Ki Capital Consultants LLC; Jeffrey L. Grayson; Barclay L. Grayson v.  7649 BENSON v. LENNON -- 3 of 17 --  CAPITAL CONSULTANTS LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff,
and
KAREN LYNN BENSON; P.J. BRIX,
LLC,
Claimants-Appellants, No. 04-35339
v.  D.C. No.
CV-00-01290-KI CAPITAL CONSULTANTS LLC;
JEFFREY L. GRAYSON; BARCLAY L.
GRAYSON,
Defendants,
THOMAS F. LENNON,
Receiver-Appellee. 
7647

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 SECURITIES AND EXCHANGE
COMMISSION; CAROLYN L. ARNTSON;
ARNTSON FAMILY HOLDINGS, LLC;
MARY ARNTSON; JERRY L. BAKER;
MARY BETH BAKER; KAREN LYNN
BENSON; RODERICK A. LIVESAY;
BRIX DEARMOND LLC; JOHN R.
CHANEY; J. DAVID COUGHLIN AND
JENNIFER LEE COUGHLIN TRUST; J.
DAVID COUGHLIN; MARLENE
DUTCHER; ROBERT DUTCHER; DAVOL
FAMILY TRUSTS A AND B; ANN
HAZEN FRANCIS; FREMONT LAND
COMPANY LLC; FUNERAL No. 04-35967
ASSOCIATES LLC; JAY A. HINZ; D.C. Nos.
HOLTZ JOINT TRUST; KENNETH E. CV-00-01290-KI HOLTZ; ROSELLA G. HOLTZ; PAULA CV-01-00609-KI
J. KING; SHELLEY KING; LABORERS
OPINION INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 296; ELIZABETH
MCNALLY; JAMES MURPHY;
PATRICIA J. MURPHY; WAYNE
MUSGROVE; ESTATE OF BENNIE KAY
MUSGROVE; BETTY NORRIE;
INTERTRIBAL TIMBER COUNCIL; P.J.
BRIX, LLC; KENNETH R. POORMAN;
POORMAN FAMILY LLC; QUALITY
ELECTRIC MONEY PURCHASE PLAN;
SCOTT THOMASON; DONALD E.
TYKESON TRUST; DONALD E.
TYKESON; DONALD E. TYKESON
FOUNDATION; BOYD VAN NESS; 
7648 BENSON v. LENNON

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 WAND’S FUNERAL HOME DEFINED
BENEFIT PENSION PLAN; ROBERT J.
WILHELM TRUST; ALLEN AND
ESTHER WILSON REVOCABLE TRUST;
LESLIE R. WOLF; MARTIN WOLF;
DEBORAH WOLF; NANCY M.
GABRIEL; JOSEPH GABRIEL; ROBERT
B. GUTTERMAN TRUST; S.M.
GUTTERMAN, MA, JD, PROFIT-
SHARING PLAN; G.S. GUTTERMAN,
MD; S.M. GUTTERMAN; G.S.
GUTTERMAN; IBEW LOCAL UNION
1245; NOEL B. FLYNN; JELD-WEN
FOUNDATION; QUALITY ELECTRIC,
INC.; AFTCS-PREFERRED
ENDOWMENT CARE-CALIFORNIA;
AMERICAN FUNERAL & CEMETERY TRUST SERVICES PREFERRED
ENDOWMENT CARE — OREGON/
WASHINGTON,
Plaintiffs,
EIGHTH DISTRICT ELECTRICAL
PENSION FUND; EIGHTH DISTRICT
ELECTRICAL BENEFIT FUND,
Claimants,
and
AMERICAN FUNERAL AND CEMETERY
TRUST SERVICES; VIRGINIA K.
MUDD; VIRGINIA B. MUDD
REVOCABLE TRUST,
Plaintiffs-Appellants,
v. 
7649 BENSON v. LENNON

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 CAPITAL CONSULTANTS LLC;
JEFFREY L. GRAYSON; BARCLAY L.
GRAYSON; CAPITAL CONSULTANTS
LLC; ANDREW WIEDERHORN;
LAWRENCE A. MENDELSOHN;
JEFFREY L. GRAYSON; BARCLAY L.
