 123 beds that made up the difference between the number of physical beds and the number of budgeted beds -I would hold that the Provider Reimbursement Review Board’s (”Board”) decision was arbitrary and capricious. As the majority explains, the relevant interpretive regulation directs that “beds available at any time during the cost reporting period are presumed to be available during the entire cost reporting period.” PRM-1 § 2405.3; Maj. Op. at 3231. However the majority relegates to a parenthetical a crucial caveat: hospitals may provide “evidence to the contrary” in order to “exclude beds from the count.” Id. In other words, hospitals have the opportunity to prove that certain beds should not be considered available and thus should be excluded from the count. At a hearing before the Board, County/USC presented evidence that the 123 physical beds that were not included in the budget should be excluded from the IME calculation because those beds were not actually available for patient use during the year. Disregarding the substantial evidence presented by County/USC, the Board concluded that all 1,320 physical beds should be considered . . .

The Ninth Circuit Court of Appeals today released an opinion in FIRST AMERICAN v. USA, No. 05-35520, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Andrew J. Kleinfeld and Carlos T. Bea, Circuit Judges.

KLEINFELD, Circuit Judge:
This is a tax collection case about a third party challenge to a tax assessment and lien on an earlier owner’s property. FACTS In 1991, Penny Jensen’s mother, Roberta Smith, died, and Jensen was named the personal representative of her mother’s estate. The estate consisted of three houses and the stock of a corporation that owned a hamburger drive-in (Frisko Freeze, Inc.). The estate filed its federal estate tax return in 1992. The return valued the estate at $1,302,129, calculated taxes at $144,323, and elected to pay the $144,323 with about $45,000 down and the rest on an installment plan. Jensen then conveyed the three houses to herself and her husband. Over the next two years, Jensen sold the houses to three different purchasers. All were bona fide purchasers for value, and all obtained title insurance from the three plaintiffs in this case. Despite their title searches, all three title insurance companies did not discover that the houses were encumbered by tax liens because the taxes on the estate were largely unpaid. Subsequently the IRS audited the estate and concluded that the hamburger drive-in was worth more than the $762,275 valuation the estate had put on it. Eventually, in 1994 (after the three houses had been sold) the IRS and Jensen, as personal representative of the estate, compromised on a value of $911,987, increasing the estate taxes by $49,416. Jensen, as 26 U.S.C. § 6166 provides for installment plans for payment of estate taxes where much of the estate’s value is an interest in a closely held business. . . .

The Ninth Circuit Court of Appeals today released an opinion in FRIENDS OF YOSEMITE v. KEMPTHORNE, No. 07-15124, an appeal in a civil action against the United States. The panel consisted of Alfred T. Goodwin, A. Wallace Tashima, and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:
Twenty years after the Merced River, which lies in the heart of the Yosemite National Park, was designated a Wild and Scenic River, and seventeen years after the National Park Service (”NPS”) was statutorily required to prepare a Comprehensive Management Plan (”CMP”) for the Merced Wild . . .

The Ninth Circuit Court of Appeals today released an amended order in DTSC, CALIFORNIA v. BURLINGTON NORTHERN, No. 03-17125, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher, John R. Gibson, and Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
A now-defunct company, Brown & Bryant, Inc. (B&B), owned and operated a facility at which toxic chemicals were stored and distributed. Part of the land on which the chemical operation was located was owned by two railroad companies (the Railroads), and some of the chemicals used by B&B were supplied and delivered to the facility by Shell Oil Company (Shell). Because toxic chemicals remaining at the facility threatened groundwater and may continue to do so in the future, the United States Environmental Protection Agency (EPA) and the State of California’s Department of Toxic Substances Control (DTSC) spent a considerable amount of money to clean up the site and may need to spend more in the future. The two agencies sought to recover these response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 9675,1 (CERCLA), but the district court held the Railroads and Shell liable for only a minor portion of the total cleanup costs. B&B was defunct by that time, and so could not contribute to the cleanup costs. The agencies were thus left holding the bag for a great deal of money. . . .

The full court has been advised of the petitions for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R. App. P. 35(f). The panel has voted to amend its opinion and to deny appellees’ petitions for rehearing with the following amendments. The opinion filed March 16, 2007 and amended September 4, 2007, published at 502 F.3d 781 (9th Cir. 2007), is hereby further amended as follows:
1. On page 790, add a new footnote 5 after <When the trucks carrying D-D . . . large tanks by hoses.> reading: . . .

