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*864DECISION AND ORDER RUDOLPH T. RANDA, District Judge. This case requires the Court to decide the limits that government can place on First Amendment political speech. It comes to the Court with more than the usual urgency presented by First Amendment cases because the defendants seek to criminalize the plaintiffs’ speech under Wisconsin’s campaign finance laws. Defendants instigated a secret John Doe investigation replete with armed raids on homes to collect evidence that would support their criminal prosecution. Plaintiffs move for a preliminary injunction to stop the defendants’ investigation. I. Background Eric O’Keefe is a veteran volunteer political activist who has been involved in political and policy advocacy since 1979. O’Keefe is a director and treasurer for the Wisconsin Club for Growth (“WCFG” or “the Club”), a corporation organized under the laws of Wisconsin and recognized as a non-profit entity under Section 501(c)(4) of the Internal Revenue Code. WCFG is a local, independent affiliate of the national organization Club for Growth. Its purpose is to advance free-market beliefs in Wisconsin. O’Keefe’s advocacy came to the forefront during the political unrest surrounding Governor Scott Walker’s proposal and passage of 2011 Wisconsin Act 10, also known as the Budget Repair Bill. The Bill limited the collective bargaining rights of most public sector unions to wages. The Bill also increased the amounts that state employees paid in pension and health insurance premiums. O’Keefe, the Club, and its supporters immediately recognized the importance of the Bill to the Club’s mission of promoting principles of economic freedom and limited government. The Club viewed the Bill as a model that, if successful, might be replicated across the country. Throughout this period, the Club enlisted the advice of Richard “R.J.” Johnson, a long-time advisor to WCFG. Johnson is a veteran of Wisconsin politics and is intimately familiar with the political lay of the land. WCFG generally trusted Johnson’s professional judgment as to the best methods of achieving its advocacy goals. Because of the intense public interest surrounding the Bill, O’Keefe and Johnson believed that advocacy on the issues underlying the Bill could be effective in influencing public opinion. O’Keefe and Johnson were also concerned about the large amounts of money being spent by unions and other left-leaning organizations to defeat the bill. Accordingly, O’Keefe raised funds nationwide to support issue advocacy in favor of the Bill, and Johnson took an active role in creating WCFG’s communications and, where appropriate, advising WCFG to direct funding to other organizations that would be better suited to publish communications strategically advantageous to advancing the Club’s policy goals. One notable advocacy piece, which was fairly typical, aired in major markets in February of 2011. In it, WCFG argued that the reforms of the Budget Repair Bill were fair because they corrected the inequity of allowing public workers to maintain their pre-recession salaries and benefits while the salaries and benefits of private sector employees were being reduced. This piece did not name a candidate and did not coincide with an election. The Club was the first group to run communications supporting the collective bargaining reforms. See Support Governor Walker’s Budget Repair Bill, YouTube.com (Uploaded Feb. *86514, 2011).1 More generally, the Club’s issue advocacy related to the Budget Repair Bill, issues in the 2011 Wisconsin Supreme Court campaign, key issues in the 2011 and 2012 Senate recall campaigns, and key issues in the 2012 general election campaign. WCFG did not run issue communications related to the Walker campaign or the Walker recall petition. The Milwaukee Defendants — District Attorney John Chisholm, along with Assistant District Attorneys Bruce Landgraf and David Robles — had been investigating Governor Walker through the use of a John Doe proceeding beginning in 2010. The initial focus of the first proceeding was the embezzlement of $11,242.24 that Milwaukee County had collected for the local Order of the Purple Heart while Walker was serving as Milwaukee County Executive. From there, the first John Doe developed into a long-running investigation of all things Walker-related. See, e.g., ECF No. 7-2, Declaration of David B. Rivkin, Ex. 17 (Dave Umhoefer and Steve Schultze, John Doe Investigation Looks Into Bids to House County Worker, Milwaukee Journal Sentinel (Jan. 25, 2012))2, Ex. 18 (Assistant D.A. Still Silent on Doe Records Request, Wisconsin Reporter (Oct. 10, 2012)).3 The first John Doe resulted in convictions for a variety of minor offenses, including illegal fundraising and campaigning during work hours. Id., Ex. 20 (Steve Schultze, Former Walker Aide Pleads Guilty, Will Cooperate with DA, Milwaukee Journal Sentinel (Feb. 7, 2012)).4 During this timeframe, Walker was elected governor and survived a recall election. In August of 2012, Milwaukee County District Attorney John Chisholm initiated a new John Doe proceeding in Milwaukee County. Drawing on information uncovered in the first John Doe, the new investigation targeted alleged “illegal campaign coordination between Friends of Scott Walker [FOSW], a campaign committee, and certain interest groups organized under the auspices of IRC 501(c)(4)” — in other words, social welfare organizations like the Club. Id., Ex. 28 (Chisholm Letter to Judge Kluka, Aug. 22, 2013). In early 2013, Chisholm asked Wisconsin Attorney General J.B. Van Hollen to take the investigation statewide. Van Hollen refused, citing conflicts of interest. Van Hollen also explained as follows: This is not a matter, however, where such devices should be employed, even if they could be employed effectively. This is because there is no necessity, at this time, for my office’s involvement because there are other state officials who have equal or greater jurisdictional authority without the potential disabilities I have mentioned. The Government Accountability Board has statewide jurisdiction to investigate campaign finance violations, which may be civil or criminal in nature. Thus, there is no jurisdictional necessity to involve my office. Should the Government Accountability Board, after investigation, believe these matters are appropriate for civil enforcement, they have the statutory authority to proceed. Should the Government Accountability Board determine, after investigation, that criminal enforcement is appropriate, they may refer *866the matter to the appropriate district attorney. Only if that district attorney and a second district attorney declines to prosecute would my office have prose-cutorial authority. Id., Ex. 29 (Van Hollen Letter to Chisholm, May 31, 2013). Accordingly, Van Hollen was under the apparent impression that the GAB was not involved in the investigation, advising Chisholm that the GAB “as a lead investigator and first deci-sionmaker is preferable in this context.” Id. In reality, Chisholm had already consulted with the GAB, and it appears that the GAB was involved since the outset of the investigation. ECF No. 109-1, Chisholm’s Supplemental Response Brief at 16; ECF No. 120-7, Plaintiffs’ Supplemental Memorandum, Ex. I. In June of 2013, the GAB issued a unanimous resolution authorizing the use of its powers under Wisconsin Statutes, including “the issuance of subpoenas to any organization or corporation named in the John Doe materials, its agents and employees, and to any committee or individual named in the John Doe materials ...” ECF No. 120, Declaration of Samuel J. Leib, Ex. A. The GAB resolution also provided that the Board’s agents “may investigate any action or activity related to the investigation’s purpose, including criminal violations of Chapter 11.” Id. Thereafter, District Attorneys from four other counties — Columbia, Dane, Dodge, and Iowa — opened parallel John Doe proceedings. Concerned that the investigation would appear partisan, Chisholm wrote to then-presiding Judge Barbara Kluka that “the partisan political affiliations of the undersigned elected District Attorneys will lead to public allegations of impropriety. Democratic prosecutors will be painted as conducting a partisan witch hunt and Republican prosecutors will be accused of ‘pulling punches.’ An Independent Special Prosecutor having no partisan affiliation addresses the legitimate concerns about the appearance of impropriety.” Rivkin Dec., Ex. 28 (Aug. 22, 2013 Letter). Accordingly, at Chisholm’s request, Judge Kluka appointed former Deputy United States Attorney Francis Schmitz as special prosecutor to lead the five-county investigation. Early in the morning of October 3, 2013, armed officers raided the homes of R.J. Johnson, WCFG advisor Deborah Jordahl, and several other targets across the state. ECF No. 5-15, O’Keefe Declaration, ¶ 46. Sheriff deputy vehicles used bright floodlights to illuminate the targets’ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. Among the materials seized were many of the Club’s records that were in the possession of Ms. Jordahl and Mr. Johnson. The warrants indicate that they were executed at the request of GAB investigator Dean Nickel. On the same day, the Club’s accountants and directors, including O’Keefe, received subpoenas demanding that they turn over more or less all of the Club’s records from March 1, 2009 to the present. The subpoenas indicated that their recipients were subject to a Secrecy Order, and that their contents and existence could not be disclosed other than to counsel, under penalty of perjury. The subpoenas’ list of advocacy groups indicates that all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation. Id., Ex. 34 (O’Keefe Subpoena); see also Ex. 33 (Wisconsin Political Speech Raid, Wall Street Journal (Nov. 18, 2013), explaining that the subpoenas target “some 29 conservative groups, in-*867eluding Wisconsin and national nonprofits, political vendors and party committees”).5 The Club moved to quash the subpoenas and also to suspend inspection of privileged documents seized from its political associates. In response, the prosecutors argued that the subpoena targets and others were engaged in a “wide-ranging scheme to coordinate activities of several organizations with various candidate committees to thwart attempts to recall Senate and Gubernatorial candidates” through a “nationwide effort to raise undisclosed funds for an organization which then funded the activities of other organizations supporting or opposing candidates subject to recall.” Id., Ex. 38, State’s Consolidated Response to Motions to Quash. According to the prosecutors, R.J. Johnson controlled WCFG and used it as a “hub” to coordinate fundraising and issue advocacy involving FOSW and other 501(c)(4) organizations such as Citizens for a Strong America, Wisconsin Right to Life, and United Sportsmen of Wisconsin. Id. Judge Gregory Peterson, who became the presiding judge after Judge Kluka’s recu-sal, granted the motion to quash the subpoenas because there was “no evidence of express advocacy.” He then stayed his order pending appeal. Id., Ex. 48, 49. The current John Doe investigation has “devastated” O’Keefe’s ability to undertake issue advocacy with WCFG. O’Keefe Dec., ¶ 40. O’Keefe lost most of his fundraising abilities for the Club immediately because: (1) it would be unethical to raise money without disclosing that he is a target in a criminal investigation; (2) it would be unwise for prospects to invest the time required for them to independently evaluate any risks; (3) the secrecy order purports to bar O’Keefe from disclosing the facts of the investigation and the reasons he believes that WCFG is not guilty of any crimes; and (4) O’Keefe cannot assure donors that their information will remain confidential as prosecutors have targeted that information directly. As a result, O’Keefe estimates that the Club has lost $2 million in fundraising that would have been committed to issue advocacy. Id., ¶ 49. Moreover, O’Keefe is an active board member in several national organizations engaging in issue advocacy outside of WCFG. O’Keefe’s activities with those groups have been “dramatically impaired” in the following ways. First, O’Keefe’s own time has been diverted from national issues and investment activities to the response and defense against the John Doe investigation. Second, many of the people O’Keefe works with are named in the subpoenas and likely received subpoenas themselves, putting them on notice of the investigation and leading them to believe that O’Keefe may be in legal trouble and that they may suffer consequences by association. Third, the mailing of subpoenas around the country has disclosed to O’Keefe’s political network that there are risks to engaging in politics in Wisconsin. Many of the people O’Keefe has previously dealt with apparently do not want to communicate with O’Keefe about political issues. The subpoenas serve as a warning to those individuals that they should not associate with the Club. Id., ¶ 50. Ultimately, and perhaps most importantly, the timing of the investigation has frustrated the ability of WCFG and other right-leaning organizations to participate in the 2014 legislative session and election cycle. Id., ¶ 60. *868II. Analysis To obtain a preliminary injunction, O’Keefe and the Club must establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the “balance of equities” tips in their favor (i.e., denying an injunction poses a greater risk to O’Keefe and the Club than it does to the defendants), and that issuing an injunction is in the public interest. Smith v. Exec. Dir. of Ind. War Mem’l Comm’n, 742 F.3d 282, 286 (7th Cir.2014). Since “unconstitutional restrictions on speech are generally understood not to be in the public interest and to inflict irreparable harm that exceeds any harm an injunction would cause,” the plaintiffs’ “main obstacle to obtaining a preliminary injunction” is “demonstrating a likelihood of success on the merits.” Id. (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir.2012)). A. Likelihood of Success “Congress [and hence the States via application of the Fourteenth Amendment] shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. It bears repeating that we are a country with a government that is of the people, by the people, and for the people. Said another way, it is a country with a government that is of the Constitution, by the Constitution, and for the Constitution. The Constitution is a pact made between American citizens then and now to secure the blessings of liberty to themselves and to their posterity by limiting the reach of their government into the inherent and inalienable rights that every American possesses. In this larger sense, the government does not run the government. Rather, the people run their government, first within the framework of the restrictions placed on government by the Constitution, and second by the constitutional rights each citizen possesses that are superior to the operation of government. One of these rights is the First Amendment right to speak freely, which “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). The First Amendment is “[pjremised on mistrust of governmental power,” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and its vigorous use assures that government of the people remains so. When government attempts to regulate the exercise of this constitutional right, through campaign finance laws or otherwise, the danger always exists that the high purpose of campaign regulation and its enforcement may conceal self-interest, and those regulated by the Constitution in turn become the regulators. See generally Allison R. Hayward, Revisiting the Fable of Reform, 45 Harv. J. on Legis. 421 (2008). And “those who govern should be the last people to help decide who should govern.” McCutcheon v. Fed. Election Comm’n, — U.S. ——, 134 S.Ct. 1434, 1441-42, 188 L.Ed.2d 468 (2014) (emphasis in original). In this respect, First Amendment protection “reaches the very vitals of our system of government,” as explained by Justice Douglas: Under our Constitution it is We the People who are sovereign. The people have the final say. The legislators are their spokesmen. The people determine through their votes the destiny of the nation. It is therefore important — vitally important — that all channels of communication be open to them during every election, that no point of view be restrained or barred, and that the people *869have access to the views of every group in the community. United States v. Int’l Union United Auto., Aircraft & Agric. Workers of Am., 352 U.S. 567, 593, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957) (dissenting opinion). Therefore any attempt at regulation of political speech is subject to the strictest scrutiny, meaning that it is the government’s burden to show that its regulation is narrowly tailored to achieve the only legitimate goal of such regulation— preventing quid pro quo corruption or the appearance thereof as it pertains to elected officials or candidates. Applying strict scrutiny to this case, the plaintiffs have shown, to the degree necessary on the record before the Court, that their First Amendment rights are being infringed by the defendants’ actions. The defendants are pursuing criminal charges through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech rights that on then-face are not subject to the regulations or statutes the defendants seek to enforce. This legitimate exercise of O’Keefe’s rights as an individual, and WCFG’s rights as a 501(c)(4) corporation, to speak on the issues has been characterized by the defendants as political activity covered by Chapter 11 of the Wisconsin Statutes, rendering the plaintiffs a subcommittee of the Friends of Scott Walker (“FOSW”) and requiring that money spent on such speech be repoi’ted as an in-kind campaign contribution. This interpretation is simply wrong. The defendants further argue that the plaintiffs’ expenditures are brought within the statute because they were coordinated by enlisting the support of R.J. Johnson, a representative and agent of FOSW. Coupled with Governor Walker’s promotion and encouragement, defendants go on to argue that this activity is the type of coordination and pre-planning that gives rise to a quid pro quo corruption appropriate for prosecution. This additional factor also fails as a justification for infringing upon the plaintiffs’ First Amendment rights. A candidate’s promotion and support of issues advanced by an issue advocacy group in its effort to enhance its message through coordination cannot be characterized as quid pro quo corruption, “[t]he hallmark of [which] is the financial quid pro quo: dollars for political favors.” Fed. Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985). In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Supreme Court established a distinction between spending for political ends and contributing to political candidates. Contribution limits are subject to intermediate scrutiny, but expenditure limits get higher scrutiny because they “impose significantly more severe restrictions on protected freedoms of political expression and association.” Buckley at 23, 96 S.Ct. 612. “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id. at 19, 96 S.Ct. 612. Therefore, laws that burden spending for political speech “get strict scrutiny and usually flunk.” Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 153 (7th Cir.2011) (collecting cases). The standard to apply in these cases was recently made clear by the Supreme Court in McCutcheon. Any campaign finance regulation, and any criminal prosecution resulting from the violation thereof, must target activity that results in *870or has the potential to result in quid pro quo corruption. As the Court has explained: In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit political speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access ... are not corruption.’ They embody a central feature of democracy — that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns. Any regulation must target instead what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange or an official act for money. ‘The hallmark of corruption is the financial quid pro quo: dollars for political favors.’ Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern. McCutcheon, 134 S.Ct. at 1441-42 (emphases in original) (internal citations omitted). In short, combating quid pro quo corruption, or the appearance thereof, is the only interest sufficient to justify campaign-finance restrictions. “Over time, various other justifications for restricting political speech have been offered — equalization of viewpoints, combating distortion, leveling electoral opportunity, encouraging the use of public financing, and reducing the appearance of favoritism and undue political access or influence — but the Court has repudiated them all.” Borland at 153-54 (collecting cases). The First Amendment “prohibits such legislative attempts to ‘fine-tune’ the electoral process, no matter how well intentioned.” McCutcheon at 1450. Stated another way, the “constitutional line” drawn in McCutcheon after its 40-year analysis is a ringing endorsement of the full protection afforded to political speech under the First Amendment. This includes both express advocacy speech — i.e., speech that “expressly advocates the election or defeat of a clearly identified candidate,” Buckley at 80, 96 S.Ct. 612, and issue advocacy speech. Only limited intrusions into the First Amendment are permitted to advance the government’s narrow interest in preventing quid pro quo corruption and then only as it relates to express advocacy speech. This is so because express advocacy speech is enabled by the infusion of money which can be called “express advocacy money.” Express advocacy money is viewed in two ways. The fundamental view is that express advocacy money represents protected First Amendment speech. Another view of express advocacy money, along with its integrity as First Amendment political speech, is the view that it may have a quid pro quo corrupting influence upon the political candidate or political committee to which it is directly given. That view holds that unlimited express advocacy money given to a political candidate may result in the quid pro quo corruption that McCutcheon and other cases describe as “dollars for political favors,” or the “direct exchange of an official act for money.” Hence regulation setting contribution limits on express advocacy money and preventing the circumvention of those limits by coordination is permitted. *871Conversely, issue advocacy, which is enabled by what we can call “issue advocacy money,” is not subject to these limitations because it is viewed only one way, and that is as protected First Amendment speech. This is not a recognition that quid pro quo corruption is the only source of corruption in our political system or that issue advocacy money could not be used for some corrupting purpose. Rather, the larger danger is giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself. It is a recognition that maximizing First Amendment freedom is a better way to deal with political corruption than allowing the seemingly corruptible to do so. As other histories tell us, attempts to purify the public square lead to places like the Guillotine and the Gulag. The Court now turns to the defendants’ efforts to regulate the plaintiffs’ issue advocacy speech. As stated, this type of speech is viewed by the Supreme Court as pure First Amendment speech, does not have the taint of quid pro quo corruption that exists with express advocacy speech, and is not subject to regulation. Under Wisconsin’s campaign finance law, an expenditure or “disbursement,” Wis. Stat. § 11.01(7), is for “political purposes” when it is done “for the purpose of influencing” an election. § 11.01(16). These types of expenditures and disbursements are subject to reporting requirements. §§ 11.05, 11.06. Failure to comply with these requirements subject the speaker to civil and criminal penalties. §§ 11.60,11.61. In Buckley, the Court held -that the same operative language — “for the purpose of influencing” an election — can only apply to “funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular ... candidate.” Buckley at 80, 96 S.Ct. 612. Later, for the “reasons regarded as sufficient in Buckley,” the Court refused to adopt a test which turned on the speaker’s “intent to affect an election. The test to distinguish constitutionally protected political speech from speech that [the government] may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights.... A test turning on the intent of the speaker does not remotely fit the bill.” Fed. Election Comm’n v. Wis. Right to Life, Inc. (WRTL), 551 U.S. 449, 467-68, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). This is because an intent-based standard “offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” Buckley at 43, 96 S.Ct. 612. Accordingly, “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” WRTL at 469-70, 127 S.Ct. 2652; Buckley at 44 n. 52, 96 S.Ct. 612 (statute’s reach must be limited to “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject’”). It is undisputed that O’Keefe and the Club engage in issue advocacy, not express advocacy or its functional equivalent. Since § 11.01(16)’s definition of “political purposes” must be confined to express advocacy, the plaintiffs cannot be and are not subject to Wisconsin’s campaign finance laws by virtue of their expenditures on issue advocacy. However, the defendants argue that issue advocacy does not create a free-speeeh *872“safe harbor” when expenditures are coordinated between a candidate and a third-party organization. Barland at 155 (citing Fed. Election Comm’n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 465, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001)); see also Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir.2013). O’Keefe and the Club maintain that they did not coordinate any aspect of their communications with Governor Walker, Friends of Scott Walker, or any other candidate or campaign, and the record seems to validate that assertion.6 However, the Court need not make that type of factual finding because — once again — the phrase “political purposes” under Wisconsin law means express advocacy and coordination of expenditures for issue advocacy with a political candidate does not change the character of the speech. Coordination does not add the threat of quid pro quo corruption that accompanies express advocacy speech and in turn express advocacy money. Issue advocacy money, like express advocacy money, does not go directly to a political candidate or political committee for the purpose of supporting his or her candidacy. Issue advocacy money goes to the issue advocacy organization to provide issue advocacy speech. A candidate’s coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of “favors for cash.” Logic instructs that there is no room for a quid pro quo arrangement when the views of the candidate and the issue advocacy organization coincide.7 Defendants’ attempt to construe the term “political purposes” to reach issue advocacy would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption. As the defendants argue, the Club would become a “subcommittee” of a campaign committee simply because it coordinated therewith. Wis. Stat. § 11.10(4). If correct, this means that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right to engage in political speech. The legislative tail would wag the constitutional dog.8 *873Maximizing the capability of 501(c)(4) organizations maximizes First Amendment political freedom, squares with Justice Douglas’ exhortation in Int’l Union, supra, that “all channels of communication” should be open to the citizenry, and may be the best way, as it has been in the past, to address problems of political corruption. As long ago as 1835, Alexis de Tocqueville recognized that the inner strength of the American people is their capacity to solve almost any problem and address any issue by uniting in associations. Among those associations were citizen political associations utilized to prevent the “encroachments of royal power.” Democracy in America 595 (Arthur Goldhammer trans., Library of America ed., 2004). Because associations can serve the same purpose today, their efforts should be encouraged, not restricted. To sum up, the “government’s interest in preventing actual or apparent corruption — an interest generally strong enough to justify some limits on contributions to candidates — cannot be used to justify restrictions on independent expenditures.” Barland at 153 (citing Citizens United at 357, 130 S.Ct. 876). “Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” Citizens United at 365, 130 S.Ct. 876. Issue ads by a 501(c)(4) corporation “are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them.” WRTL at 478-79, 127 S.Ct. 2652. To equate these ads to contributions is to “ignore their value as political speech.” Id. at 479, 127 S.Ct. 2652. While advocating a certain viewpoint may endear groups like the Club to like-minded candidates, “ingratiation and access ... are not corruption.” Citizens United at 360, 130 S.Ct. 876. O’Keefe and the Club obviously agree with Governor Walker’s policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club’s interests are already aligned with Walker and other conservative politicians. Such ads are meant to educate the electorate, not curry favor with corruptible candidates. “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to ... quid pro quo corruption.” McCutcheon at 1450 (emphasis added). While the defendants deny that their investigation is motivated by animus towards the plaintiffs’ conservative viewpoints, it is still unlawful to target the plaintiffs for engaging in vigorous advocacy that is beyond the state’s regulatory reach. The defendants stress that 501(c)(4) corporations command huge sums of money because there are no restrictions on contributions, and are therefore subject to abuse if they are coordinated. In addition, they emphasize that donors have a right to remain anonymous which flies in the face of the public’s right to know. Again, the answer to the first concern is simply that the government does not have a right to pursue the possibility of corruption, only that which evinces a quid pro quo corruption. Defendants’ view that the subject coordination could result in quid pro quo corruption is “speculation” that “cannot justify ... substantial intrusion on First Amendment rights.” McCutcheon at 1456. For it is not the extent of the coordination that matters, it is whether the issue advocacy money is used for express advocacy, and the clearest evidence of whether or not it is used for express advocacy is the type of speech produced by the money used to produce it. “The First Amend*874ment protects the resulting speech.” Citizens United at 351, 130 S.Ct. 876 (emphasis added). As it relates to the facts of this case, no investigation, much less a secret one, is required to discover any abuse of Chapter 11 of the Wisconsin Statutes. As to the second concern of anonymity, the law simply states that 501(c)(4) donors have a right to remain anonymous. The supporting rationale is that these donors serve the First Amendment by promoting issue advocacy, and that does not trigger the need for the disclosure required when one is engaged in express advocacy. “Political speech is so ingrained in our culture that speakers find ways to circumvent campaign finance laws. Our Nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” Citizens United at 364, 130 S.Ct. 876 (internal citations omitted). The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is “ingrained in our culture.” Id. Therefore, for all of the foregoing reasons, the plaintiffs are likely to succeed on their claim that the defendants’ investigation violates their rights under the First Amendment, such that the investigation was commenced and conducted “without a reasonable expectation of obtaining a valid conviction.” Kugler v. Helfant, 421 U.S. 117, 126 n. 6, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975); see also Collins v. Kendall Cnty., Ill., 807 F.2d 95, 101 (7th Cir.1986); Wilson v. Thompson, 593 F.2d 1375, 1387 n. 22 (5th Cir.1979). B. Remaining Factors Having established that the plaintiffs are likely to succeed, the remaining factors can be addressed summarily, if at all. The “Toss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,’ and the ‘quantification of injury is difficult and damages are therefore not an adequate remedy.’ ” Alvarez, 679 F.3d at 589 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir.1982)). Moreover, “if the moving party establishes a likelihood of success on the merits, the balance of harms normally favors granting preliminary injunctive relief because the public interest is not harmed by preliminarily enjoining the enforcement of a statute that is probably unconstitutional.” Id. (citing Joelner v. Vill. of Wash. Park, Ill., 378 F.3d 613, 620 (7th Cir.2004)). Put another way, “injunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.2006). Defendants argue that the issuance of an injunction would throw into question the validity of GAB’s interpretation and administration of Wisconsin’s campaign finance laws, allowing candidates to solicit large amounts of money through the guise of a 501(c)(4) organization and then direct those expenditures to benefit the candidates’ campaign. This is just another way of saying that the public interest is served by enforcing a law that restricts First Amendment freedoms. Obviously, the public interest is served by the exact opposite proposition. . C. Security Federal Rule of Civil Procedure 65(c) provides that courts can issue preliminary injunctive reliéf “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have *875been wrongfully enjoined or restrained.” The Court will not require the plaintiffs to post security, although it will consider a renewed application if the defendants choose to file one. See, e.g., N.Y. Civil Liberties Union v. N.Y. City Transit Auth., 675 F.Supp.2d 411, 439 n. 37 (S.D.N.Y.2009) (refusing to require security in a First Amendment case because there was “no evidence in the record to support a finding that Defendant will suffer any monetary damages as a result of this injunction”); see also Huntington Learning Ctr., Inc. v. BMW Educ., LLC, No. 10-C-79, 2010 WL 1006545, at *1 (E.D.Wis. March 15, 2010) (noting that the Court can dispense with the bond requirement when there is “no realistic likelihood of harm to the defendant from enjoining his or her conduct. Furthermore, [a] bond may not be required ... when the movant has demonstrated a likelihood of success”) (internal citations omitted). III. Conclusion Buckley’s distinction between contributions and expenditures appears tenuous. McCutcheon at 1464 (“today’s decision, although purporting not to overrule Buckley, continues to chip away at its footings”) (Thomas, J., concurring). As Justice Thomas wrote, “what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply ‘two sides of the same First Amendment coin,’ and our efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law.” Id. Even under what remains of Buckley, the defendants’ legal theory cannot pass constitutional muster. The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect. * * * NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT the plaintiffs’ motion to preliminarily enjoin Defendants Chisholm, Landgraf, Robles, Nickel and Schmitz from continuing to conduct the John Doe investigation is GRANTED. The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation. Plaintiffs and others are hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants’ investigation. Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court. . http://www.youlube.com/watch?v=y YEgoxdxzAO. . http://rn.jsonline.com/topstories/138020933. him. . http://watchdog.org/58691/wiassistant-d-a-still-silent-on-doe-records-request/. . http://www.jsonline.com/news/milwaukee/ former-walker-aide-pleadsguilty-to-cooperate-withda-oc43oit-l38874409. html. . http://online.wsj.com/news/articles/SB 1000142405270230479940457915595328655 2832. . Plaintiffs’ Exhibit H, ECF No. 120-6. . Moreover, if Wisconsin could regulate issue advocacy — coordinated or otherwise — it would open the door to a trial on every ad “on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad ... if its only defense to a criminal prosecution would be that its motives were pure.” WRTL at 468, 127 S.Ct. 2652. . For example, if the Boy Scouts coordinated a charitable fundraiser with a candidate for office, the Boy Scouts would become a campaign subcommittee subject to the requirements and limitations of Wisconsin campaign-finance laws, exposing them to civil and criminal penalties for touting the candidate’s support. See, e.g, Clifton v. Fed. Election Comm’n, 114 F.3d 1309, 1314 (1st Cir.1997) ("it is beyond reasonable belief that, to prevent corruption or illicit coordination, the government could prohibit voluntary discussions between citizens and their legislators and candidates on public issues”). Similarly, if a 501(c)(4) organization like the Club coordinated a speech or fundraising dinner with a Wisconsin political candidate, all of its subsequent contributions and expenditures would be attributable to that candidate’s committee and subject to the limitations of Wisconsin law. This would preclude the organization from making any independent expenditures after initially engaging in coordinated issue advocacy. Wis. Stat. §§ 11.05(6), 11.16(l)(a). It would also bar the organization from accepting corporate contributions which could then, in turn, be used for independent expenditures. § 11.38.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217473/