GRAYSON; CAPITAL CONSULTANTS,
INC.; WILSHIRE CREDIT
CORPORATION; WILSHIRE FINANCIAL
SERVICES GROUP, INC.; WILSHIRE
SERVICING CORPORATION; PORTLAND
SERVICING CORPORATION; CAPITAL
WILSHIRE HOLDINGS, INC.; STERLING
CAPITAL LLC; DANIEL DYER; TED
WIEDERHORN; SPECIALTY FINANCE 
INVESTORS LLC; TIFFANY
WIEDERHORN; JOYCE MENDELSOHN;
WILSHIRE REAL ESTATE INVESTMENT
TRUST, INC.; FIRST BANK OF
BEVERLY HILLS FSB; WILSHIRE
ACQUISITION CORPORATION;
WILSHIRE FUNDING CORPORATION;
CF CREDIT LLC; BUD COLEMAN;
DAVID FREY; FOLEY MCINTOSH
FREY & CLAYTOR PC; OXBOW
CAPITAL PARTNERS, LLC; OXBOW
CAPITAL 1999 FUND I, LLC;
OXBOW CAPITAL 1999 FUND B,
LLC; BEAR STEARNS & CO.; 
7650 BENSON v. LENNON

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 MOSS ADAMS LLP; CONSILLIUM,
INC.; SUZANNE PERKINS; LARRY
TAPANEN; STEPHEN OLSON; SHAWN
OLSON; O’MELVENY & MYERS
LLP; ROBERT N. ECCLES; MARK
PETERMAN; ELLIS & HOWARD PC;
 WEISS JENSEN; MCCARTER &
ENGLISH; BROOKS FINANCIAL LLC,
Defendants,
THOMAS F. LENNON,
Receiver-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
March 9, 2006—Portland, Oregon
Filed July 12, 2006
Before: Melvin Brunetti, Thomas G. Nelson, and
Richard A. Paez, Circuit Judges.
Per Curiam Opinion
7651 BENSON v. LENNON

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COUNSEL
John W. Stephens, Esler, Stephens & Buckley, Portland, Ore-
gon, for the appellants.
Loraine L. Pedowitz, Allen Matkins Leck Gamble & Mallory
LLP, San Diego, California, for the appellee.
7654 BENSON v. LENNON

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OPINION
PER CURIAM:
I. Introduction
Pursuant to 28 U.S.C. § 1291, we have jurisdiction over
appeals from “all final decisions of the district courts of the
United States.”1 This appeal presents the question of whether
a district court’s order determining the rights and liabilities of
some, but not all, claimants with claims to receivership assets
is a final decision under § 1291.2 We conclude that, unless the
district court certifies the order and directs entry of judgment
pursuant to Federal Rule of Civil Procedure 54(b), such an
order is not a final decision. Thus, we lack jurisdiction over
the appeal of one set of claimants/appellants, Benson and
Brix, LLC (“Benson and Brix”), but we have jurisdiction over
the appeal of the other set, the American Funeral and Ceme-
tery Trust Services, MUDD, and the Mudd Revocable Trust.
We address the merits of the second set of claimants’ appeal
in a memorandum disposition issued with this opinion.
II. Background
These consolidated appeals arise from a civil suit against an
investment advisor, Capital Consultants, LLC (“CCL”), by
the SEC (“the SEC litigation”). The appellants were all clients
of CCL and are thus claimants in the SEC litigation. To
understand their appeal, one must not only understand the
appellants’ position in the SEC litigation, but also in another
suit.
128 U.S.C. § 1291.
2We recognize that 28 U.S.C. § 1292(a)(2) provides for appeal in
receiverships in certain circumstances. However, those circumstances are
not present here, and we have interpreted the provision narrowly. See id.;
FTC v. Overseas Unltd. Agency, 873 F.2d 1233, 1235 (9th Cir. 1989).
Thus, we address our jurisdiction solely under § 1291.
