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963 F.2d 235 UNITED STATES of America, Plaintiff-Appellee,v.Jerry Joseph LAVERNE, Defendant-Appellant. No. 89-10356. United States Court of Appeals,Ninth Circuit. Submitted Feb. 12, 1992.*Decided April 28, 1992. Clifford E. Tedmon, Tedmon & Tedmon, Sacramento, Cal., for defendant-appellant. Richard J. Bender, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before: HALL and WIGGINS, Circuit Judges, and KEEP**, District Judge. WIGGINS, Circuit Judge: 1 Defendant/Appellant, Jerry Laverne, appeals the sentence he received under the United States Sentencing Guidelines for bank robbery. 18 U.S.C. § 2113(a) (1988); U.S.S.G. § 2B3.1. Laverne argues that the district court erred by announcing Laverne's sentence before Laverne was allowed to address the court in the sentencing hearing. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1988). We affirm the district court's decision. BACKGROUND 2 On March 29, 1989, Laverne plead guilty to bank robbery. Because Laverne had been convicted of five violent felonies over the last twenty-seven years, ranging from rape to kidnapping to armed robbery, he was properly classified as a "career offender" under Sentencing Guidelines section 4B1.1. Laverne was represented by counsel at all times, and the originally scheduled sentencing hearing was postponed to allow Laverne's attorney to file a sentencing brief. In the brief and at the sentencing hearing, Laverne's attorney argued that the Sentencing Guidelines produced a disproportionately harsh sentence for Laverne because Laverne was not really a "violent criminal," and he urged the court to impose a lesser sentence. 3 The district court rejected this argument and ruled that Guideline section 4B1.1 was applicable, that Laverne was indeed a violent criminal and career offender under the Guidelines, and that the sentence imposed under the Guidelines was appropriate. While addressing Laverne's argument, the court also stated that Laverne would receive the mid-range Guideline sentence of 225 months. After this preliminary sentence was announced, the Assistant United States Attorney reminded the court that it must allow Laverne an opportunity to make a statement before imposing sentence. The court invited Laverne to make a statement, and Laverne made the same arguments as his attorney about his status as a career offender under the Sentencing Guidelines. The court again explained that Laverne's sentence was correct under the Sentencing Guidelines and then concluded the sentencing hearing. DISCUSSION 4 "Before imposing sentence, the court shall ... address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence." Fed.R.Crim.P. 32(a)(1)(C). This rule is derived from the common law right of a criminal defendant to make a statement before sentence is imposed, as was explained in Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961). The issue before us is whether Rule 32(a)(1)(C) may be satisfied by allowing the defendant an opportunity to make a statement before the end of the sentencing hearing but after the court has indicated its tentative conclusions on sentencing. This issue is a mixed question of law and fact and we review it de novo. See United States v. McConney, 728 F.2d 1195, 1201-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980) (de novo review of whether allowing defendant's counsel to address the court without inviting a personal statement from the defendant himself satisfies the requirements of Rule 32(a)(1)). 5 We believe the district court complied with the requirements of Rule 32(a)(1)(C) when it allowed the defendant to make a statement concerning his sentence before the end of the sentencing hearing. The court was able to consider the defendant's statement and was free to alter its view of the sentence if the defendant offered a sufficient reason for changing its view. The record shows that Laverne had the same opportunity to persuade the judge to mitigate his sentence as any other defendant under Rule 32(a)(1)(C). 6 Laverne relies on Green for the proposition that judges must refrain from indicating their views on the appropriate sentence until after defendants have had their opportunity to make a statement. We read Green differently. As long as the defendant has an opportunity to make a statement during the sentencing hearing, before the court makes its final judgment, Rule 32(a)(1)(C) is satisfied. Nothing in the record indicates that the court failed to give the defendant's statement the consideration it deserved. That the court had already made a preliminary determination regarding Laverne's sentence does not indicate that the court failed to give Laverne's statement due consideration. United States v. Mata-Grullon, 887 F.2d 23, 25 (1st Cir.1989). Indeed, the record shows that the court considered Laverne's arguments very carefully when they were first raised by his attorney and was simply not persuaded when these arguments were raised again by Laverne in his statement to the court. Like the plurality in Green, we "do not read the record before us to have denied the defendant the opportunity to which Rule 32(a) entitled him." 365 U.S. at 304, 81 S.Ct. at 655. 7 Laverne also relies upon Navarro-Flores for the proposition that remand to a different district judge is necessary if the sentencing judge expresses a preliminary conclusion on the sentence before the defendant's statement. As in Navarro-Flores, we emphasize that "in exercising his right to allocution defendant has the right to present fully all available accurate information bearing on mitigation of punishment, and the district court has a duty to listen and give careful and serious consideration to such information." Id. at 1184. We are satisfied that the district court complied with this mandate. 8 Remand to a different district court judge for resentencing was appropriate in Navarro-Flores because the defendant's statement could have presented "new factual matter" after the court had expressed its final judgment. Id. In the present case, Laverne presented no new factual information or legal arguments; he simply reiterated his position as previously expressed by his attorney. Moreover, we remanded the case to a different district judge in Navarro-Flores because the record showed "repeatedly expressed views, some apparently firmly expressed, of defendant by the district judge...." Id. (footnote omitted). The record before us shows that Laverne had a fair opportunity to personally persuade the court on the issue of mitigation and that the court gave Laverne's comments serious attention. The court's views regarding Laverne's sentence were not final or firm at the time of Laverne's statement because the sentencing hearing was still in progress. 