MEMORANDUM ** Andres Ernesto Hernandez appeals pro se the judgment dismissing his civil rights action as time-barred. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision that a claim is barred by the statute of limitations de novo. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1175 (9th Cir.2000). We vacate and remand. *807Hernandez filed his initial complaint on September 30, 1999. The action was later dismissed without prejudice because Hernandez failed to comply with court orders. Hernandez then filed a “motion to show cause” requesting that the court reopen the action. He explained that he had been unable to attend court appearances because he was incarcerated. The district court construed the motion as a motion to reopen, and, in an order filed May 2, 2001, granted Hernandez leave to “re-file his complaint in this action.” Hernandez filed a “first amended complaint,” which was filed under the same case number assigned to his original complaint. The defendant filed a motion to dismiss arguing that the action was time-barred. In deciding the motion, the district court apparently used the date Hernandez filed his first amended complaint as the initial filing date and concluded that the action was untimely. In the district court’s prior order of May 2, 2001 granting leave to refile a complaint, however, the court appeared to relieve Hernandez from the judgment of dismissal by reopening the action. See Fed.R.Civ.P. 60(b). This conclusion is buttressed by the court’s continued use of the original case number. Therefore, the initial filing date of September 30, 1999 should have been used in determining timeliness, see Fed.R.Civ.P. 15(c)(2), and the action was timely. See Papa v. United States, 281 F.3d 1004, 1009 (9th Cir.2002) (Bivens claim has one-year statute of limitations under California law). Hernandez also appeals the denial of his request for appointment of counsel. We affirm the district court’s denial of appointment of counsel because Hernandez failed to demonstrate exceptional circumstances. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.1997). Appellees shall bear the costs on appeal. VACATED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217474/

MEMORANDUM ** Omero Irael Diaz-Castillo, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s denial of his application for asylum and withholding of deportation. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We deny the petition. We review the BIA’s factual determinations for substantial evidence, and must uphold the BIA’s decision unless the evidence compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Substantial evidence supports the BIA’s conclusion that Diaz-Castillo did not show persecution on account of imputed political opinion in light of his testimony that guerrillas beat him only because they were looking for his father. See Cruz-Navarro v. INS, 232 F.3d 1024, 1030 (9th Cir.2000). Because Diaz-Castillo did not meet the standard for asylum, he could not satisfy the standard for withholding of deportation. See Li v. Ashcroft, 312 F.3d 1094, 1099 (9th Cir.2002). We do not reach Diaz-Castillo’s contention that the BIA erred by finding him not credible because the record reflects that neither the IJ nor the BIA made an adverse credibility finding. Diaz-Castillo’s motion to hold the proceedings in abeyance is denied. We stay the mandate for 90 days and instruct Diaz-Castillo to a file a status report with the court every 30 days. The mandate shall issue 90 days after the date of this memorandum. The court sua sponte changes the docket to reflect that John Ashcroft, Attorney General, is the proper respondent. The Clerk shall amend the docket to reflect the above caption. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217475/

MEMORANDUM** Francisco Humberto Hernandez, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s denial of his motion to terminate removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. See Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134 (9th Cir.2001) (noting that “[w]e retain jurisdiction to determine our own jurisdiction”). We review de novo, Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir.2002), and we dismiss the petition. Hernandez contends that he is not removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony at any time after “admission,” because he entered the United States without inspection, and then adjusted to lawful permanent resident status under the Special Agricultural Worker program. We disagree. Because Hernandez was “lawfully admitted” as a legal permanent resident through adjustment of status before he was convicted of an aggravated felony, the BIA correctly denied Hernandez’s request to terminate removal proceedings. See Ocampo-Duran, 254 F.3d at 1134-35. We dismiss the petition for lack of jurisdiction. See id. at 1135. PETITION DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217476/

MEMORANDUM** Jonas Yuri Perez-Baten, and Griselda Carolina De Leon-Perez, husband and wife, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying asylum and withholding of deportation. Because the transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a(a). We deny the petition. We review the BIA’s factual determinations for substantial evidence, and must uphold the BIA’s decision unless the evidence compels a contrary result. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To establish eligibility for asylum a petitioner must show persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Substantial evidence supports the BIA’s conclusion that the guerillas attempted to forcibly recruit Perez-Baten because of his knowledge and military *811training, and not on account of a protected ground. Cf. INS v. Elias-Zacarias, 502 U.S. 478, 483 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (guerillas’ attempt to recruit members to augment their troops rather than show their displeasure does not constitute persecution on account of a protected ground). Similarly, any threats against Leon-Perez were motivated by a desire for information regarding PerezBaten, and not on account of her political opinion or any other protected ground. See Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003). Because Perez-Baten and Leon-Perez did not meet the standard for asylum, it follows that they did not satisfy the standard for withholding of deportation. See Li v. Ashcroft, 312 F.3d 1094, 1099 (9th Cir.2002). We are not persuaded by Perez-Baten and Leon-Perez’s contention that the IJ erred by admitting into evidence the 1997 and 1998 Guatemalan country reports. The court sua sponte changes the docket to reflect that John Ashcroft, Attorney General, is the proper respondent. The Clerk shall amend the docket to reflect the above caption. PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217477/