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The appellants are part of a group known as the American
Funeral Plaintiffs. Along with other clients of CCL, the
American Funeral Plaintiffs sued CCL and third parties
directly (“the direct action”) when CCL’s fraud became
known. When settlement talks with the third party defendants
in the direct action stalled due to differences of opinion
between the American Funeral Plaintiffs and the other plain-
tiffs, a settlement agreement among the plaintiffs was
reached. The American Funeral Plaintiffs agreed to exchange
their rights to certain claims against the third party defendants
in the direct action — and therefore their ability to block set-
tlement — in exchange for $9.975 million, plus interest.
Because CCL was, at the time of the settlement in the direct
action, under receivership in the SEC litigation, the district
court in the SEC litigation had to approve the settlement
agreement among the plaintiffs in the direct action. It did so.
Thus, the American Funeral Plaintiffs ended their involve-
ment in the direct action.
Meanwhile, the SEC litigation continued. Eventually, the
court adopted a second amended distribution plan. It inter-
preted that plan to allow claimants, including the appellants,
to receive a set distribution or to trace their investments if
they wished. However, in an order dated August 18, 2003, the
court held that American Funeral Plaintiffs had to remit any
funds they had received pursuant to the settlement agreement
among the plaintiffs in the direct action, if they elected to
trace their investments. Both sets of appellants elected to
trace, and now challenge this remittance requirement, arguing
that it is neither true to the terms of the distribution plan nor
to the terms of the settlement agreement.
The receiver did not object to the tracing claims of the
American Funeral and Cemetery Trust Services, MUDD, and
the MUDD revocable trust. Thus, the August 18, 2003 order
provided the method by which the receiver ultimately deter-
mined the sums this first set of claimants would receive. The
claimants sought Rule 54(b) certification of, and entry of
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judgment on, the district court’s August 18, 2003 order as it
applied to them. The district court granted their request.
Accordingly, they appeal from a judgment the district court
certified as final.
The receiver did object to the tracing claims of Benson and
Brix. However, in an order dated February 9, 2004, the dis-
trict court approved their claims. Thus, the August 18, 2003
order provided the method by which the receiver ultimately
determined the sums Benson and Brix would receive, but the
court’s February 9, 2004 order allowed the award of those
sums over the receiver’s objection. Without seeking Rule
54(b) certification, Benson and Brix appealed the district
court’s February 9, 2004 order.
In the appellants’ initial briefing, they argued that this court
has jurisdiction over Benson and Brix’s appeal because the
district court’s February 9th order was a final order or judg-
ment pursuant to § 1291. They argued for a liberal interpreta-
tion of finality, drawing analogies to bankruptcy. At oral
argument, they supplemented their briefing with two citations
to out-of-circuit cases that held similar orders appealable
under the collateral order doctrine. They argued for jurisdic-
tion over the American Funeral and Cemetery Trust Services,
MUDD, and the Mudd Revocable Trust’s appeal pursuant to
Rule 54(b) and § 1291.
III. Discussion
[1] Generally, a final decision under § 1291 “ends the liti-
gation on the merits and leaves nothing for the court to do but
execute the judgment.”3 However, in certain circumstances, a
decision that does not end the litigation may be considered
final under the statute. The collateral order doctrine defines
one such circumstance; Rule 54(b), another.
3Catlin v. United States, 324 U.S. 229, 233 (1945).
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[2] No one contends that either the August 18th order or the
February 9th order ends the litigation. Accordingly, neither
order is a final decision in the usual sense. To determine if we
nonetheless have jurisdiction under § 1291, then, we must
determine whether the collateral order doctrine or Rule 54(b)
applies to those orders.4
A. The Collateral Order Doctrine
[3] The collateral order doctrine was designed to allow
appeal from a “narrow class of decisions that do not terminate
the litigation, but must, in the interest of achieving a healthy
legal system[,] nonetheless be treated as final.”5 Requirements
of the doctrine are often described as three-fold. Orders that
do not dispose of the entire litigation are appealable as collat-
eral orders if they “[1] conclusively determine the disputed
question, [2] resolve an important issue completely separate
from the merits of the action, and [3] [are] effectively unre-
viewable on appeal from a final judgment.”6 The Supreme
Court has emphasized that these requirements are to be
4Drawing analogies to the bankruptcy context, the claimants urge us to
take a “similarly flexible” approach to finality in this, the receivership,
context. We decline to do so. Although similarities between receivership
and bankruptcy proceedings certainly exist, differences exist as well. One
such difference is in the statutes that govern appeals. Title 28 U.S.C. § 158
governs bankruptcy appeals to the district court and provides the more
“flexible” approach to which appellants refer. Title 28 U.S.C. § 1291 gov-
erns here.
5Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)
(internal quotation marks and citation omitted).
6Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). These
requirements may also be framed as two requirements, one of which has
three prongs. That is: the order must finally resolve a disputed issue
involving a claim of right, and the right in question must be important,
evanescent, and collateral to the rest of the litigation. See, e.g., Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
7658 BENSON v. LENNON

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applied strictly and that only a “narrow class of decisions”
satisfy them.7
Strict application of the requirements is particularly impor-
tant because, when a court identifies an order as an appeal-
able, collateral one, it determines the appealability of all such
orders.8 If courts did not apply the requirements strictly, then,
the doctrine would no longer govern a “narrow class of deci-
sions,”9 but a broad class. Thus, we are not to consider “the
chance that the litigation at hand might be speeded, or a par-
ticular injustic[e] averted, by a prompt appellate court deci-
sion”10 when we determine whether a particular order is an
appealable, collateral one. We must take a broader view and
determine if resolution of the kind of claim in question must
always be immediately appealable under the collateral order
doctrine.
[4] We conclude that orders such as the district court’s Feb-
ruary 9th and August 18th orders involve the merits of the liti-
gation. Thus, they are not collateral to the merits11 and are not
appealable under the collateral order doctrine.12 To be truly
collateral to the merits of the litigation, a claim or right must
not be “an ingredient of the cause of action” and must there-
fore “not require consideration with” that cause of action.13
The disposition of the issue should not “affect, or [ ] be
7See Digital Equip., 511 U.S. at 867-68.
8See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 439 (1985)
(“This Court . . . has expressly rejected efforts to reduce the finality
requirement of § 1291 to a case-by-case determination of whether a partic-
ular ruling should be subject to appeal.”); Digital Equip., 511 U.S. at 868.
9Digital Equip., 511 U.S. at 867.
10Id. at 868 (internal quotation marks and citation omitted).
11Id.
12Because such orders fail the collateral requirement, we need not con-
sider the other requirements of the collateral order doctrine.
13Cohen, 337 U.S. at 546-47.
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affected by, decision of the merits.”14 To determine if the
claims in question are collateral to the merits of the litigation,
we must determine what the merits are and what the claims
are. Then, we must determine if resolution of the claims
affects the merits.
[5] Defining the “merits” of the litigation is not particularly
difficult. The litigation in question is a receivership proceed-
ing instituted by the SEC, an agency charged with protecting
“the national public interest and the interest of investors.”15 In
accord with its charge, the SEC sought to place CCL into
receivership after determining that it and its principals, the
defendants, had violated securities laws and harmed their cli-
ents. A review of the stipulated court order reveals that the
receivership had several purposes and the receiver, several
different duties. In addition to investigating and pursuing
claims arising from legal violations, the receiver was to
locate, take control of, and preserve the company’s assets.
The receiver was then charged with disbursing those assets in
accordance with the court’s orders. Because rightful claims to
assets exceed the assets available, the court, with the help of
the receiver, must determine how to distribute the assets equi-
tably. Thus, distributing CCL’s assets equitably is one of the
central purposes of the receivership and, correspondingly, of
the SEC’s litigation.16
The claim the appellants asserted in this case was a claim
to assets held by the receiver. Specifically, the appellants
14Id. at 546.
1515 U.S.C. § 80a-1(b).
16See, e.g., Esbitt v. Dutch-Amer. Mercantile Corp., 335 F.2d 141, 143
(2d Cir. 1964) (concluding that, “in bringing an action for an injunction
and the appointment of a receiver, the SEC is [ ] concerned with the pro-
tection of those who already have been injured by a violator’s actions from
further despoliation of their property or rights” not merely with “the
enjoining of possible future violations”) (internal quotation marks omit-
ted).
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asserted a right to receive traced funds without remitting set-
tlement funds.