BEA, Circuit Judge, with whom KOZINSKI, Chief Judge, O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, CALLAHAN, and N.R. SMITH, Circuit Judges, join, dissenting from the order denying the petition for rehearing en banc: The panel applies CERCLA in a novel and unprecedented way to impose impossible-to-satisfy burdens on CERCLA defendants. The panel’s interpretation of CERCLA “arranger” liability creates intra- and inter-circuit conflicts in an area of the law where uniformity among circuits is of paramount importance. See Panel Op. at 2939 (noting CERCLA’s “policy favoring national uniformity so as to discourage illegal dumping in states with lax liability laws” (citation omitted)). Further, the panel’s unreasonable application of CERCLA apportionment law imposes joint and several liability on CERCLA defendants where Congress did not so intend. Our national policy on toxic spills or disposals is quite clear; it does not allow for dithering. Anyone who owned or used the land when or after the pollution entered it is potentially liable for its clean-up. It does not matter how the toxic materials entered the land; that others may also be potentially liable or that reasonable stewardship was exercised are simply not defenses. But “potentially liable” does not mean “totally liable.” Just as CERCLA allows the landowner or the land user to prove the pollution entered the land before he had anything to do. . .

The Ninth Circuit Court of Appeals today released an order and opinion in MARCEAU v. BLACKFEET HOUSING, No. 04-35210, an appeal in a civil action against the United States. The panel consisted of Harry Pregerson, Susan P. Graber, and Ronald M. Gould, Circuit Judges.

GRABER, Circuit Judge:
Plaintiffs are members of the Blackfeet Indian Tribe who bought or leased houses built under the auspices of the United States Department of Housing and Urban Development (”HUD”). The houses had wooden foundations. The wood had been pressure-treated with toxic chemicals. Plaintiffs allege that the use of wooden foundations caused their houses to deteriorate and that the chemicals in the wood have caused, and continue to cause, health problems for those who live in the houses. On behalf of a class of persons similarly situated, Plaintiffs sued HUD, the Secretary of HUD, the Blackfeet Tribal Housing Authority and its board members (”the Housing Authority”) under several theories. The district court dismissed the entire complaint under Federal Rule of Civil Procedure 12(b)(6). On rehearing, we hold: (1) the Housing Authority forfeited its claim to tribal exhaustion and, in any event, waived its tribal immunity; (2) the government did not undertake a trust responsibility toward Plaintiffs to construct houses or maintain or repair houses; and (3) Plaintiffs alleged sufficient facts to state claims against HUD under the Administrative Procedure Act (”APA”). We readopt our earlier opinion with respect to Plaintiff’s breach of contract claims. Accordingly, we affirm the district court’s dismissal of the case except as to Plaintiffs’ claims against the Housing Authority and its board members and Plaintiffs’ claims under the APA. As to those claims, we reverse and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Because the district court dismissed the amended complaint for failure to state a claim, we construe the facts from PlainMarceau v. Blackfeet Hous. Auth., 455 F.3d 974 (9th Cir. 2006). . . .

The opinion filed on July 21, 2006, slip op. 8071, and appearing at 455 F.3d 974 (9th Cir. 2006), is replaced in part and adopted in part by the amended opinion filed concurrently with this order. Further petitions for rehearing and petitions for rehearing en banc may be filed. . . .

PREGERSON, Circuit Judge, dissenting:
I concur in the majority’s rulings on tribal immunity and the Administrative Procedure Act. I dissent with regard to the majority’s analysis of federal trust responsibility, and write separately on that issue. I. Factual Background1 Pursuant to the goals set out in the United States Housing Act of 1937, 42 U.S.C. §§ 1437-1440, HUD developed the Homeownership Program. HUD designed the Homeownership Program to meet the housing needs of low-income American Indian families. HUD entered into agreements called “Annual Contributions Contracts” with tribal housing authorities under which HUD agreed to provide a specified amount. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v APPROXIMATELY 64,695 POUNDS OF SHARK FINS, No. 05-56274, an appeal in a civil action against the United States. The panel consisted of Stephen Reinhardt, Raymond C. Fisher, and Richard R. Clifton, Circuit Judges.

REINHARDT, Circuit Judge:
This case arises from a civil complaint brought by the U.S. Government for the forfeiture of 64,695 pounds of shark fins found on board the King Diamond II (”KD II“), a United States vessel. Claimant-Appellant Tai Loong Hong Marine Products, Ltd. (”TLH”) owned the shark fins. TLH, a Hong . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. BRUNO, No. 06-15225, an appeal in a civil action against the United States. The panel consisted of Jerome Farris, Robert R. Beezer, and Sidney R. Thomas, Circuit Judges.

BEEZER, Circuit Judge:
Roy Bruno (”Bruno”) and Miguel Camacho (”Camacho”) (collectively, “Claimants”) appeal the magistrate judge’s order granting summary judgment in favor of the government in its civil forfeiture action against $493,850 in U.S. currency and one 1993 Ford F-350 truck. We affirm. I On June 3, 2003, Officer John McFarland (”McFarland”) of the Arizona Highway Patrol observed a Ford truck with Florida license plates swerve over the center line on an Arizona . . .