MEMORANDUM ** *812Taxpayer Edward K. Metcalf appeals pro se the tax court’s order denying his claim for overpayment of taxes on his individual retirement account (“IRA”) income for the 1996 tax year. We have jurisdiction to review the final order of the tax court under 26 U.S.C. § 7482. We review the tax court’s legal conclusions de novo, and its factual findings for clear error. Estate of Rapp v. Comm’r, 140 F.3d 1211, 1215 (9th Cir.1998). We affirm. The tax court properly denied Metcalfs claim for overpayment because Metcalfs 1996 IRA distribution was taxable as income when Metcalf failed to roll over the distribution into another IRA account within 60 days of receipt. See 26 U.S.C. § 408(d)(l)(3). Metcalfs contention that 26 U.S.C. § 6511(a) allows three years to roll over his IRA distribution lacks merit because that provision refers only to the time in which an amended return may be filed. See 26 U.S.C. § 6511(a); see also Anderson v. United States, 966 F.2d 487, 488 n. 2 (9th Cir.1992). Metcalfs remaining contentions also lack merit. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217478/

MEMORANDUM* AND ORDER Kwang-Wei Han (“Han”) appeals pro se, via the Bankruptcy Appellate Panel, the Bankruptcy Court’s order authorizing the sale of real property belonging to a corporation in which Han is the sole shareholder. We dismiss the appeal, because the real property has been sold to a third party and that sale has been concluded, rendering this appeal moot. See Nat’l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1180-81 (9th Cir.1998). Han’s Request for Judicial Notice, filed April 9, 2003, is denied as moot. APPEAL DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217479/

MEMORANDUM* AND ORDER Kwang-Wei Han (“Han”) appeals pro se, via the Bankruptcy Appellate Panel, the Bankruptcy Court’s order authorizing the sale of real property belonging to a corporation in which Han is the sole shareholder. We dismiss the appeal, because the real property has been sold to a third party and that sale has been concluded, rendering this appeal moot. See Nat’l Mass Media Telecomm. Sys., Inc. v. Stanley (In re Nat’l Mass Media Telecomm. Sys., Inc.), 152 F.3d 1178, 1180-81 (9th Cir.1998). Han’s Request for Judicial Notice, filed April 9, 2003, is denied as moot. APPEAL DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217480/

MEMORANDUM* Petitioner relied on the district court’s incorrect advice and is thus entitled to equitable tolling during the time his first federal petition was pending. See Smith v. Ratelle, 323 F.3d 813, 819 (9th Cir.2003) (finding equitable tolling where the district court “provided a misleading explanation of [petitioner’s] options to avoid a procedural default”); see also Ford v. Hubbard, 305 F.3d 875, 889 n. 14 (9th Cir.2002) (noting the “district court’s error in failing properly and fully to inform [petitioner] about his options with respect to the mixed petitions and in misleading him as to the legal effect of a dismissal of his petitions” justified equitable tolling). Because the tolling rendered petitioner’s claim timely, the court below erred by dismissing it. REVERSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217481/

MEMORANDUM * Appellant LaSonia Mansfield challenges the district court’s grant of summary judgment in favor of appellee City and County of San Francisco on her claims that she was terminated because of her race and in *814retaliation for complaints of continuing discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Because we find her arguments lack merit, we affirm the district court.1 Mansfield contends that she was the victim of a pattern and practice of discrimination and retaliatory treatment based on incidents that occurred when she began work at a city jail in November, 1994, and that the pattern continued up to and caused her termination. She argues that the district court erred in striking certain evidence that was found not to support a claim of discrimination or retaliation in earlier state-court proceedings against the same defendant. We review de novo. See In re Harmon, 250 F.3d 1240, 1245 (9th Cir.2001). The precise issue that was before the state courts was whether Mansfield suffered discrimination and retaliation, not whether her termination was illegal. However, we agree with the district court that Mansfield may not litigate her termination claim in federal court by relying on the same evidence that was presented in state court and was found insufficient to establish the employer’s alleged discriminatory intent. The district court did not err in denying Mansfield’s motion to strike. The differences between Mansfield’s proposed statement of facts and that of the City were not material. See generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review de novo the district court’s finding that Mansfield failed to establish a prima facie case of discrimination or retaliation under Title VII. As to her claim of retaliation, we agree that Mansfield failed to present evidence that she engaged in a protected activity from May 9, 1997, through August 30, 1999. As to her claim of discriminatory termination, Mansfield has failed to raise any inference of discrimination. Finally, we exercise our discretion and deny the City’s motion for damages and costs pursuant to Fed. R.App. P. 38. The judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . We also hold that although Mansfield and the city failed to file the proper forms consenting to the adjudication of this matter by a United States Magistrate Judge, the intent to consent was plain and unequivocal, and, accordingly, we have appellate jurisdiction. See Hajek v. Burlington N. R.R., 186 F.3d 1105, 1107-10 (9th Cir.1999).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217482/

MEMORANDUM** The government appeals the district court’s grant of an eleven-month downward departure in defendant Leonardo Martinez-Lorenzo’s sentence. We vacate the sentence and remand for resentencing. The district court has discretion in deciding to depart from the Sentencing Guidelines in certain circumstances. See Koon v. United States, 518 U.S. 81, 98-99, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We conclude that the district court did not abuse its discretion in determining that the defendant’s personal rehabilitation from his prior offense and his low likelihood of reoffending justify a downward departure. The district court reached the range permitting a thirty-month sentence, however, by departing on both the criminal history axis and the offense level axis. The appropriate departure on the basis of likelihood of recidivism is only in the criminal history category, not the offense level. See United States v. Martin, 278 F.3d 988, 1003 (9th Cir.2002). Nothing in the district court’s analysis supports a departure on the offense level axis. We therefore must VACATE Martinez-Lorenzo’s sentence and REMAND for resentencing. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7217483/

MEMORANDUM** James K. Boaz appeals the dismissal of his malicious prosecution suit against the defendant, arguing that the district court incorrectly applied Michigan law, rather than California law. California law applies in light of California’s interest in protecting its citizens, including Boaz, from malicious prosecution. See Engel v. CBS, Inc., 981 F.2d 1076, 1081 (9th Cir.1992). More*816over, Boaz did not have minimum contacts with Michigan, did not avail himself of Michigan law, and successfully challenged Michigan as the proper venue for the defendant’s underlying suit. REVERSED AND REMANDED. This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224360/

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE Plaintiff Debra Dornell (“Dornell”) sued her former employer Defendant City of San Mateo (“City”) for gender discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000 et seq. (“Title VII”), and California Fair Employment and Housing Act, Cal. Gov’t Code § 12940 et seq. (“FEHA”), as well as constructive termination in violation of public policy. The City moves to dismiss Dornell’s First Amended Complaint (“FAC”). See MTD (dkt.37). As explained below, the Court GRANTS the Motion in part and DENIES the Motion in part. I. BACKGROUND Dornell alleges as follows. In March 2006, Dornell began working for the City as a part-time fire inspector at the San Mateo Fire Department (“SMFD”). FAC (dkt.32) ¶ 7. When she was hired, Fire Marshal Michael Leong (“Leong”) and Deputy Fire Marshal Mo Dong (“Dong”) told her that she would conduct housing inspections for one year, after which she would train for inspections that would make her eligible for a full-time position. Id. ¶ 9. After one year of working for the City, Dornell asked her supervisors about a full-time position. Id. ¶ 11. Leong replied that she was ineligible for any full-time positions due to her lack of experience. Id. Yet, when she requested new assignments, Leong and Deputy Fire Marshal Bill Euchner (“Euchner”) ignored, ridiculed, or denied her requests. Id. She volunteered on multiple occasions to take on a high-rise inspection, but Euchner repeatedly gave such assignments to male employees. Id. ¶¶ 11-12. On multiple occasions, Dornell complained to SMFD Chief Daniel Belville (“Belville”) that she was being limited to residential inspections. Id. ¶ 13. Dornell believes that Belville then spoke with Leong and Euchner and instructed them to give her more advanced assignments. Id. In January 2010, Leong and Euchner told Dornell that she would begin conducting Commercial Inspection Program (“CIP”) inspections, in addition to residential inspections. Id. But, unlike her male counterparts doing CIP inspections, Leong and Euchner imposed on her a quota requiring her to bring in at least $35,000 to the SMFD. Id. ¶ 14. Dornell, who worked only two days per week, “knew it would be impossible ... to meet this new expectation.” Id. By June 2010, Dornell had failed to meet her quota. Id. ¶ 15. In July 2010, Euchner informed Dornell of “new polices” that did not apply to male inspectors. Id. ¶ 16. These policies required that she increase her CIP inspections, cut her hours, take a full hour lunch break, come in later than her usual 7:00 a.m. time, and submit additional paperwork for scheduling changes that male inspectors did not submit. Id. Dornell’s workload was the equivalent of three male inspectors, and when a male inspector noticed the unfair distribution of work and offered to help, Leong and Euchner refused to let him do so. Id. ¶ 17. That same month, Euchner did not adhere to company policy of providing a warning first, and instead issued Dornell a write-up on two trivial matters. Id. ¶ 18. The *903write-up stated that she improperly wore her employee uniform to a training with Fire Prevention Officers, even though that was standard practice, and that she “failed to follow the chain of command” when she asked Belville, instead of Euchner, to write a letter as part of her State certification process. Id.1 In March 2010, Dornell met with Bel-ville, who was surprised to learn that Dor-nell was still required to respond to housing complaints. Id. ¶ 19. Dornell, fearing retaliation, asked Belville not to intervene again. Id. That month, Dornell sought medical attention for severe stress, after which her doctor recommended that she take a leave of absence from work until the end of the month. Id. ¶ 20. In August 2010, Dornell emailed Belville to inform him that her discriminatory treatment had worsened. Id. ¶ 22. In response, Belville convened a meeting "with Leong, Euchner, and a Human Relations Department employee, and instructed them to treat Dor-nell, also present at the meeting, fairly. Id. In a follow up meeting in October 2010, Belville again directed Leong to provide Dornell with the requisite field training. Id. ¶ 23. Nevertheless, Leong did not answer Dornell’s questions and on one occasion did not show up to accompany her to a scheduled training inspection. Id. ¶ 24. In early 2012, Euchner insinuated that Dornell should retire because her husband was retiring. Id. ¶ 25. And, in January 2012, Leong told Dornell a story about him once hitting a man on a head with a baseball bat, which she found threatening. Id. ¶ 26. Before Belville’s retirement in June 2012, he told Dornell that he “had her back” and would make the new Chief aware of her situation. Id. ¶ 27. At that point, Dornell realized that the alleged discrimination would persist. Id. Following her psychologist’s advice, on May 9, 2012, Dornell took leave from work due to stress. Id. ¶ 28. On September 18, 2012, Dornell sent a letter of resignation to the City. Id. ¶ 29. During her six and a half years working for the City, she was the only female to hold her position and she received favorable reviews from customer surveys and Belville. Id. ¶¶ 7-8. On June 14, 2012, after taking leave but before resigning, Dornell filed a charge for gender discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 28. On June 22, 2012, Dornell received a right-to-sue letter from the Department of Fair Employment and Housing (“DFEH”). Id. ¶45. On October 31, 2012, the EEOC issued Dor-nell a right-to-sue letter. Id. ¶ 34. On November 29, 2012, Dornell filed a Complaint with this Court alleging only federal claims: gender discrimination, harassment, and retaliation in violation of Title VII. Compl. (dkt.l) at 10-11. On February 27, 2013, the parties stipulated that Dornell is not bringing a harassment claim. Stipulation Order (dkt.15). On August 28, 2013, Dornell filed a supplemental claim with the DFEH, asserting that she believed she was “constructively terminated.” FAC ¶ 45. That same day, the DFEH issued her a right-to-sue letter. Id. On August 30, 2013, Dornell filed her FAC, which set forth the following causes of action: (1) gender discrimination and harassment in violation of Title VII; (2) retaliation in violation of Title VII; (3) gender discrimination and harassment in violation of FEHA;2 (4) retaliation in violation of FEHA; and (5) *904constructive termination and discrimination in violation of public policy. Id. ¶¶ 30-57. The City now moves to dismiss. See MTD.3 II. LEGAL STANDARD A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal courts are presumed to lack subject matter jurisdiction, and the plaintiff bears the burden of establishing that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court may look beyond the complaint to evaluate subject matter jurisdiction. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (citing Gemtel Corp. v. Cmty. Redev. Agency, 23 F.3d 1542, 1544 (9th Cir.1994)). A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir.2003) (citing Fed.R.Civ.P. 12(b)(6)). Dismissal is proper if a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive dismissal, a complaint must contain factual allegations sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). When determining plausibility, allegations pertaining to material facts are accepted as true for purposes of the motion and construed in the light most favorable to the nonmoving party. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998). If dismissal is ordered, the plaintiff should be granted leave to amend unless it is clear that the claims could not be saved by amendment. Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir.2007). III. DISCUSSION The City moves to dismiss Dornell’s FAC on three grounds: (A) the parties already stipulated that Dornell is not bringing a claim for harassment; (B) a common law claim for constructive termination in violation of public policy cannot be brought against a public entity; and (C) the Court does not have jurisdiction over the claims because Dornell failed to properly exhaust her Title VII claims and because she did not timely file her FEHA claims. See generally MTD. A. Dornell Is Not Bringing Claims For Harassment The City first contends that Dornell already stipulated that she is not bringing claims for harassment under Title VII. MTD at 1. Dornell concedes this point, stating that she “did not intend to assert a claim for gender harassment in violation of federal or state law.” Opp’n (dkt.39) at 1, 7. The Court therefore DISMISSES with prejudice the first and third causes of action to the extent that they allege harassment. B. A Statutory Claim For Constructive Termination In Violation Of Public Policy Cannot Be Brought Against A Public Entity The City next argues that Dornell’s fifth claim for constructive discharge in *905violation of public policy cannot be asserted against a public entity. MTD at 7 (citing Cal. Gov’t Code § 815). Dornell agrees, but asks the Court to grant her leave to amend to assert a constitutionally-based claim for constructive termination. Opp’n at 11-12 (citing Miklosy v. Regents of Univ. of Cal., 44 Cal.4th 876, 899, 80 Cal.Rptr.3d 690, 188 P.3d 629 (2008) (“The Legislative Committee Comment to section 815 states: ‘This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution’ ”)). Although the City points out that Dor-nell’s Opposition “has not indicated what constitutional violation she is going to assert, what facts in her complaint support the same, and whether such alleged violation is being brought under state or federal law,” see Reply (dkt.43) at 1, amendment is not necessarily futile. In fact, Dornell’s FAC explicitly states that her fifth cause of action is a violation of not only common law but also her constitutional rights under California Constitution, Article 1, section 8, which prohibits disqualification from entering or pursuing a business on the basis of sex. FAC ¶ 54. Because this constitutional provision could support a viable claim for constructive termination in violation of public policy, the Court DISMISSES the fifth cause of action with leave to amend. C. The Court Has Jurisdiction Over Dornell’s Title YII Claims Only The City next avers that Dornell did not properly exhaust her administrative remedies for her Title VII claims and that, to the extent that she did exhaust her FEHA claims, they were untimely. MTD at 7-10. 1. Exhaustion Generally A claimant must exhaust his or her administrative remedies before filing a discrimination or retaliation case in federal court. Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir.2001). To properly exhaust these claims, a claimant must first file the charge with either the EEOC (enforcing Title VII) or the DFEH (enforcing FEHA). A claimant must file a charge with the EEOC within 180 days of the alleged violation, 42 U.S.C. § 2000e-5(e)(1), or else with the DFEH within one year of the alleged unlawful conduct, Cal. Gov’t Code § 12960(d).4 When Title VII and FEHA claims overlap, under the worksharing agreement, the EEOC and DFEH are each the agent of the other for purposes of receiving charges, and thus a filing with one agency is considered to be constructively filed with the other. See, e.g., EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir.2000) (“Constructive filing is made possible by ‘worksharing agreements,’ which designate the EEOC and the state agency each other’s agents for the purpose of receiving charges.”); Paige v. State of Cal., 102 F.3d 1035, 1041 (9th Cir.1996) (“[T]he filing of a charge with one agency is deemed to be a filing with both.”). A claimant cannot file a lawsuit until receiving a right-to-sue notice from the agency that specifically enforces those laws. See Alberti v. City & County of S.F. Sheriff’s Dept., 32 F.Supp.2d 1164, 1174 (N.D.Cal. Nov. 25, 1998) (“An EEOC right-to-sue letter does not satisfy the jurisdictional requirement of exhaustion of remedies as to FEHA claims.”); see also *906Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1726, 35 Cal.Rptr.2d 181 (1994) (“an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on Title VII”). If a claimant receives a right-to-sue notice, he or she has one year from receipt of a DFEH letter to file FEHA claims, Cal. Gov’t Code § 12965(b), but only ninety days from receipt of an EEOC letter to file Title VII claims, 42 U.S.C. § 2000e-5(f)(1). 2. Dornell’s Exhaustion Generally Here, the allegations that form the basis of Dornell’s first four causes of action — gender discrimination and retaliation in violation of state and federal law— all relate to incidents before May 9, 2012, the date on which Dornell took leave from work. See FAC ¶¶30-5 l.5 The FAC cites the following encounters that took place throughout Dornell’s time working for the City, in support of gender discrimination and retaliation claims, respectively: (1) “[The City] singled Dornell out because of her gender and treated her differently than her similar situated male counterparts.” FAC ¶¶ 31, 41; (2) “Dornell engaged in protected activity ... by complaining to Chief Belville about Leong and Euchner’s discriminatory treatment of her. Leong and Euchner then retaliated against Dornell for her complaint by imposing on her a quota to which no male fire inspector was held, and writing her up for trivial alleged violations. When Dornell sought further help from Human Resources and Chief Belville, Leong and Euchner retaliated against her again by ignoring her and further obstructing her ability to work.” Id. ¶¶ 36, 47. Based on these allegations, constructive discharge is not part of Dornell’s first four causes of action, and the last day she was at the SMFD being discriminated against was when she took a leave of absence on May 9, 2012.6 Accordingly, Dornell had 180 days from May 9, 2012, or until November 5, 2012, to file a charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(l). Dornell timely filed her EEOC charge on June 14, 2012, FAC ¶28, and under the worksharing agreement it was deemed to be filed with the DFEH as well, see Dinu-ba Med. Clinic, 222 F.3d at 585. Because Dornell received a right-to-sue notice from the DFEH on June 22, 2012, FAC ¶ 28, she had one year, or until June 22, 2013, to bring her FEHA claims, see Cal. Gov’t Code § 12965(b). Dornell did not bring any FEHA claims until August 30, 2013, when she filed her FAC. See FAC ¶¶ 40-51. Because the EEOC issued Dornell a right-to-sue letter on October 31, 2012, id. ¶34, Dornell had ninety days, or until January 29, 2013, to bring her Title VII claims, see 42 U.S.C. § 2000e-5(f)(l). Her original Complaint alleging Title VII *907claims was timely filed on November 29, 2012. See Compl. 3. DornelFs Title VII Claims Dornell’s first and second causes of action allege gender discrimination and retaliation under Title VII. FAC ¶¶ 30-39. The City challenges these claims, arguing that they are inextricably linked to her alleged constructive termination. MTD at 9-10. First, the City avers that Dornell did not exhaust administrative remedies because she filed her EEOC claim before she resigned. Id. at 9. Second, the City argues that even if this Court construes Dornell’s pre-resignation EEOC charge as providing for a right-to-sue action, it was untimely; i.e., Dornell’s FAC missed the ninety-day window to file a claim. Id. at 10 (citing 42 U.S.C. § 2000e-5(f)(l)). Both of the City’s arguments fail. First, the City contends that Dornell’s Title VII allegations needed to be re-filed with the EEOC after she resigned. Id. at 9. The City points to language in the FAC’s Introduction section alleging that Dornell “was constructively discharged when she resigned.” Id. The City explains that, because the FAC’s first and second causes of action re-allege and incorporate all preceding paragraphs, those causes of action also allege constructive discharge, thus requiring that she file another EEOC charge “as to her constructive discharge claim under Title VII.” Id. But Dornell’s Title VII claims do not incorporate a constructive discharge claim. The allegations supporting her Title VII claims remained the same in both the original Complaint and the FAC. Compare Compl. ¶¶ 29, 34, with FAC ¶¶ 31, 36. Dornell’s Title VII claims allege that she was treated differently than similarly situated male counterparts, given quotas unique to her as a woman, and retaliated against for notifying Belville of her situation. Id. Those events were completed by the time she took a leave of absence from work on May 9, 2012 and filed her EEOC charge on June 14, 2012. Id. ¶ 28. Consequently, Domell’s first and second causes of action were properly exhausted when she filed with the EEOC on June 14, 2012.7 Second, the City argues that even if Domell’s June 14, 2012 pre-resignation EEOC charge is sufficient for the purposes of exhausting her Title VII claims, the lawsuit was nonetheless untimely because her August '30, 2013 FAC was filed more than ninety days after she received her October 31, 2012 EEOC right-to-sue letter. MTD at 10 (citing 42 U.S.C. § 2000e-5(f)(l)). But because the FAC’s Title VII claims repeat the allegations in her original Complaint verbatim, compare Compl. ¶¶ 29, 34, with FAC ¶¶ 31, 36, the claims relate back to her original Complaint for purposes of the statute of limitations. See Hebner v. McGrath, 543 F.3d 1133, 1137-38 (9th Cir.2008) (“amendments made after the statute of limitations has ran may ‘relate back’ to the date of the original pleading when the amended pleading arises ‘out of the conduct, transaction, or occurrence set out ... in the original pleading’ ” (quoting Fed.R.Civ.P. 15(c)(1)). *908Consequently, the filing date of Dornell’s original Complaint is the operative pleading for purposes of the statute of limitations. Dornell received her right-to-sue letter from the EEOC on October 31, 2012, FAC ¶ 34, and had ninety days, or until January 29, 2013, to file her Title VII claims with this Court, see 42 U.S.C. § 2000e-5(f)(l). She filed her original Complaint alleging Title VII claims on November 29, 2012, see Compl., and it was therefore timely. The Court thus has jurisdiction over Dornell’s Title VII claims and DENIES the City’s Motion with respect to the first and second causes of action. 4. Dornell’s FEHA Claims Dornell’s third and fourth causes of action allege gender discrimination and retaliation under FEHA. FAC ¶¶ 40-51. The City contends that Dornell’s FEHA claims are time barred because she did not file those claims with this Court within one year of receiving her DFEH right-to-sue notice on June 22, 2012. MTD at 7. In addition, the City argues that she cannot “restart the clock” by filing a second dupli-cative administrative charge with the DFEH on August 28, 2012. Id. at 2, 8. Dornell responds that her August 28, 2012 DFEH administrative complaint does not simply repeat her previously filed EEOC charge; instead, it “recited that she was forced to resign.” Opp’n at 10 (“her first charge of discrimination with DFEH on June 14, 2012 ... did not claim that she had been forced to resign by the [City’s] continuing course of discriminatory and retaliatory conduct”). Importantly, Dornell’s third and fourth claims alleging FEHA violations do not incorporate constructive discharge. See FAC ¶¶ 41, 47. The allegations supporting Dornell’s gender discrimination and retaliation claims under FEHA mirror those of her Title VII claims verbatim— both only describe discrimination at SMFD. Compare id. ¶¶ 31, 36, with id. ¶¶ 41, 47. Thus, like Dornell’s Title VII claims, her FEHA claims are limited to acts that occurred before she took a leave of absence from work on May 9, 2012. See Part III.C.3, supra. Accordingly, Dornell cannot rely on the filing date of her August 28, 2012 supplemental DFEH charge because that charge adds only a claim of “constructive discharge,” which is not at issue here. See Dornell RJN, Ex. B. Instead, Dornell’s June 14, 2012 EEOC charge, FAC ¶28, which the DFEH constructively received under the worksharing agreement, see Dinuba Med. Clinic, 222 F.3d at 585, is the relevant administrative filing for the purposes of her third and fourth causes of action. The DFEH issued a right-to-sue notice on June 22, 2012, FAC ¶ 28, and Dornell had one year from that date, or until June 22, 2013, to file her FEHA claims, see Cal. Gov’t Code § 12965(d). Because her FAC, filed on August 30, 2013, was the first time she brought FEHA claims, see FAC ¶¶ 40-51, the Court does not have jurisdiction over those claims. The Court therefore DISMISSES Dornell’s third and fourth causes of action. IV. CONCLUSION For the foregoing reasons, the Court: (1) GRANTS the Motion without leave to amend to the extent that the first and third causes of action allege acts of harassment; (2) GRANTS the Motion with respect to the fifth cause of action alleging gender discrimination on the basis of constructive discharge in violation of public policy, with leave to amend; (3) DENIES the Motion with respect to the first and second causes of *909action alleging violations under Title VII; and (4) GRANTS the Motion without leave to amend with respect to the third and fourth causes of action alleging violations under FEHA. IT IS SO ORDERED. . On her own initiative, Dornell took classes and obtained a Fire Prevention Officer and Public Education Officer certificate. Id. ¶ 10. . A typo references Cal. Gov't Code § 19240 in place of Cal. Gov’t Code § 12940. Id. ¶ 40. . The parties request that the Court take judicial notice of the EEOC charge, initial Complaint, parties’ stipulation, DFEH's second right-to-sue letter, and DFEH complaint. See generally City Request for Judicial Notice ("RJN”) (dkt.36); Dornell's RJN (dkt.40). Because these are public records whose accuracy is not in dispute, judicial notice is appropriate. See Fed.R.Evid. 201(b)-(d); see also Anderson v. Holder, 673 F.3d 1089, 1094 n. 1 (9th Cir.2012) (“[A court] may take judicial notice of records and reports of administrative bodies.” (internal quotation marks omitted)). . If the claimant elects to first file a complaint with a state or local agency like the DFEH, the EEOC charge must be filed within the earlier of 300 days after the alleged unlawful employment practice or thirty days after receiving notice that the state or local agency has terminated proceedings. 42 U.S.C. § 2000e-5(e)(l). . Conduct prior to the 300-day mark is actionable if the plaintiff can show that the acts are part of a "continuing violation.” Williams v. Owens-Ill., Inc., 665 F.2d 918, 924 (9th Cir.1982) (applying to Title VII claims); Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 823, 111 Cal.Rptr.2d 87, 29 P.3d 175 (2001) (applying to FEHA claims). Under the continuing violation doctrine, "a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period.” Williams, 665 F.2d at 924. . Unlike Dornell's first four causes of action, her fifth cause of action explicitly alleges "constructive termination” as a component of her discrimination claim. Id. ¶ 54. . Even if Dornell’s Title VII claims did include constructive discharge, a lawsuit “may encompass any discrimination like or reasonably related to the allegations of the EEOC charge.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir.2002) (internal quotation marks omitted). Subject matter jurisdiction extends to allegations "reasonably expected to grow out of the charge of discrimination,” including constructive termination. Id.-, see also Couveau v. Am. Airlines, Inc., 218 F.3d 1078, 1082 (9th Cir.2000) (holding that the plaintiffs wrongful termination was “unquestionably ‘like or reasonably related to’ ” the allegations of discrimination made in her earlier EEOC charge and thus she did not fail to exhaust her administrative remedies).