[6] If one of the primary purposes of the litigation is to
determine how best to distribute CCL’s assets to claimants,
including the appellants, their claims clearly comprise part of
the merits of the litigation. The fact that they comprise only
a small piece of the merits is irrelevant. Resolution of the
appellants’ claims will directly affect the ongoing litigation.17
If the claims succeed, the pool of assets the receiver controls
will be smaller. Accordingly, the receiver will have fewer
resources to distribute to other claimants.
We acknowledge that several other circuits have drawn the
opposite conclusion.18 We respectfully disagree with their
decisions for the reasons given above and for one other rea-
son: Following the other circuits’ rule would, we believe, lead
to costly and unnecessary uncertainty.
In the receivership context, determining whether an order
finally resolves a claim — and thus whether the order might
satisfy the collateral order doctrine — can be extremely diffi-
cult. The facts of the Sixth Circuit case illustrate this diffi-
culty. In Basic Energy, each party identified a different order
as the one finally resolving the appellants’ claims; the court,
yet a third. One order in that case ended up providing the
method that resolved the appellants’ claims. The receiver
therefore argued that it was the order from which the claim-
ants should have appealed.19 The claimants argued that a sub-
sequent order was the appropriate order from which to appeal.20
17See Cohen, 337 U.S. at 546.
18See SEC v. Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665-67
(6th Cir. 2001) (holding that a court order resolving some claims to receiv-
ership assets was an appealable, collateral order); SEC v. Forex Asset
Mgmt. LLC, 242 F.3d 325, 330-31 (5th Cir. 2001) (same).
19Basic Energy, 273 F.3d at 663.
20Id. at 664-65.
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After carefully evaluating the two orders cited by the parties,
the court concluded that neither order finally resolved the
claim in question.21 After examining the record, however, the
court concluded that a third order issued by the district court
after the appeal was taken — and never cited by the parties
— did so.22 Moreover, the court concluded that this third order
satisfied the other requirements of the collateral order doctrine
as well. Thus, the court held that it had jurisdiction.23 Accord-
ingly, in the Sixth Circuit case, it was not clear which order
was appealable until the court resolved the appeal.24
The particular difficulty in the receivership context of
determining whether an order satisfies the collateral order
doctrine creates real problems for parties and, ultimately, for
courts. As with all final decisions, the time for appeal of an
appealable collateral order begins to run on the date the court
enters the order.25 Thus, parties who do not realize that an
order may be an appealable collateral order before the time
for appeal runs out will lose their opportunity to appeal. Also
problematic, parties aware of this potential pitfall will file
appeals of all orders that might satisfy the collateral order
doctrine in order to protect their appellate rights. Uncertainty
regarding finality and appealability will therefore generate
extra work for parties as well as for courts.
The practical problems that would result from categorizing
orders in this context as appealable collateral orders strength-
21Id.
22Id. at 665.
23Id.
24In this case, the problem was perhaps less extreme, partly because
there were fewer orders from which to choose. However, it was an open
question whether the August 18th order would resolve the appellants’
claims, at least until the end of the period during which the receiver could
object to a party’s claims
25See Fed. R. App. P. 4; Note, Appealability in the Federal Courts, 75
Harv. L. Rev. 351, 367 (1961).
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ens our conviction that our decision not to do so is correct.
We turn now to the other possible avenue of jurisdiction over
such orders: Federal Rule of Civil Procedure 54(b).
B. Federal Rule of Civil Procedure 54(b)
[7] Rule 54(b) allows a district court to finalize an order
that completely disposes of one or more, but “fewer than all
of the claims or parties.”26 A brief review of the rule’s history
illustrates its purpose.
Rule 54(b) was originally promulgated in response to
newly-liberalized rules regarding joinder of claims and parties.27
Courts and commentators worried that liberal joinder “in-
creased the danger of hardship and denial of justice through
delay if each issue must await the determination of all issues
as to all parties before a final judgment can be had.”28 Thus,
the original version of Rule 54(b) allowed for appeal to be
taken from an order that finally determined a single claim,
despite the fact that other claims remained.29 Because the orig-
inal rule did not require that a court enter judgment on the
claim before the time for appeal began to run, it left parties
uncertain as to whether particular orders were appealable.30
Unwary parties missed the opportunity to appeal, and the
courts were flooded with protective appeals.31 In other words,
26Fed. R. Civ. P. 54(b).