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MEMORANDUM** Luis Rey Garcia appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 2253 and we affirm. We review a district court’s denial of a petition for a writ of habeas corpus de novo. Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000). Garcia is not eligible for INA § 212(c), 8 U.S.C. § 1182(c), relief because Garcia did not plead guilty. Garcia proceeded to trial and was convicted by a jury. See Amendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002) (holding that § 212(c) relief under St. Cyr is not available to a defendant convicted by a jury) (citing INS v. St. Cyr, 533 U.S. 289, 321-22, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). The fact that Garcia did not receive a plea bargain offer does not alter our application of Amendariz-Montoya. See United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir.1995) (explaining the decision to offer a plea bargain is a matter of prosecutorial discretion). Nor is a motion to reduce a conviction from murder to voluntary manslaughter the functional equivalent of a plea bargain. Because Garcia had already been convicted by a jury for second degree murder, Garcia stood only to gain from his motion. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir.2002) (“A plea bargain is a formal exchange in which each side consensually gives, and gets, something of value.”). Garcia waived his INA § 212(h), 8 U.S.C. § 1182(h), equal protection challenge for purposes of appellate review by *817failing to raise it before the district court. See Arizona v. Components Inc., 66 F.3d 213, 217 (9th Cir.1995). The judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM** Juan Jose Barrera alleges that his guilty plea should be set aside as involuntary due to the district court’s denial of his request for substitution of counsel. Although Barrera waived his right to appeal, “[wjaivers of appeal must stand or fall with the agreement of which they are a part.” *818United States v. Pena, 814 F.3d 1152, 1154 n. 1 (9th Cir.2003). Thus, we have jurisdiction to review the voluntariness of Barrera’s plea.1 Because the parties are familiar with the facts, we discuss them only insofar as necessary to reach our decision. The voluntariness of a guilty plea is reviewed de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). Denial of effective assistance of counsel may suffice to render a guilty plea involuntary. Id. at 865-66. Barrera alleges that there was a complete breakdown in his relationship with his attorney, and so the district court abused its discretion in refusing to allow substitution of counsel. See United States v. Corona-Garcia, 210 F.3d 973, 976 (9th Cir.2000). We consider three factors in evaluating the propriety of the district court’s refusal to substitute counsel: 1) the extent of the conflict; 2) the adequacy of the inquiry; and 3) the timeliness of the motion. Id. Here, the district court’s inquiry was adequate. Additionally, the relationship between Barrera and his attorney did not evince the severity of conflict which has been the hallmark of our jurisprudence regarding substitution of counsel. See United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir.2001). Although Barrera established that he was displeased with his attorney’s trial strategy and did not fully trust her, he and his attorney were able to communicate. Moreover, because his motion to substitute counsel was untimely, the district court had “broad latitude to deny a motion for substitution of counsel on the eve of trial when the request would require a continuance.” Id. at 1003. Additionally, the transcript of the change of plea hearing demonstrates that the district court specifically inquired into Barrera’s willingness to plead guilty in light of his earlier concerns regarding the adequacy of his representation. The transcript also shows that Barrera consulted with his attorney at a number of points during the change of plea hearing, as well as asking questions of the judge at one point. Because the district court did not abuse its discretion in denying the motion for substitution of counsel, and the plea colloquy itself supports the district court’s determination that the plea was voluntary and intelligent, the judgment of the district court is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . It is axiomatic that federal courts always have jurisdiction to determine their jurisdiction. United States v. Reyes-Platero, 224 F.3d 1112, 1114 (9th Cir.2000). In order to make that determination here, it is necessary to address the merits. The Supreme Court has held in a factually similar situation that because it was necessary to address the merits in order to determine whether jurisdiction was proper, jurisdiction was present and dismissal unnecessary. United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 2454, 153 L.Ed.2d 586 (2002).

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ORDER Judges Reinhardt and Hawkins have voted to grant the petition for rehearing and to deny the petition for rehearing en banc. Judge Rawlinson votes to deny the petition for rehearing and for rehearing en banc. The memorandum disposition filed on October 12, 2001, in this case is WITHDRAWN and superceded by a new disposition filed by the panel concurrently herewith.

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MEMORANDUM** Robert Randall Boswell appeals from his judgment and sentence for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846. Boswell claims he was denied his Sixth Amendment right to counsel when the government based its refusal to move for a downward departure under U.S.S.G. § 5K1.1 on statements Boswell made under oath when he was effectively unrepresented by counsel. We have jurisdiction under 28 U.S.C. § 1291. Because Boswell’s claim is entirely independent of his factual guilt, he did not waive it when he subsequently entered an unconditional guilty plea. See United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006-07 (9th Cir.2000). We reject Boswell’s claim. This is not a case where counsel took an “adversary and antagonistic” stance and thereby rendered ineffective representation. See United States v. Adelzo-Gonzalez, 268 F.3d 772, 779-80 (9th Cir.2001); United States v. Wadsworth, 830 F.2d 1500, 1510-11 (9th Cir.1987). Rather, Boswell was effectively represented when the court questioned him under oath on January 22, 2002. His attorney was not relieved of his duties as counsel until after Boswell had made the statements in issue. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM*** Petitioner contends that the BIA abused its discretion by not exercising its sua *820sponte authority under 8 C.F.R. § 3.2(a) to reopen the deportation proceeding. Because we do not have jurisdiction to review the BIA’s refusal to reopen sua sponte, see Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Abassi v. INS, 305 F.3d 1028, 1033 (9th Cir.2002), the petition is DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the *820courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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07-25-2022

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MEMORANDUM** California state prisoner Mitchell Moore appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we reverse and remand in part and affirm in part. Moore contends that the district court erred when it dismissed his first petition as completely unexhausted. Moore is correct, because he raised a federal due process claim concerning “bad acts” evidence on direct appeal and then in his petition for review by the California Supreme Court. He argued that not only was the evidence improperly admitted under state law, but it also “was of such quality as to prevent a fair trial,” and he cited Jammal v. Van de Kamp, 926 F.2d 918, 920 (1991) (stating that the improper admission of evidence violates due process when it renders the trial fundamentally unfair). Thus, Moore’s first petition was mixed, and he should have been given the opportunity to abandon his unexhausted claims and proceed on the exhausted one. See James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000). Because Moore was not given this opportunity, his second petition relates back to the date the first petition was filed, in so far as the second petition raises claims that were raised in his first petition. See Ford v. Hubbard, 305 F.3d 875, 887-89 (9th Cir.2002).1 Moore’s second petition is therefore timely as to four claims: (1) appellate counsel’s ineffectiveness; (2) Sixth Amendment claim regarding reasonable doubt standard; (3) improper delegation of sentencing authority; and (4) “bad acts” evidence. Moore’s second petition also raises four new claims. Moore contends that the petition is timely as to these claims because of equitable tolling. However, he is not entitled to equitable tolling because he has not alleged extraordinary circumstances beyond his control that made it impossible for him to file a petition on time. See Miranda v. Castro, 292 F.3d 1063, 1066-67 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002) (stating that ordinary negligence and legal mistakes do not give rise to equitable tolling). For these reasons, we reverse the district court’s dismissal as to the four claims raised in both the first and second petitions and remand for further proceedings on these claims. We affirm the district court’s dismissal as to the four claims raised for the first time in the second petition. *822REVERSED AND REMANDED in part; AFFIRMED in part. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. . This rule extends to claims that were not exhausted in the first petition, because the court could have stayed an amended petition raising only exhausted claims and then allowed relation back for the other claims after they were exhausted. Ford v. Hubbard, 305 F.3d 875, 889 (9th Cir.2002).

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MEMORANDUM** Marciano Pangilinan Dimacali, a native and citizen of the Philippines, petitions this court to reverse the decision of the Board of Immigration Appeals (“BIA”) that he is ineligible for asylum, 8 U.S.C. § 1101(a)(42)(A), and for withholding of deportation. We must uphold the BIA’s decision if it is supported by substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 479, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The evidence does not compel the conclusion that Dimacali suffered persecution or has a well founded fear of persecution because after his abduction, he was able to live safely in Manila for a year and his wife and children were able to continue residing safely in Baguio City. Cf. Prasad v. INS, 47 F.3d 336, 339-40 (1995). Similarly, the BIA reasonably determined that Dimacali had not established an entitlement to withholding of deportation pursuant to 8 U.S.C. § 1231(b)(3)(A). See Navas v. INS, 217 F.3d 646, 655 (9th Cir.2000). PETITION DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Dora P. Pettiford appeals the jury verdict in favor of her former employer, the North Carolina Department of Health and Human Resources, in her civil action in which she alleged retaliatory treatment based upon her complaints of racial discrimination. We have reviewed the record and find no reversible error. In reviewing a jury verdict, we do not weigh evidence or review witness credibility. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989). If, when taken in the fight most favorable to the plaintiff, there is substantial evidence to support the verdict, it must be sustained. Vodrey v. Golden, 864 F.2d 28, 30 n. 4 (4th Cir.1988). Because we conclude substantial evidence supported the jury verdict, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS THELTON E. HENDERSON, JUDGE, UNITED STATES DISTRICT COURT Defendants’ motion to dismiss came before the Court on November 4, 2018. Having considered the parties’ arguments and the papers submitted, the Court now DENIES Defendants’ motion for the reasons set forth below. BACKGROUND Defendant Dignity Health (“Dignity”)1 is a non-profit healthcare provider with facilities in sixteen states. Compl. ¶ 1. From 1986 to 2012, Plaintiff Starla Rollins (“Rollins”) was employed as a billing coordinator at a Dignity-operated hospital. Id. ¶ 18. Based on her employment, Rollins will be eligible for pension benefits from Dignity’s benefits plan (the “Plan”) when she reaches retirement age. Id. Rollins alleges that Dignity’s Plan violates the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. Dignity contends that its Plan need not comply with ERISA because it is a “church plan,” which the statute explicitly exempts from its requirements. Rollins maintains that the Plan does not qualify as a church plan as defined by ERISA and in the alternative, if the Plan is exempt, such an exemption violates the Establishment Clause of the First Amendment and is therefore void. Id. ¶¶ 162-164. On behalf of herself and others similarly situated, Rollins seeks declaratory relief *911that Dignity’s Plan is not a church plan exempt from ERISA, as well as injunctive relief requiring Dignity to conform the Plan to ERISA’s requirements. She also requests that Dignity make Plan participants whole for any losses they suffered as a result of its ERISA non-compliance and that Dignity pay any other statutory penalties and fees. Dignity moves to dismiss, contending that the Plan is a church plan, exempt from ERISA as a matter of law, and therefore, that Rollins’s allegations regarding ERISA violations fail to state a claim for relief. LEGAL STANDARD Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a complaint’s allegations fail “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss, a court must “accept all material allegations of fact as true and construe the complaint in a light most favorable to the nonmoving party.” Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir.2007). To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). DISCUSSION Enacted in 1974, ERISA was designed to ensure that employees actually receive the benefits they are promised by establishing, among other requirements, minimum funding standards and disclosure obligations for employee benefits plans. Pub. L. No. 94-406, 88 Stat. 829 (1974), codified at 29 U.S.C. §§ 1001 et seq. ERISA explicitly exempted “church plans” from its requirements and explained “the term ‘church plan’ means [ ] a plan established and maintained for its employees by a church or by a convention or association of churches.” 29 U.S.C. § 1002(33)(A) (1976). The statute permitted a church plan to also cover employees of church agencies, but the permission was to sunset in 1982. Id. In 1980, ERISA was amended to eliminate the 1982 deadline and to include other clarifications. The relevant statutory section, 29 U.S.C. § 1002(33), now reads as follows: (A) The term “church plan” means a plan established and maintained (to the extent required in clause (ii) of subpara-graph (B)) for its employees (or then-beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of title 26. (B) The term “church plan” does not include a plan— (i) which is established and maintained primarily for the benefit of employees (or their beneficiaries) of such church or convention or association of churches who are employed in connection with one or more unrelated trades or businesses (within the meaning of section 513 of title 26), or (ii) if less than substantially all of the individuals included in the plan are individuals described in subparagraph (A) or in clause (ii) of subparagraph (C) (or their beneficiaries). (C) For purposes of this paragraph (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or other*912■wise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches. (ii) The term employee of a church or a convention or association of churches includes— (I) a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry, regardless of the source of his compensation; (II) an employee of an organization, whether a civil law corporation or otherwise, which is exempt from tax under section 501 of Title 26 and which is controlled by or associated with a church or a convention or association of churches; ... 29 U.S.C. § 1002(33). According to Rollins, despite the language in section C(i), which permits church-associated organizations to maintain church plans, section A still demands that only a church may establish a church plan. Although Rollins also disputes whether Dignity is a church-associated organization under section C(i), the Court first addresses, and finds dispositive, her argument that Dignity is not a church, and as such cannot establish a church plan, and therefore that Dignity’s Plan is not a “church plan” under the statute. Dignity does not contend that it is a church or that its Plan was started by a church. Rather, relying primarily on section C, it argues that the ERISA statute allows a plan to qualify as a church plan regardless of what entity established the plan, so long as the plan is maintained by a tax-exempt non-profit entity “controlled by or associated with a church or a convention or association of churches.” 29 U.S.C. § 1002(33)(C)(i). Because it is a tax-exempt entity associated with the Roman Catholic Church, and its Plan is maintained by a subcommittee associated with the Roman Catholic Church, Dignity argues that, as a matter of law, its Plan qualifies as a church plan.2 Thus, the primary question before the Court is whether the ERISA statute requires a church plan to have been established by a church, or whether the statute merely requires that a church plan be maintained by a tax-exempt organization controlled by or associated with a church. At the outset, the Court notes that although Dignity argues that “three decades of agency interpretations” — specifically a series of Internal Revenue Service (“IRS”) private letter rulings (“PLRs”) — support its position that to *913qualify as a church plan, a plan need only be maintained by a tax-exempt entity associated with a church, the Court declines to defer to the IRS’s interpretation of the ERISA statute here. The IRS’s private letter rulings apply only to the persons or entities who request them and are not entitled to judicial deference.3 The Court instead conducts its own independent analysis of the statute. 26 C.F.R. § 301.6110-7; 26 U.S.C. § 6110 (“a written determination may not be used or cited as precedent”); see also Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 978 (7th Cir.1998) (“Neither the courts nor the IRS may rely on letter rulings as precedent.”). When interpreting a federal statute, a court’s goal is to “aseertain[ ] the intent of Congress” and “giv[e] effect to its legislative will.” In re Ariz. Appetito’s Stores, Inc., 893 F.2d 216, 219 (9th Cir.1990). “The preeminent canon of statutory interpretation requires us to presume that the legislature says in a statute what it means and means in a statute what it says there.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal quotation marks omitted). In construing the provisions of a statute, a court should thus “first look to the language of the statute to determine whether it has a plain meaning.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009). To the extent a statute is not “plain,” a court may look to the traditional canons of statutory interpretation and to the statute’s legislative history. Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830-31 (9th Cir.1996). The Court’s inquiry into whether a plan qualifies as a church plan begins with the text of section A, which, again, states: The term “church plan” means a plan established and maintained (to the extent required in clause (ii) of subpara-graph (B)) for its employees (or their beneficiaries) by a church or by a convention or association of churches which is exempt from tax under section 501 of Title 26. 29 U.S.C. § 1002(33)(A) (emphasis added). A straightforward reading of this section is that a church plan “means,” and therefore by definition, must be “a plan established ... by a church or convention or association of churches.” Complicating the inquiry, however, is section C, which states: (i) A plan established and maintained for its employees (or their beneficiaries) by a church or by a convention or association of churches includes a plan maintained by an organization, whether a civil law corporation or otherwise, the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or *914both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches. (ii) The term employee of a church or a convention or association of churches includes— (I) a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry, regardless of the source of his compensation; (II) an employee of an organization, whether a civil law corporation or otherwise, which is exempt from tax under section 501 of Title 26 and which is controlled by or associated with a church or a convention or association of churches; ... 29 U.S.C. § 1002(33)(C) (emphasis added). Dignity contends that section C(i) includes within the category of plans “established and maintained ... by a church” — “a plan maintained by a [church-associated] organization;” therefore, any plan that is maintained by a church-associated organization is a church plan, regardless of whether the plan was established by a church or convention or association of churches. Mot. at 17-18. Although Dignity’s proposed reading of the statute is not unreasonable on its face, it violates long-held principles of statutory construction and therefore cannot be the meaning of the statute. To begin, Dignity’s reading violates a “cardinal principle of statutory construction ... to give effect, if possible, to every clause and word of a statute rather than to emasculate an entire section.” Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks omitted). If, as Dignity argues, all that is required for a plan to qualify as a church plan is that it meet section C’s requirement that it be maintained by a church-associated organization, then there would be no purpose for section A, which defines a church plan as one established and maintained by a church. In 1980, Congress amended the church plan exemption portion of the statute to add the language in section C relied upon by Dignity. At the same time, Congress chose to retain the language in section A, that the “[t]he term ‘church plan’ means a plan established and maintained by a church.” To completely ignore the language of section A — language that Congress actively retained — violates the principle to give effect to every clause and word and the related principle “not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” In re HP Inkjet Printer Litig., 716 F.3d 1173, 1184 (9th Cir.2013). Dignity’s reading not only renders section A meaningless, but also disregards the limiting language of section C(i), that to maintain a church plan, an organization must not only be associated with the church, but it must have as its “principal purpose or function ... the administration or funding of a [benefits] plan or program ... for the employees of a church.” Dignity is a healthcare organization; its mission is the provision of healthcare, not the administration of a benefits plan. While its Retirement Plans Sub-Committee’s purpose is plan administration, the statute does not say that the organization may have a subcommittee who deals with plan administration. Rather, the statute dictates that organization itself must have benefits plan administration as its “principal purpose,” which Dignity plainly does not. Furthermore, Dignity’s suggested interpretation would reflect a perfect example of an exception swallowing the rule. While the amended section C(i) does permit church plans to include plans main*915tained by some church-associated organizations, for such a specific exception to govern what a church plan is, would completely vitiate the original rule embodied in section A, defining a church plan as a plan established and maintained by a church. The Court cannot agree with the notion that Congress could have intended the narrow permission in section C(i) to — by implication — entirely consume the rule it clearly stated in section A. The canon expressio unius est ex-clusio alterius also militates against Dignity’s interpretation of the statute. The canon instructs that “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (citation omitted). Based on this canon, we must presume that Congress acted intentionally in using the words “establish and maintain” in section A as something only a church can do, as opposed to the use of only the word “maintain” in section C(i) to refer to the capabilities of church-associated organizations. To assert that any church-associated organization can establish its own church plan fails to appreciate the distinction drawn by Congress through its purposeful word choice. Moreover, the use of the word “maintain by an organization” in section C(i) mirrors the word “maintain” in the preceding clause, “a plan established and maintained by a church.” This repetition of the word “maintain” without the word “establish” suggests that only the category of “who may maintain a church plan” is being expanded upon in section C(i), not the category of “who may establish a church plan.” At oral argument, Dignity also relied on section C(ii), which allows employees of church-associated organizations to be covered by a church plan, to support its position. Dignity argued that because it is associated with a church and its employees can be covered by a church plan, that its Plan is a church plan. That an established church plan may include employees of a church-associated organization, however, does not mean that an associated organization may establish a church plan. Section C(ii) merely explains which employees a church plan may cover — once a valid church plan is established. It does nothing more. The Court holds that notwithstanding section C, which permits a valid church plan to be maintained by some church-affiliated organizations, section A still requires that a church establish a church plan. Because the statute states that a church plan may only be established “by a church or by a convention or association of churches,” only a church or a convention or association of churches may establish a church plan. 29 U.S.C. 1002(33)(A). Dignity’s effort to expand the scope of the church plan exemption to any organization maintained by a church-associated organization stretches the statutory text beyond its logical ends. The Court acknowledges that the position it takes here runs contrary to several cases outside this circuit that have considered the church plan exemption and have held that it applies to plans established by church-affiliated entities. Although those cases are not binding authority, the Court has nevertheless examined each contrary case and is not convinced by the reasoning the cases employed. Initially, the Court notes that the contrary cases themselves differ in their interpretations of the statutory text. Several cases to have explored the issue appear to have read section C(i)’s language on who *916may maintain a church plan to abrogate the limitations clearly set out in section A on who can establish a church plan. See, e.g., Thorkelson v. Publ’g House of Evangelical Lutheran Church in Am., 764 F.Supp.2d 1119, 1126-27 (D.Minn.2011); Lown v. Cont’l Cas. Co., 238 F.3d 543, 547 (4th Cir.2001). Yet others overlooked the express limitation on section C(i) that an organization maintaining a church plan must have as its “principal purpose or function ... the administration or funding of a [benefits plan]” and cannot simply be a church-affiliated healthcare organization, or publishing house. See, e.g, Chronister v. Baptist Health, 442 F.3d 648, 652 (8th Cir.2006); Lown, 238 F.3d at 547. And still others read into the statute’s broad definition of employees who may be covered by a church plan, a completely different idea that church-affiliated organizations may start their own church plans. See e.g., Rinehart v. Life Ins. Co. of N. Am., No. C08-5486 RBL, 2009 WL 995715, at *3 (W.D.Wash. Apr. 14, 2009). As explained in detail above, the Court is not persuaded by. these flawed approaches. Rather, it adheres to the principle that Congress “says in a statute what it means and means in a statute what it says there.” BedRoc Ltd., LLC, 541 U.S. at 183, 124 S.Ct. 1587 (internal quotation marks omitted). If Congress intended to alter the types of entities that can establish a church plan, such amendment would have been made to section A, which again, clearly states that a church plan is one “established and maintained ... by a church or by a convention of association of churches.” The Court is not compelled by the legal gymnastics required to infer from section C’s grant of permission to church associations to maintain a church plan, or its broad view of which employees may be covered by a church plan — that a church plan may be established by any entity other than a church or a convention or association of churches as set forth in section A. Although the text is conclusive, the Court notes that legislative history also strongly supports its reading. The history explains that the purpose behind section C was only to permit churches to delegate the administration of their benefits plans to specialized church pension boards without losing their church plan status; it was not to broaden the scope of organizations who could start a church plan. Prior to the amendment, because the statute read that a church plan was one “maintained by a church or by a convention or association of churches,” churches whose plans were managed by pension boards were concerned about their status. To ensure they could maintain the exemption, leaders of several large church organizations wrote to and testified before Congress about their concerns.4 In response to the churches’ concerns, Sen. Herman E. Talmadge of Georgia introduced legislation as far back as 1978, with language substantially identical to the language currently in section C(i), to ensure that “a plan funded or administered through a pension board ... [would] be *917considered a church plan” so long as the pension board’s “principal purpose or function” was the administration of the church plan, and the pension board was “controlled by or associated with a church.” 124 Cong. Rec. S8089 (daily ed. June 7, 1978) (statement of Sen. Herman Tal-madge). In 1980, H.R. 8904 and S. 1076 were introduced in their respective houses and both sought to make broad changes to ERISA. Sen. Talmadge’s church plan concerns were reflected in S. 1090 that year, and eventually came to be a part of S. 1076. H.R. 3904 did not initially include any changes to the church plan exemption, but after H.R. 3904 and S. 1076 both passed their respective houses, the Senate proposed, and the House accepted amendments to H.R. 3904, including Sen. Tal-madge’s proposed changes to the church plan exemption. Request To Concur In Senate Amendment With Amendments To H.R. 3904, Multi-Employer Pension Plan Amendments Act Of 1980, August 1, 1980. When seeking to add the language about the church plan exemption reflected in section C into S. 1076, Sen. Talmadge explained to the Senate Finance Committee that the purpose of his proposal was to expand the church plan definition to include “church plans which rather than being maintained directly by a church are instead maintained by a pension board maintained by a church.” Senate Committee on Finance, Executive Session Minutes, June 12, 1980, at 40. In turn, a Press Release documenting the Senate Finance Committee’s favorable report on the legislation that same day stated that the Committee had “agreed that the current definition of church plan would be continued .... The definition would be clarified to include plans maintained by a pension board maintained by a church.” Press Release, United States Senate Committee on Finance (June 12,1980). Likewise, once the provision was incorporated into H.R. 3904, the Senate Labor and Human Resources Committee noted on August 15, 1980, that pursuant to the amended bill, the definition of a church plan “would be continued” and only “clarified to include plans maintained by a pension board maintained by a church.” Senate Labor and Human Resources Committee Report on H.R. 3904, August 15, 1980. The same position was echoed in the House by Representative Ullman in his comments on August 25, 1980, just weeks before the bill’s passage. 126 Cong. Rec. H23049 (daily ed. Aug. 25, 1980). The legislative history thus demonstrates that section C(i) was only intended to permit church pension boards to administer church plans; it was never contemplated to be so broad as to permit any church-affiliated agency to start its own plan and qualify for ERISA exemption as a church plan. In sum, both the text and the history confirm that a church plan must still be established by a church. Because Dignity is not a church or an association of churches, and does not argue that it is, the Court concludes that Dignity does not have the statutory authority to establish its own church plan, and is not exempt from ERISA as a matter of law. Defendants’ motion to dismiss on this ground is thereby DENIED. Consequently, the Court refrains from ruling on Rollins’s constitutional claim which is premised on a finding that Dignity’s plan is exempt from ERISA. For the same reason, the Court also declines to consider Dignity’s argument that its exemption from ERISA eliminates the Court’s subject matter jurisdiction over this suit. In its reply brief, Dignity also argued that the Court lacks subject matter jurisdiction “because courts may not entangle themselves in a church’s affairs.” *918Defs.’ Reply at 11. As Dignity failed to raise the argument prior to its reply brief, the Court declines to consider this argument. See United States ex rel. Giles v. Sardie, 191 F.Supp.2d 1117, 1127 (C.D.Cal. 2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”); see also Nevada v. Watkins, 914 F.2d 1545, 1560 (9th Cir.1990) (“[Parties] cannot raise a new issue for the first time in their reply briefs.” (citation omitted)). CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is DENIED. IT IS SO ORDERED. . The Defendants' jointly moved to dismiss. Defendants in this case are Dignity Health, Herbert J. Vallier, a former Dignity Health official, and members of Dignity Health’s Retirement Plans Sub-Committee. For convenience, the Court refers to the Defendants' collectively as '‘Dignity.” . To support Dignity's position that both Dignity and its Plan subcommittee are "associated with” the Roman Catholic Church, Dignity submits volumes of documents as an appendix to its motion and as exhibits to two declarations submitted in connection with its papers. “When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond. A court may, however, consider certain materials — [including] matters of judicial notice — without converting the motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003) (citation omitted). However, a court may take judicial notice of documents only for their existence, not the truth of the contents therein. In re Am. Apparel, Inc. S’holder Litig., 855 F.Supp.2d 1043, 1064 (C.D.Cal.2012). As Dignity cites to these documents for the truth of the matters asserted within, the Court finds the documents inappropriate for judicial notice and declines to review them here on a motion to dismiss. . Even if entitled to any deference, at best informal, non-precedential decisions, such as the IRS’s PLRs, are entitled to only Skidmore deference, see Barrios v. Holder, 581 F.3d 849, 859 (9th Cir.2009), such that the weight the Court must give to the letters depends on “the thoroughness evident in [their] consideration, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The PLRs that Dignity relies on recite Dignity’s predecessor organization's structure and repeat portions of the statute. I.R.S. P.L.R. 9409042 (Dec. 8, 1993), 9525061 (Mar. 28, 1995), I.R.S. P.L.R. 9717039 (Jan. 31, 1997), I.R.S. P.L.R. 200023057 (Mar. 20, 2000). The letters do not analyze the statute closely or evaluate how its language applies to Dignity. Because the IRS's letters are conclusory, even under the Skidmore framework, they are not entitled to deference. See Shin v. Holder, 607 F.3d 1213, 1219 (9th Cir.2010) (denying deference to Board of Immigration Appeals where its ruling was conclusory and ”lack[ed] any meaningful analysis”). . See, e.g., Letter from Gary S. Nash, Secretary, Church Alliance for Clarification of ERISA, to Hon. Harrison A Williams, Jr., Chairman, Senate Committee on Human Resources (August 11, 1978); Hearing on the ERISA Improvements Act of 1978 Before the S. Comm, on Labor and Human Resources (1978) (statements of Dr. Charles C. Coswert, Executive Secretary, Board of Annuities and Relief of the Presbyterian Church of the United States and Gary S. Nash, General Counsel, Annuity Board of the Southern Baptist Convention, Church Alliance for Clarification of ERISA, available as a part of the Appendix to ERISA Improvements. Act of 1978, Hearings before S. Committee on Labor and Human Resources, 96th Cong. 1317-1394 (1978).