27See 10 James Wm. Moore et al., Moore’s Federal Practice, § 54 app.
102[1].
28Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950).
29Moore’s Federal Practice, Civ. § 54 App. 102[1]. The rule was
amended in 1961 to allow for an appeal from an order that disposed of all
the rights and liabilities of a single party as well. Id. at [6].
30Id. at [2].
31Id. (“If there was any real doubt as to the finality of an adjudication,
and there often was, careful practice dictated an appeal by a losing party
dissatisfied with the adjudication, so that fruitless appeals were often
taken.”)
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courts and parties faced the same kinds of problems outlined
in the previous section of this opinion.
[8] To remedy these problems, Rule 54(b) was amended in
1946 to include the requirements, still present in the rule
today, that the district court “make an express determination
that there is no just reason for delay” and that the court make
“an express direction for the entry of judgment.”32 All other
orders remain interlocutory under the rule.33 Thus, the time for
appeal does not begin to run until a court has made its express
determination and direction — until it finalizes its decision.
The rule thereby avoids the confusion and waste of time cre-
ated by uncertainty as to finality, helps insure that a decision
really is final before it is appealed, and alerts the district court
to the fact of the appeal. Awareness of the specific issue on
appeal is particularly important because Rule 54(b) allows for
the appeal of claims that go to the merits of the litigation.34
Thus, resolution of a Rule 54(b) appeal may affect the ongo-
ing litigation. This is in contrast to the collateral order doc-
trine, which allows for appeal only of issues collateral to the
litigation.35
[9] As discussed above, the orders from which both sets of
appellants seek to appeal address the merits of the litigation
and finally resolve all the claims of only some of the parties.
Accordingly, they fall squarely within Rule 54(b). In order to
appeal the decisions in those orders, then, the parties must ask
32Fed. R. Civ. P. 54(b); Moore’s Federal Practice § 54 app. 102[3].
33Id.
34See Moore’s Federal Practice, § 54.27(2)(c); 75 Harv. L. Rev. at 367.
35Some commentators have noted that the doctrine and the rule may
overlap in rare circumstances. See, e.g., 15A Charles Alan Wright et al.,
Federal Practice and Procedure § 3911 (2d ed. 2005) (noting that the col-
lateral order doctrine “has been relied upon to find finality as to orders that
finally dispose of all disputes as to parties whose role in the litigation is
itself subordinate and collateral to the merits”). However, any overlap
does not bear on our decision.
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the district court expressly to determine that no just reason for
delay exists and to order the entry of judgment.
[10] The American Funeral and Cemetery Trust Services,
MUDD, and the Mudd Revocable Trust followed the required
procedures and the district court made the required determina-
tion and direction. Accordingly, those appellants have
appealed from a decision rendered final pursuant to Rule
54(b) and over which we have jurisdiction.
[11] Benson and Brix, however, did not follow the required
procedures. Accordingly, the order from which they appeal
remains interlocutory and we lack jurisdiction over it. Thus,
we dismiss their appeal for lack of jurisdiction.
IV. Conclusion
The appellants seek to appeal district court orders that adju-
dicated all of their rights and liabilities. Because numerous
claims and parties remain before the district court, the orders
do not terminate the litigation. Thus, they are not final deci-
sions in the usual sense. Because the appellants’ claims are
integral to the merits of the litigation, the orders are not collat-
eral. Accordingly, they are not orders over which we have
jurisdiction under the collateral order doctrine. Rather, they
are precisely the kind of orders addressed by Federal Rule of
Civil Procedure 54(b). Benson and Brix did not obtain the
certification and direction for entry of judgment required by
Rule 54(b) to render an order final, and we lack jurisdiction
over their appeal. The American Funeral and Cemetery Trust
Services, MUDD, and the Mudd Revocable Trust did obtain
the required certification and direction, and we have jurisdic-
tion over their appeal. We address the merits of their appeal
in a memorandum disposition that accompanies this opinion.
The appeal in No. 04-35339 is DISMISSED FOR LACK
OF JURISDICTION. The merits of appeal No. 04-35967 are
addressed in the accompanying memorandum disposition.
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