01-04-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/7224363/

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SUSAN ILLSTON, United States District Judge Cross-motions for summary judgment by plaintiff/counterdefendant Ariosa Diagnostics, Inc. and defendant/counterclaim-ant Sequenom, Inc. came on for oral argument on October 11, 2013. Having considered the parties’ motion papers, pleadings and arguments, and for good cause shown, the Court GRANTS Ariosa’s motion for summary judgment and DENIES Sequenom’s motion for summary judgment. BACKGROUND In this declaratory judgment action, plaintiff Ariosa, formerly known as Aria Diagnostics, Inc., seeks a declaration that its non-invasive prenatal test, the Harmony test, using cell-free fetal DNA circulating in the blood of a pregnant woman does *941not directly infringe or contribute to the infringement of U.S. Patent No. 6,258,540 (“the ’540 patent”), licensed by defendant Sequenom. 1. The ’540 Patent Sequenom is the exclusive licensee of the ’540 patent, which Sequenom licensed from Isis Innovation Limited (“Isis”). See Docket No. 37, Tatman Decl. ¶¶ 3^1 The ’540 patent is entitled “Non-invasive Prenatal Diagnosis,” and was issued to inventors Yuk-Ming Dennis Lo and James Stephen Wainscoat on July 10, 2001 and assigned to Isis. U.S. Patent No. 6,258,540 The ’540 patent relates to prenatal detection methods performed on a maternal serum or plasma sample from a pregnant female, which methods comprise detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample. Id. at 2:1-4. “This invention enables non-invasive prenatal diagnosis, including for example sex determination, blood typing and other genotyping, and detection of pre-eclampsia in the mother.” Id. (Abstract). According to the patent, conventional pre-natal diagnostic DNA tests such as amniocentesis and chorionic villus sampling involved invasive procedures with risks to the mother and the pregnancy. ’540 Patent at 1:12-17; see also Docket No. 35, Evans Decl. ¶¶ 34-37. Therefore, non-invasive techniques began to be developed that used maternal blood or serum. ’540 Patent at 1:18-20. Prior noninvasive DNA research had focused on detecting fetal cells in a mother’s bloodstream, because the presence of cell-free fetal DNA was not known. Id. at 1:28-36; see also Docket No. 35, Evans Decl. ¶ 21. However, these techniques were time-consuming or required expensive equipment. ’540 Patent at 1:36-37; see also Docket No. 35, Evans Decl. ¶¶ 39-41 (“Ultimately, neither approach, using fetal cells or the other noninvasive screening measurements described above, has proved sufficiently successful or reliable to replace invasive testing.”). The ’540 patent is based on the discovery in 1996-1997 by Drs. Lo and Wains-coat that cell-free fetal DNA (sometimes referred to as “cffDNA”) is detectable in maternal serum or plasma samples.1 ’540 Patent at 1:50-51; see also Docket No. 35, Evans Decl. ¶ 45. This discovery was important because according to the patent, “[t]he detection rate is much higher using serum or plasma than using nucleated blood cell DNA extracted from a comparable volume of whole blood, suggesting there is enrichment of foetal DNA in maternal plasma and serum.” ’540 Patent at 1:55-58. The three independent claims of the ’540 patent are as follows: 1. A method for detecting a paternally inherited nucleic acid of fetal origin performed on a maternal serum or plasma sample from a pregnant female, which method comprises amplifying a paternally inherited nucleic acid from the serum or plasma sample and detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample. *94224. A method for detecting a paternally inherited nucleic acid on a maternal blood sample, which method comprises: removing all or substantially all nucleated and anueleated cell populations from the blood sample, amplifying a paternally inherited nucleic acid from the remaining fluid and subjecting the amplified nucleic acid to a test for the Paternally [sic] inherited fetal nucleic acid. 25. A method for performing a prenatal diagnosis on a maternal blood sample, which method comprises obtaining a non-cellular fraction of the blood sample amplifying a paternally inherited nucleic acid from the non-cellular fraction and performing nucleic acid analysis on the amplified nucleic acid to detect paternally inherited fetal nucleic acid. ’540 Patent at 23:60-67; 26:20-36. 2. Procedural Background Ariosa filed this declaratory relief action against Sequenom on December 19, 2011, seeking a declaration that its Harmony Test does not infringe any claims of the ’540 patent.2 Docket No. 1, Compl. On March 8, 2012, Sequenom filed an answer against Ariosa and a counterclaim for infringement of the ’540 patent. Docket No. 33. On March 8, 2012, Sequenom also filed a motion for a preliminary injunction, seeking to enjoin Ariosa from making, using, selling, offering for sale, or importing into the United States the Harmony Prenatal Test. Docket No. 34. On July 5, 2012, the Court denied Se-quenom’s motion for a preliminary injunction. Docket No. 121. In the order, the Court found that Ariosa had raised a substantial question with regard to the validity of the ’540 patent based on Ariosa’s argument that the ’540 patent does not cover patent eligible subject matter. Id. at 16-19. Sequenom appealed the Court’s denial of its motion for a preliminary injunction. Docket No. 123. On August 9, 2013, the Federal Circuit vacated the Court’s order denying the preliminary injunction and remanded the case for further proceedings. Aria Diagnostics, Inc. v. Sequenom, Inc., 726 F.3d 1296, 2013 U.S.App. LEXIS 16506 (Fed.Cir.2013). In vacating the order, the Federal Circuit rejected this Court’s initial claim construction, but offered no opinion as to whether there is or is not a substantial question regarding the subject matter eligibility of the asserted claims of the ’540 patent. Id. at *16-17. Rather, the Federal Circuit remanded with directions that this Court examine subject matter eligibility of the asserted claims in the first instance in light of the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., — U.S.-, 133 S.Ct. 2107, 186 L.Ed.2d 124 (2013) and the Federal Circuit’s claim construction holdings. Id. at *16. By the present cross-motions for summary judgment, the parties move for summary adjudication of whether claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of ’540 patent are drawn to patent-eligible subject matter. LEGAL STANDARD 1. Summary Judgment Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter *943of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the Court that there is an absence of evidence to support the non-moving party’s case. Id. at 325, 106 S.Ct. 2548. Once the moving party has met its burden, the burden shifts to the nonmoving party to “set forth, by affidavit or as otherwise provided in Rule 56, ‘specific facts showing that there is a genuine issue for trial.’ ” T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548). To carry this burden, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “The mere existence of a scintilla of evidence ... will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255, 106 S.Ct. 2505. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment.” Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979). The evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)(2). 2. Subject Matter Eligibility Under § 101 Under § 101 of the Patent Act, “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. “In choosing such expansive terms ... modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980). However, the Supreme Court has long held that there is an important exception to § 101: “ ‘[L]aws of nature, natural phenomena, and abstract ideas’ are not patentable.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., — U.S. -, 132 S.Ct. 1289, 1293, 182 L.Ed.2d 321 (2012); see also id. (“[T]he [Supreme] Court has written that a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are manifestations of ... nature, free to all men and reserved exclusively to none.” (internal quotation marks omitted)). The Federal Circuit has explained that these exceptions should be applied narrowly. Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1342 (Fed.Cir.2013); see also Prometheus, 132 S.Ct. at 1293 (“The Court has recognized ... that *944too broad an interpretation of this exclusionary principle could eviscerate patent law. For all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.”). Patent eligibility under § 101 is an issue of law that may involve underlying factual issues. Accenture Global Servs. v. Guidewire Software, Inc., 728 F.3d 1336, at 1340-41, 2013 U.S.App. LEXIS 18446, at *10 (Fed.Cir.2013). Moreover, under 35 U.S.C. § 282, patents are presumed to be valid. Therefore, an alleged infringer must prove invalidity by clear and convincing evidence. See Microsoft Corp. v. i4i L.P., — U.S. -, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011); see also Ultramercial, 722 F.3d at 1339 (explaining that an accused infringer must prove ineligible subject matter under § 101 by clear and convincing evidence). In this connection, it is the factual evidence itself which must be clear and convincing. See Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed.Cir.1988) (clear and convincing evidence is evidence “which produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions are highly probable” (alteration in original) (citation and internal quotation marks omitted)). 3. Supreme Court Case Law on Subject Matter Eligibility The Supreme Court has issued several recent decisions articulating standards for the subject matter eligibility, building on cases decided over the last half-century. Several of these cases are briefly reviewed below. A. Funk Brothers The patent in Funk Brothers claimed an inoculant for leguminous plants comprising a plurality of selected mutually non-inhibi-tive strains of different species of bacteria of the genus Rhizobium, where the strains are unaffected by each other in respect to their ability to fix nitrogen in the leguminous plant for which they are specific.3 Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 129 n. 3, 68 S.Ct. 440, 92 L.Ed. 588 (1948). The Supreme Court noted that prior to the invention, the general practice was to manufacture and sell inoculants containing only one of the six species of the Rhizobium bacteria, meaning that the inoculant could only be used successfully in plants that belonged to that specific species’ .inoculation group. Id. at 129, 68 S.Ct. 440. The inventors of the patent discovered that there are strains of each species of bacteria which do not exert a mutually inhibitive effect on each other, and, therefore, could be isolated and used in mixed cultures. Id. at 130, 68 S.Ct. 440. “Thus [the invention] provided a mixed culture of Rhizobia capable of inoculating the seeds of plants belonging to several cross-inoculation groups.” Id. The Supreme Court held that the claims were not patentable because “patents cannot issue for the discovery of the phenomena of nature.” Id. at 130, 68 S.Ct. 440. The Supreme Court explained that discovery of the fact that certain strains of each species of these bacteria can be mixed without harmful effect to the properties of either is no more than the discovery of *945some of the handiwork of nature and hence is not patentable. Id. at 131, 68 S.Ct. 440. “If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” Id. at 130, 68 S.Ct. 440. The Court recognized that the aggregation of select strains of the species of bacteria into one product is an application of a newly-discovered natural principle, but explained that the application of that principle “is hardly more than an advance in the packaging of the inoculants.” Id. at 131, 68 S.Ct. 440; see also id. at 132, 68 S.Ct. 440 (“[0]nce nature’s secret of the non-inhibi-tive quality of certain strains of the species of Rhizobium was discovered, the state of the art made the production of a mixed inoculant a simple step.”). B. Gottschalk v. Benson The patent application in Benson “claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals.” Gottschalk v. Benson, 409 U.S. 63, 64, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). The Supreme Court noted that “[t]he claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use,” and “[t]hey purported to cover any use of the claimed method in a general-purpose digital computer of any type.” Id.’, see also id. at 68, 93 S.Ct. 253 (“Here the ‘process’ claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion”). The Supreme Court held that the claims were ineligible subject matter because the formula for converting BCD numerals to pure binary numerals was an abstract idea. See id. at 71, 93 S.Ct. 253. The Court explained: “The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.” Id. at 71-72, 93 S.Ct. 253. C. Parker v. Flook The patent application in Flook claimed a method of updating alarm limits,4 consisting of three steps: “an initial step which merely measures the present value of the process variable (e.g., the temperature); an intermediate step which uses an algorithm to calculate an updated alarm-limit value; and a final step in which the actual alarm limit is adjusted to the updated value.” Parker v. Flook, 437 U.S. 584, 585, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978). The Court noted that “[t]he only difference between the conventional methods of changing alarm limits” and the claimed method “rests in the second step — the mathematical algorithm or formula.” Id. at 585-86, 98 S.Ct. 2522; see also id. at 588, 98 S.Ct. 2522 (stating that because the patentee did not challenge the examiner’s finding, the Court assumed that “the formula is the only novel feature of respondent’s method”). *946The Supreme Court held that the application did not claim a patentable invention. Id. at 594, 98 S.Ct. 2522. The Supreme Court explained that “[t]he only novel feature of the method is a mathematical formula,” id. at 585, 98 S.Ct. 2522, and the discovery of a phenomenon of nature or mathematical formula “cannot support a patent unless there is some other inventive concept in its application.” Id. at 594, 98 S.Ct. 2522. In addition, the Supreme Court rejected the patentee’s argument that his invention was patentable because, unlike the patent in Benson, his invention did not wholly preempt the use of a mathematical formula. See id. at 589-95, 98 S.Ct. 2522. The Court recognized that the invention did not wholly preempt the formula, but explained that “ ‘if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.’ ” Id. at 595, 98 S.Ct. 2522 (quoting In re Richman, 563 F.2d 1026, 1030 (CCPA 1977)); see also id. at 590, 98 S.Ct. 2522 (“The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques.”). D. Diamond v. Diehr The patent application in Diehr claimed “a process for molding raw, uncured synthetic rubber into cured precision products.” Diamond v. Diehr, 450 U.S. 175, 177, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). The process involved constantly determining the actual temperature inside the mold, then automatically feeding the temperatures into a computer which would repetitively calculate the necessary cure time using a mathematical formula known as the Arrhenius equation, and opening the press whenever the elapsed cure time equaled the calculated necessary cure time. See id. at 178-79 & n. 5, 101 S.Ct. 1048. The Supreme Court found the invention to be patentable. The Court held that “a physical and chemical process for molding precision synthetic rubber products falls within the § 101 categories of possibly patentable subject matter.” Id. at 184, 101 S.Ct. 1048. The Court distinguished the invention at issue from the inventions found unpatentable in Benson and Flook. See id. at 185-88, 191-92 & n. 14, 101 S.Ct. 1048. The Court recognized that “the process admittedly employs a well-known mathematical equation, but [the patentees] do not seek to pre-empt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process.” Id. at 187, 101 S.Ct. 1048. “[W]hen a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101.” Id. at 192, 101 S.Ct. 1048. In addition, unlike in Flook, the patentees contended that there were novel aspects of the invention other than the use of the mathematical formula. See id. at 178-79, 101 S.Ct. 1048. E. Bilski v. Kappos The patent application in Bilski claimed a procedure for instructing buyers and sellers of commodities in the energy mar*947ket how to protect against the risk of price fluctuations in those commodities. Bilski v. Kappos, 561 U.S. 593, 130 S.Ct. 3218, 3223, 177 L.Ed.2d 792 (2010). “Claim 1 describes a series of steps instructing how to hedge risk. Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.... The remaining claims explain how claims 1 and 4 can be applied to allow energy suppliers and consumers to minimize the risks resulting from fluctuations in market demand for energy.” Id. at 3223-24. The Supreme Court held that the claims were unpatentable under Benson, Flook, and Diehr because the claims “are attempts to patent abstract ideas.” Id. at 3230. The Court explained that claims 1 and 4 in the patentees’ application explain the basic concept of hedging, or protecting against risk, and the concept of hedging is an unpatentable abstract idea. Id. at 3231. “Allowing petitioners to patent risk hedging would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea.” Id. The Court also rejected the remaining claims of the application because they were “broad examples of how hedging can be used in commodities and energy markets.” Id. “Flook established that limiting an abstract idea to one field of use or adding token postsolution components d[o] not make the concept patentable.” Id. F. Mayo v. Prometheus The patents in Prometheus claimed processes that help doctors using thiopurine drugs to treat patients with autoimmune diseases determine whether a given dosage level is too low or too high. Prometheus, 132 S.Ct. at 1294. Too high a dosage would risk harmful side effects, but too low a dosage might be ineffective. Id. at 1295. At the time of the invention, scientists already understood that the levels of certain metabolites in a patient’s blood were correlated with the likelihood that a particular dosage of a thiopurine drug could cause harm or prove ineffective. Id. The patents’ claims set forth processes embodying researchers’ findings that identified the precise correlations between metabolite levels and likely harm or ineffectiveness. Id. The Supreme Court held that the claims were invalid under § 101. Id. at 1305. The Court explained that “Prometheus’ patents set forth laws of nature — namely, relationships between concentrations of certain metabolites in the blood and the likelihood that a dosage of a thiopurine drug will prove ineffective or cause harm.” Id. at 1296. “If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself. A patent, for example, could not simply recite a law of nature and then add the instruction ‘apply the law.’ ” Id. at 1297. Therefore, the Court concluded that although the patents recited additional steps in addition to the law of nature, the additional steps were insufficient to transform the character of the claims. See id. at 1297-98 (“[T]he claims inform a relevant audience about certain laws of nature; any additional steps consist of well understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately.”). G. Ass’n for Molecular Pathology v. Myriad The patentees in Myriad discovered the precise location and sequence of two human genes, the BRCA1 and BRCA2 genes, *948mutations of which can substantially increase the risks of breast and ovarian cancer, and obtained several patents based on that discovery. Myriad, 133 S.Ct. at 2110-11. The claims at issue gave Myriad “the exclusive right to isolate an individual's BRCA1 and BRCA2 genes ... by breaking the covalent bonds that connect the DNA to the rest of the individual’s genome. The patents [also gave] Myriad the exclusive right to synthetically create BRCA cDNA [ (“complementary DNA”) ].” Id. at 2113. The Supreme Court held that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.” Id. at 2111. The Court noted that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes and did not create or alter the genetic structure of DNA. Id. at 2116. “Instead, Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes within chromosomes 17 and 13.” Id. “To be sure, [Myriad] found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.” Id. at 2117. In contrast, the Court found that cDNA is not a “product of nature” and, therefore, is patent eligible under § 101. Id. at 2119. DISCUSSION Ariosa argues that claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of the ’540 patent are not drawn to patent eligible subject matter because paternally inherited cffDNA is a natural phenomenon and the claims of the ’540 patent merely add well-understood, routine, conventional activity in the field to that natural phenomenon. Docket No. 219 at 7-20. In response, Sequenom argues that the claimed methods are patentable because they are novel uses of a natural phenomenon, rather than a patent on the natural phenomenon itself. Docket No. 223 at 7-18. In addition, Sequenom argues that the claims are patentable because the claims do not preempt all uses of cffDNA. Id. at 18-22. The parties agree that neither cffDNA nor the discovery of cffDNA in maternal plasma or serum is patentable, because the presence of cffDNA in maternal plasma or serum is a natural phenomenon. Docket No. 219 at 1-2; Docket No. 223 at 1, 8; see Myriad, 133 S.Ct. at 2116; Prometheus, 132 S.Ct. at 1293; see also Funk Bros., 333 U.S. at 130, 68 S.Ct. 440 (“He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes.”). This is true even if the discovery of cffDNA in maternal plasma or serum was considered groundbreaking, innovative, and brilliant. See Myriad, 133 S.Ct. at 2117. However, the ’540 patent does not claim as an invention the discovery of cffDNA in maternal plasma or serum. The ’540 patent claims methods of detecting paternally inherited cffDNA in maternal plasma or serum. See ’540 Patent at 2:1-5, 23:60-26:40. Therefore, the issue before the Court is whether the steps of the claimed methods in the ’540 patent, applied to that natural phenomenon, are sufficient to render the claims patentable. See Prometheus, 132 S.Ct. at 1297 (“[D]o the patent claims add enough to their statements of the correlations to allow the processes they describe to qualify as patent eligible processes that apply natural laws”). A process or method is not un-patentable simply because it contains a law of nature, a natural phenomenon, or an abstract idea. Prometheus, 132 S.Ct. at 1293; Flook, 437 U.S. at 590, 98 S.Ct. 2522. But, to be patentable, a process that focus*949es upon the use of a natural law, a natural phenomenon, or an abstract idea must contain other elements or a combination of elements, sometimes referred to as an “inventive concept,” sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the natural law, natural phenomenon, or abstract idea itself. Prometheus, 132 S.Ct. at 1294; see also Flook, 437 U.S. at 594, 98 S.Ct. 2522 (“[T]he discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application”). In other words, the claimed process — apart from the natural law, natural phenomenon, or abstract idea — must involve more than “well-understood, routine, conventional activity,” previously engaged in by those in the field. Prometheus, 132 S.Ct. at 1294, 1299; see also id. at 1300 (“[SJimply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable.”); Myriad, 133 S.Ct. at 2119-20 (explaining that an innovative method of manipulating a natural phenomenon — as opposed to applying a well-understood process in the field — would be patentable). Here, Ariosa argues that the method steps contained in claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of the ’540 patent do not add enough to the natural phenomenon of paternally inherited cffDNA to make these claims patentable under § 101. Docket No. 219 at 10-20. Specifically, Ari-osa argues that the additional limitations in the claims either apply well-understood, routine, and conventional activity to the natural phenomenon or limit the natural phenomenon to specific types of the natural phenomenon, which are also unpatentable. See id. The Court agrees. For example, claim 1 of the ’540 patent claims a method for detecting cffDNA, comprising the following two steps: “amplifying a paternally inherited nucleic acid from the serum or plasma sample [from a pregnant female] and detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample.” ’540 Patent at 23:64-67. Ariosa has presented the Court with evidence, including the specification and prosecution history of the ’540 patent and testimony by Sequenom’s own expert, Dr. Evans, stating that the amplification and detection of DNA sequences in plasma or serum was well known by 1997. Docket No. 219 at 10-14 (citing evidence); Docket No. 238 at 6-7 (citing evidence). For example, the specification of the ’540 patent states that “[t]he preparation of serum of plasma from the maternal blood sample is carried out by standard techniques” and also states “[standard nucleic acid amplification systems can be used.” ’540 Patent at 2:26-27, 2:44-45; see also Docket No. 219-7, Gindler Decl. Ex. 5 ¶ 7. In addition, the inventors during the prosecution history stated that any of the well-known, routine techniques for detection of DNA could be used to detect fetal DNA in maternal serum or plasma. Docket No. 219-4, Gindler Decl. Ex. 2 at 5, 7-8,10, 12; see also ’540 Patent at 1:38 — 43. Sequenom’s expert Dr. Evans acknowledged that traditional DNA diagnostics, prior to the invention, commonly involved sample preparation, amplification, and detection. Docket No. 219-6, Gindler Decl. Ex. 4 at 188:5-13; see also id. at 150:18-151:7, 152:4-15. Dr. Evans also acknowledged that others before the inventors had amplified and detected nucleic acid in plasma or serum. Id. at 188:15-17; Docket No. 35, Evans Decl. ¶ 58; see also Docket No. 238-7, Gindler Decl. Ex. 16 at 485 (“There has been much interest in the use of DNA derived from plasma or serum for molecular diagnosis.”). Sequenom does not contest that these steps and other steps in the *950patent5 were well-understood, routine, and conventional activity by those in the field at the time of the invention. Indeed, in its reply brief and at oral argument, Seque-nom acknowledges that the claims of the ’540 patent merely apply “conventional techniques” to the newly discovered natural phenomenon of cffDNA. Docket No. 240 at 7 (“Just like Myriad’s claim 21, the ’540 patent’s claims apply conventional techniques to use a newly-isolated natural phenomenon for diagnostic purposes.”); Docket No. 253 at 19:7-10 (“The inventive concept was to take a known method and to look at [it] in a place where people were — where the Federal Circuit and all the experts agree were throwing waste away, to look there ...”), 21:19-21 (“I don’t disagree that if you go through all the elements in the claim you could put a check as either a conventional item or a natural phenomenon.), 37:20-22, 38:25-39:1 (“They used conventional tools to make it useful to other people.”). Because the claimed processes at issue — apart from the natural phenomenon of paternally inherited cffDNA — involve no more than well-understood, routine, conventional activity, previously engaged in by those in the field, they are not drawn to patent eligible subject matter and are invalid under § 101. See Prometheus, 132 S.Ct. at 1294, 1299-1300; Myriad, 133 S.Ct. at 2119-20. Sequenom argues that the claims are patentable because although cffDNA is not patentable, the use of-cffDNA is patent eligible. Docket No. 223 at 7-10. The Court disagrees. The Supreme Court has never stated that any use of a natural phenomenon is patentable. To the contrary, the Supreme Court has held that “simply appending conventional steps, specified at a high level of generality, to laws of nature, natural phenomena, and abstract ideas cannot make those laws, phenomena, and ideas patentable.” Prometheus, 132 S.Ct. at 1300. It is only an innovative or inventive use of a natural phenomenon that is afforded patent protection. See Myriad, 133 S.Ct. at 2119 (“Had Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent.”); Flook, 437 U.S. at 594, 98 S.Ct. 2522 (“[A]n inventive application of the principle may be patented.”). Sequenom attempts to argue that its patent claims an inventive method of using cffDNA. But, based on the undisputed facts before the Court, the *951only inventive part of the patent is that the conventional techniques of DNA detection known at the time of the invention are applied to paternally inherited cffDNA as opposed to other types of DNA. Thus, the only inventive concept contained in the patent is the discovery of cffDNA, which is not patentable. The Court’s conclusion conforms with the relevant Supreme Court case law, in particular Flook and Myriad. The patent in Flook, like the present patent, claimed methods that utilized an abstract idea or a natural phenomenon — a mathematical algorithm in Flook, paternally inherited cffDNA in the present case.6 See 437 U.S. at 585, 98 S.Ct. 2522. In Flook, as in here, the use of the abstract idea or the natural phenomenon is the only inventive feature of the claims. See id. at 588, 98 S.Ct. 2522. In Flook, the Supreme Court noted “the only difference between the conventional methods of changing alarm limits and that described in respondent’s application rests in the second step — the mathematical algorithm or formula.” Id. at 585-86, 98 S.Ct. 2522. Similarly, based on the undisputed facts, the only difference between the conventional methods of DNA detection and that described in the ’540 patent rests in the application of the methods to paternally inherited cffDNA, a natural phenomenon. Sequenom argues that its use of cffDNA is inventive because prior to the invention, no one had started with the mother’s plasma or serum to detect paternally inherited fetal DNA. Docket No. 223 at 7, 16. Even assuming this true, the same argument could be made for the claims in Flook. Prior to the invention in Flook, no one had used that particular mathematical formula to update alarm limits. Despite this, the Supreme Court held that the claims in Flook were not drawn to patent eligible subject matter. Thus, use of a newly discovered natural phenomenon, law of nature, or abstract idea will not render a claim patentable if the use of that natural phenomenon, law of nature or abstract idea is the only innovation contained in the patent. See Flook, 437 U.S. at 594, 98 S.Ct. 2522 (“[T]he discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application.”); Prometheus, 132 S.Ct. at 1294, 1299 (requiring that claims — apart from the natural phenomenon — contain more than well-understood, routine, conventional activity); Funk Bros., 333 U.S. at 131, 68 S.Ct. 440 (“[HJowever ingenious the discovery of that natural principle may have been, the application of it is hardly more than an advance in the packaging of the inoculants.”). As explained in Flook, “the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques.” 437 U.S. at 590, 98 S.Ct. 2522. The Court similarly concludes that paternally inherited cffDNA is not patentable simply because the claims contain steps indicating that it may be detected using existing DNA detection methods. *952Further, even though Myriad involved composition claims rather than method claims, that decision also supports the Court’s conclusion. The claims in Myriad gave the patentees the exclusive right to isolate the BRCA1 and BCRA2 genes. See 133 S.Ct. at 2113. Although the Supreme Court was not presented with method claims, the Court explained “[h]ad Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent. But the processes used by Myriad to isolate DNA were well understood by geneticists at the time of Myriad’s patents....”7 Id. at 2119-20. Similarly, had the inventors of the ’540 patent created an innovative method of performing DNA detection while searching for paternally inherited cffDNA, such as a new method of amplification or fractionation, those claims would be patentable. But, the claims presently before the Court simply rely on processes to detect DNA that — as Sequenom concedes- — were conventional techniques by those in the field at the time of the invention. Docket No. 240 at 7; Docket No. 253 at 19:7-10, 21:19-121, 37:20-22, 38:25-39:1.8 Sequenom cautions that the Court should not engage in a step-by-step dismantling of the claims. Docket No. 223 at 22-24 (citing Diehr, 450 U.S. at 188, 101 S.Ct. 1048 (“In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made.”); Ultramercial, 722 F.3d at 1344)). In evaluating the pat-entability of the claims, the Court has not I *953dissected the claims into their individual limitations and then determined whether the individual elements are old or new. Rather, the Court has considered the claimed processes as a whole. The unre-butted evidence does not merely show that the individual steps of fractionation, amplification and detection were well-understood, routine, and conventional activity at the time of the invention. The evidence shows that its was well-understood, routine, and conventional activity to combine these steps to detect DNA in serum or plasma. See ’540 Patent at 1:19-43; Docket No. 35, Evans Deck ¶ 58; Docket No. 219-6, Gindler Decl. Ex. 4 at 188:5-13, 188:15-17; Docket No. 23 8-7, Gindler Deck Ex. 16 at 485. Therefore, looking at the claimed processes as a whole, the only inventive component of the processes in the ’540 patent is to apply those well-understood, routine processes to paternally inherited cffDNA, a natural phenomenon. In addition, in determining whether a claim is patentable, a court should consider whether the claim poses a risk of preempting a law of nature, natural phenomenon, or abstract idea.9 See Accenture, 728 F.3d 1336, at 1340-41, 2013 U.S.App. LEXIS 18446, at *10-11; CLS Bank Int’l v. Alice Corp. Pty, 717 F.3d 1269, 1280-82 (Fed.Cir.2013) (en banc) (Lourie, J., concurring); see also Prometheus, 132 S.Ct. at 1294 (Supreme Court case law “warn[s] against upholding patents that claim processes that too broadly preempt the use of a natural law.”); Diehr, 450 U.S. at 187,101 S.Ct. 1048 (noting that the claims did not preempt use of the equation). Sequenom argues that the claims of the ’540 patent do not preempt all other uses of cffDNA. Docket No. 223 at 20. In support of this argument, Seque-nom has presented the Court with scientific articles describing methods for detecting cffDNA. Docket No. 223-1, Root Deck Ex. A at A1875, A2011-12, A2102-05, A2273-80, Ex. F. Ariosa argues that even if these articles disclose alternative methods of detecting cffDNA, Sequenom has failed to present any evidence showing that any of these alternative methods are practical and commercially viable. Docket No. 238 at 17 n.3. In response, Sequenom argues that it is only relevant that the alternative methods can be practiced, not that they are commercially viable alternatives. Docket No. 240 at 14-15. The Court disagrees. If the alternative methods are not commercially viable, then the effect of the patent in practice would be to preempt all uses of the natural phenomenon. It is important to note that the ’540 patent does not merely claim uses or applications of cffDNA, it claims methods for detecting the natural phenomenon. Because generally one must be able to find a *954natural phenomenon to use it and apply it, claims covering the only commercially viable way of detecting that phenomenon do carry a substantial risk of preempting all practical uses of it. It is also important to note the age of the patent. The ’540 patent was issued in July 2001. That twelve years have passed since the issuance of the patent but Sequenom does not present the Court with any evidence of a commercially viable alternative method of detecting cffDNA reflects the broad scope of the ’540 patent’s claims and the great risk that the patent could preempt the use of cffDNA. Indeed, Sequenom itself has acknowledged the preemptive effect of its patent. See Docket No. 238-1, Gindler Decl Ex. 11 at 2 (“ ‘[Management believes that the in-licensed ’540 patent ... will block all non-invasive cell-free DNA-based approaches.’ ”), Ex. 12 at 6 (“[W]e believe [the ’540 patent] is the underpinnings of this whole field, and potentially believe anybody whose [sic] developing, an approach that interrogates the circulating cell [free] DNA is infringing this key patent in the field.”) Further, the articles cited by Sequenom were published after the issuance of the patent and well after the date of the invention. See Docket No. 223-1, Root Decl. Ex. A at A2102-05 (2003), A2273-80 (2012), Ex. F (2002). Therefore, even assuming that the articles disclose alternative methods of detecting cffDNA, Seque-nom has failed to show that any alternative methods existed at the time of the invention or at the time of issuance of the patent. Thus, it appears that the effect of issuing the ’540 patent was to wholly preempt all known methods of detecting cffDNA at that time. Accordingly, the Court concludes that the claims at issue pose a substantial risk of preempting the natural phenomenon of paternally inherited cffDNA and that the preemption inquiry supports the Court’s conclusion that the claims are not drawn to patent eligible subject matter. In sum, the Court concludes that, based on the undisputed facts before the Court, Ariosa has met its burden of proving by clear and convincing evidence that claims 1, 2, 4, 5, 8, 19-22, 24, and 25 of the ’540 patent are not drawn to patent eligible subject matter and are invalid under 35 U.S.C. § 101. CONCLUSION For the foregoing reasons, the Court GRANTS Ariosa’s motion for summary judgment and DENIES Sequenom’s motion for summary judgment. Docket Nos. 219, 223. IT IS SO ORDERED. . "Nucleic acid” is the overall name for the class of molecules that includes DNA (deoxy-ribonucleic acid) and RNA (ribonucleic acid). The significance of the discovery is that the process of isolating fetal cells was not necessary because fetal DNA was present outside of cells, as "extracellular” or "cell-free DNA” suspended in the maternal bloodstream. Docket No. 35, Evans Decl. ¶¶ 53, 57. Blood is made up of cells and plasma (the fluid containing proteins and other molecules in which cells are suspended). Id. ¶ 44. Serum is plasma without the clotting proteins (platelets), i.e., blood minus the cells and the clotting factors. Id. . Two other cases have been filed in the Northern District of California which also seek declaratory judgments that specific products do not infringe the '540 patent and that the '540 patent is invalid. See Matera, Inc. v. Sequenom, Inc., Case No. 12-cv-00132-SI (filed Jan. 6, 2012); Verinata Health, Inc. v. Sequenom, Inc., Case No. 12-cv-865-SI (filed Feb. 22, 2012). . Leguminous plants take nitrogen from the air and fix it in the plant for conversion to organic nitrogenous compounds. Funk Bros., 333 U.S. at 129, 68 S.Ct. 440. The ability of these plants to fix nitrogen from the air depends on the presence of bacteria of the genus Rhizobium in the plant. Id. Bacteria of the genus Rhizobium fall into at least six species. Id. "No one species will infect the roots of all species of leguminous plants. But each will infect well-defined groups of those plants.” Id. . "An 'alarm limit’ is a number.” Parker v. Flook, 437 U.S. 584, 585, 98 S.Ct. 2522, 57 L.Ed.2d451 (1978). During catalytic conversion processes (various processes used in the petrochemical and oil-refining industries), operating conditions such as temperature, pressure and flow rates are constantly monitored. Id. "When any of these 'process variables' exceeds a predetermined 'alarm limit,' an alarm may signal the presence .of an abnormal condition indicating either inefficiency or perhaps danger. Fixed alarm limits may be appropriate for a steady operation, but during transient operating situations, such as start-up, it may be necessary to 'update' the alarm limits periodically.” Id. . Dependent Claims 2 and 4 respectively add the limitations of requiring the use of the polymerase chain reaction ("PCR”) and the use of a sequence specific probe. See ’540 Patent at 24:60-61, 24:65-67. Ariosa has presented the Court with evidence that these two techniques were well-understood, routine, conventional activity engaged in by those in the field at the time of the invention. See id. at 2:44-45, 5:7-10, 6:42-7:10, 9:62-63, 10:5-7; Docket No. 35, Evans Decl. ¶ 42. Dependent Claims 5, 8, 19, and 20 merely limit the natural phenomenon of paternally inherited cffDNA to specific types of that natural phenomenon, such as requiring that the cffDNA is from a Y chromosome or requiring that the cffDNA is at least a certain percentage of the total DNA. See '540 Patent at 25:1-3, 25:8-10, 25:39-26:3. A specific type of a natural phenomenon is still a natural phenomenon and, thus, is not patentable. See Myriad, 133 S.Ct. at 2116; Prometheus, 132 S.Ct. at 1293. Dependent claims 21 and 22 add the limitations of fractionating the blood sample and providing a diagnosis based on the cffDNA. See id. at 26:4-26:16. Independent claims 24 and 25 contain — in addition to the limitations in claim 1 — limitations related to fractionating a blood sample. See id. at 26:20-36. Ariosa has presented the Court with evidence that fractionating blood and providing a diagnosis based on fetal DNA were well-understood, routine, conventional activity engaged in by those in the field at the time of the invention. See id. at 2:26-27; Docket No. 219-2, Gindler Decl. Ex. 3 at 6, Ex. 4 at 152:4-15, Ex. 5 ¶ 7. . The Court recognizes that the claims in Flook utilized an abstract idea, while the present claims utilize a natural phenomenon. However, the Supreme Court has never drawn a distinction between natural phenomena, laws of nature, and abstract ideas in determining patent eligibility. To the contrary, the Supreme Court has applied its § 101 jurisprudence uniformly regardless of whether the claims at issue involved a natural phenomenon, law of nature, or abstract idea. See, e.g., Myriad, 133 S.Ct. 2116-20 (natural phenomenon); Prometheus, 132 S.Ct. at 1293-1302 (law of nature); Bilski, 130 S.Ct. at 3229-31 (abstract idea). . The Supreme Court drew this distinction even though Myriad was the first to use those well-understood processes to isolate the BRCA1 and BRCA2 genes. See Myriad, 133 S.Ct. at 2112-13. Therefore, Myriad also supports the principle that the use of a newly discovered natural phenomenon, law of nature, or abstract idea will not render a claim patentable if the use of that natural phenomenon, law of nature or abstract idea is the only innovation contained in the patent. . The Court rejects Sequenom’s argument that Myriad supports the patentability of the ’540 patent’s claims because the Supreme Court implicitly approved of claim 21 of Myriad's patent. See Docket No. 223 at 12; Docket No. 240 at 6-7. In Myriad, the Supreme Court endorsed the statement in Judge Bry-son's Federal Circuit dissent that " '[a]s the first party with knowledge of the [BRCA1 and BRCA2] sequences, Myriad was in an excellent position to claim applications of that knowledge. Many of its unchallenged claims are limited to such applications.’ ” 133 S.Ct. at 2120. In his dissent, Judge Bryson cited to claim 21 as an example of such an application. However, the Supreme Court did not refer to claim 21, or any other method claims, as an example of that principle. See id. Moreover, although Sequenom argues that claim 21 merely applied the conventional steps of hybridizing and detecting with probes the BRCA1 gene, Docket No. 223 at 12, Se-quenom has not presented this Court with any evidence showing that hybridizing and detecting a gene with probes was conventional activity at the time of that invention. In addition, the Court rejects Sequenom’s argument that Myriad's holding that cDNA is patent eligible supports the patentability of the claims of the '540 patent. Docket No. 223 at 11; Docket No. 240 at 5. In Myriad, the Supreme Court held that cDNA was patent eligible because it was not a naturally occurring phenomenon. 133 S.Ct. at 2119. Here, Sequenom has failed to provide any evidence or argument stating that the methods claimed in the '540 patent produce a non-naturally occurring phenomenon. To the contrary, Se-quenom concedes that cffDNA is a naturally occurring phenomenon. See Docket No. 223 at 1, 8. . Although the Court agrees that preemption is a consideration when performing a § 101 analysis, the Court disagrees with Sequenom that whether the claims preempt all uses of the natural phenomenon is dispositive of the analysis. See Docket No. 223 at 2, 20. In Flook, the Supreme Court held that the claims were drawn to ineligible subject matter even though the Supreme Court conceded that the claims did not wholly preempt the mathematical formula at issue. See 437 U.S. at 589-90, 98 S.Ct. 2522. In Bilski, the Supreme Court held that the dependent claims at issue were drawn to ineligible subject matter even though they were limited to how the abstract idea of hedging could be used in commodities and energy markets and, thus, would not preempt use of the abstract idea in other fields. See 130 S.Ct. at 3231. Flook and Bilski have not been overruled and remain good precedent. See also Ultramercial, 722 F.3d at 1346 (''[T]he Supreme Court has stated that, even if a claim does not wholly preempt an abstract idea, it still will not be limited meaningfully if it contains only insignificant or token pre- or post-solution activity — such as identifying a relevant audience, a category of use, field of use, or technological environment.”).

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MEMORANDUM * Substantial evidence supports the jury’s finding by special verdict that Mary J. Kling’s copyright claim against the defendants is barred by the Copyright Act’s three-year statute of limitations. See 17 U.S.C. § 507(b). Although damages caused by copyright infringements during the three years immediately preceding the filing of the action would be recoverable, Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994), Kling presented no evidence to support an award of such damages. The district court, therefore, did not err by not instructing the jury that they could award damages to Kling for infringements during that period. Because we conclude that Kling’s copyright claim is barred by the statute of limitations, we do not reach the remaining issues raised by her appeal. *823With regard to the appellees’ cross-appeal, we conclude that the district court properly considered the non-exclusive Fogerty factors of frivolousness, motivation, objective unreasonableness, and compensation and deterrence, Fogerty v. Fantasy, Inc., 510 U.S. 517, 584 n. 19, 114 S.Ct. 1028, 127 L.Ed.2d 455 (1994), as weE as the plaintiffs degree of success, Jackson v. Axton, 25 F.3d 884, 890 (9th Cir.1994), and did not abuse its discretion in denying the appeEees’ request for attorney fees under 17 U.S.C. § 505. See Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM*** Lois Wallace appeals the district court’s judgment affirming the administrative law judge’s (ALJ) decision to deny social security disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review the ALJ’s decision to deny social security benefits to ensure it is supported by substantial evidence and free of legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Subjective Testimony Wallace argues that the ALJ’s decision to discredit her testimony is not supported by substantial evidence. We disagree. The ALJ gave specific and cogent reasons for discrediting Wallace’s testimony, and those reasons are supported by substantial evidence in the record. See *825Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir.1999). First, the ALJ discredited Wallace’s allegation that her vision prevented office work based on his findings that she had been able to do office work for more than ten years, despite her congenital visual impairment; that she had a conviction for disability in excess of her physical limitations; that she had not attempted to simulate the use of a computer under the best circumstances; and that she had not ruled out the possibility of doing other types of office work. These are “specific and cogent” reasons for discrediting Wallace’s testimony that she could not do office work because of her vision. The ALJ’s decision to discredit this testimony has support in substantial evidence and is not legal error. Second, there is substantial evidence to support the ALJ’s decision to discredit Wallace’s testimony that back pain prevented her from working. Though the ALJ found that Wallace had some pain, the record supports the ALJ’s finding that Wallace tended to embellish her symptoms, that her testimony during the hearing was dramatic, that her behavior was inconsistent with her complaints of pain when being observed casually before a medical examination, and that her testimony was inconsistent with the reports of treating physicians. The record also indicates that Wallace gave inconsistent reasons for quitting her job as a transcriber. Finally, the record supports the ALJ’s decision to disregard Wallace’s complaints of low frustration tolerance, nervousness, and depression because these impairments were not established by objective medical evidence. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.1986).1 Residual Functional Capacity The ALJ’s finding that Wallace is capable of performing light work is supported by substantial evidence. All of Wallace’s treating physicians found Wallace capable of working. The medical opinion of the state medical consultant, who found her capable of light work, was consistent with her treating physicians’ opinions. The record also supports the ALJ’s finding that Wallace could use a computer if it was aligned properly, if proper lighting was provided, and if a larger font size was used. Also, none of the physicians opined that computer work at a desk would be impossible. Finally, the record shows that, contrary to Wallace’s contention, the ALJ considered the combined effects of Wallace’s impairments. The ALJ relied on the testimony of the vocational expert, who considered the combined effects of her back and visual impairments and found her capable of working in clerical jobs with a very limited amount of computer work, including filing, sorting, and general office work. See Erickson v. Shalala, 9 F.3d 813, 817 (9th Cir.1993). Examining Physicians The ALJ gave specific and legitimate reasons for rejecting Dr. Olsen’s and Dr. Curtis’ opinions, and those reasons are supported by substantial evidence. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). The record supports the ALJ’s decision to reject Dr. Olsen’s opinion regarding Wallace’s back impairment. Dr. Olsen was not a back specialist and rendered an opinion beyond the scope of his speciality. Ad*826ditionally, Dr. Olsen only examined Wallace once, see Holohan v. Massanari, 246 F.3d 1195, 1203 n. 2 (9th Cir.2001), and Dr. Olsen’s opinion was rendered after the ALJ issued an initial adverse decision, rendering the opinion less persuasive. See Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1463 (9th Cir.1995). The record also supports the ALJ’s decision to reject Dr. Curtis’ opinion regarding Wallace’s visual impairment. Dr. Curtis’ opinion was beyond his specialty, was contrary to the treating physicians’ opinions, and was based primarily on Wallace’s own reports of the severity of her condition, which were properly discounted. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989) (holding that physician’s opinion may be disregarded if it is based on subjective complaints that have already been discredited). Furthermore, Dr. Curtis only examined Wallace once, and his opinion was rendered after the ALJ issued an initial adverse decision. Vocational Expert The record supports the ALJ’s decision to disregard the vocational expert’s testimony regarding Wallace’s anxiety. The vocational expert’s role is to “translate factual scenarios into realistic job market probabilities,” Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir.1982), not to evaluate medical evidence. The ALJ’s decision to discredit Wallace’s testimony and to find her capable of light work is supported by substantial evidence and is free of legal error. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. . Dr. Curtis’ notes indicate that he thought Wallace was depressed, but his findings were based on his observations of Wallace during the exam. Dr. Curtis is neither a psychologist nor a psychiatrist, and he did not state that she had been depressed before the expiration of her insured status. See Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1461 n. 4 (9th Cir.1995).

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MEMORANDUM*** Lester McKee appeals the district court’s decision affirming the Commissioner of Social Security’s denial of his application for disability benefits under the Social Security Act. McKee argues the record does not support the Commissioner’s finding that McKee could perform his past relevant work. ‘We review de novo the district court’s order affirming the Commissioner’s denial of benefits.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999). The Commissioner’s decision will be upheld so long as it is supported by substantial evidence on the record as a whole and not based on legal error. Id. Substantial evidence refers to “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). In reviewing the record as a whole, we hold it provides substantial evidence to support the Commissioner’s findings. Five different doctors produced evidence indicating that McKee made an excellent recovery from his heart surgery and has few remaining limitations. Dr. Burwell, for instance, stated in a report that he believed McKee could return to his former job as a gas station attendant. Similarly, Dr. Ermshar, along with three other doctors, stated that McKee had only minimal impairments. With this evidence, the Commissioner reasonably concluded that McKee could perform his past work. The Commissioner thus properly denied McKee’s request for benefits as a supervisor. Judgment AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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MEMORANDUM ** Lucio Mejia-Leal appeals the 77-month sentence imposed following his guilty-plea conviction for illegal reentry following removal under 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we vacate and remand. Mejia-Leal contends, among other things, that the government failed to provide the sentencing court with sufficient documentation or judicially noticeable facts for the court to determine whether his 1994 conviction under Cal. Health & Safety Code § 11351.5 warrants a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A). See United States v. Corona-Sanchez, 291 F.3d 1201, 1211-12 (9th Cir.2002) (en banc). The government has filed an “Ex Parte Response to Notice of Default and Motion to Seal” in which the government concedes that “Appellant’s position is meritorious and the case should be remanded.” Accordingly, we vacate the sentence and remand for resentencing. We grant the government’s motion to file under seal the Ex Parte Response to Notice of Default. VACATED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

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ORDER The parties having so agreed, it is ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).

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Affirmed by unpublished PER CURIAM opinion. PER CURIAM. Bobby Forrester Spoone, Jr., appeals the district court’s orders denying his motion to alter or amend a presentence investigation report and denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Spoone, No. CA-00-3378-6-13BG (D.S.C. Aug. 9, 2002; Oct. 18, 2002). We deny Spoone’s motion to consolidate this appeal with case number 02-7827. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

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