9 Thus, unlike Navarro-Flores, remand to a different district judge is unnecessary. Indeed, any remand is unnecessary because the district court gave Laverne's statements full consideration before his sentence was final. It would be a pointless exercise to remand this case so the district court could consider Laverne's statement again. The requirements of Rule 32(a)(1)(C) were met when the district court considered Laverne's statements during the first sentencing hearing; there is no need for a second. 10 Laverne's arguments, however, are not meritless. We agree that district courts must be careful to avoid the concerns raised in Navarro-Flores by reserving final judgment on the defendant's sentence until after the defendant has had an opportunity to make his statement. In the present case, nothing in the record suggests the district court's preliminary views were final or inflexible before the court heard Laverne's allocution; the court simply refused to be persuaded by arguments that it had already heard. Thus, allowing the defendant an opportunity to make a statement before the end of the sentencing hearing but after the court had orally indicated its views regarding the appropriate sentence did not violate Rule 32(a)(1)(C). 11 For these reasons, the judgment of the district court is AFFIRMED. * The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4 ** Hon. Judith Keep, United States District Judge for the Southern District of California, sitting by designation

701 F.2d 875 UNITED STATES of America, Plaintiff-Appellee,v.Terry Lee STRUYF, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ronald Orvell WILLIAMS, Defendant-Appellant. Nos. 81-5349, 81-5494. United States Court of Appeals,Eleventh Circuit. March 9, 1983. Geoffrey C. Fleck, Miami, Fla., for defendant-appellant in No. 81-5349. Lawrence W. Rosen, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant in No. 81-5494. Kenneth W. Lipman, Jon May, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee in both cases. Appeals from the United States District Court for the Southern District of Florida. Before TJOFLAT, KRAVITCH and HATCHETT, Circuit Judges. TJOFLAT, Circuit Judge: 1 Appellants Struyf and Williams were convicted in the district court of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846 (1976); Williams was also convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1976) and 18 U.S.C. Sec. 2 (1976). We affirm the convictions.1 I. 2 Both appellants urge that the district court erroneously refused to dismiss the indictment because the government's enforcement technique violated their due process rights. Appellants' arrests arose out of the same Drug Enforcement Agency (DEA) operation upheld in United States v. Savage, 701 F.2d 863, (11th Cir.1983). Because the facts of Struyf's case do not differ substantially from those in Savage, we affirm Struyf's conviction based on the reasoning expressed therein. 3 The government's conduct toward Williams is distinguishable from its conduct in Savage because the government's informant, Howard Tharpe, who was used to solicit buyers of marijuana, was Williams' former brother-in-law. Williams testified at trial that at least at one time he and Tharpe had been close friends. On cross-examination, Williams stated that he had been divorced from Tharpe's sister for nine years. He admitted that he did not see Tharpe for three to four years after the divorce, during which time Tharpe was living in Tennessee while Williams was living in Miami, Florida. Williams began seeing Tharpe occasionally when Tharpe returned to Miami, which occurred three to four years prior to trial.2 4 Williams testified that about three months prior to his arrest, which occurred on July 30, 1980, Tharpe started coming by his house and talking about drug deals. Williams testified that Tharpe came to his house about six to eight times in May, at least ten times in June, and about eight times the last two weeks in July. According to Williams, on these occasions and during phone conversations, Tharpe told Williams that unidentified persons were chasing him and threatening to kill his children; that his wife had to have a lung removed; that he had stomach cancer; and that he needed money desperately. 5 Williams also called three witnesses who testified collectively that they had seen Williams upset either after or while he had talked with Tharpe either in person or on the phone.3 One witness testified that he was at a restaurant with Williams and Tharpe, during which time Tharpe told Williams that his family was being harassed. In addition, DEA agent George A. Auflick, who supervised the government's operation, testified that Tharpe had been an informant with the DEA for the greater part of two years prior to the date of Williams' arrest; that he, Auflick, had never met Williams until the date of arrest; that he had had phone conversations with Williams concerning a cocaine deal he was trying to set up with Williams prior to Williams' arrest; and that during the course of these conversations and on the date of Williams' arrest he thought that Tharpe was Williams' brother-in-law. All of the above testimony was uncontradicted. 6 Regardless whether Williams' testimony and that of his witnesses should be credited, and regardless whether Tharpe's statements to Williams, if made, were true, we do not believe the above facts make out a due process violation. See United States v. Tobias, 662 F.2d 381 (5th Cir. Unit B 1981).4 The DEA merely set up a scheme in which its agents posed as marijuana sellers and hired confidential informants to round up buyers. Obviously, these informants, including Tharpe, believed it was in their interest to round up as many buyers as they could. The facts thus portray a government informant who out of self-interest independently selected and approached his former brother-in-law to engage in a marijuana deal.5 The informant described his financial and other problems to his former brother-in-law, asked his former brother-in-law to engage in marijuana deals, and obtained the cooperation he sought. These facts do not establish a due process violation. 7 Rather, Williams made out an arguable case for entrapment, which the jury, who had the opportunity to judge the demeanor of the witnesses, rejected.6 This jury finding is important because it is a finding that Williams was predisposed to commit the crimes of which he was convicted. Although we might consider it extreme and outrageous for a largely unsupervised DEA informant to solicit innocent persons into drug deals by invoking their sympathies,7 we do not consider it extreme and outrageous under the facts of this case for such an informant to invoke the sympathies of a former brother-in-law already predisposed to engage in dealings in marijuana. Thus, we reject Williams' due process claim. II. 8 Appellant Struyf asserts that he was denied his right to a speedy trial under the Speedy Trial Act of 1974, 18 U.S.C. Secs. 3161-3174 (1976 & Supp. V 1981) (the Act) and under the sixth amendment to the Constitution. Under the Act 9 [I]n any case in which a plea of not guilty is entered, the trial of a defendant ... shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. 10 Id. Sec. 3161(c)(1) (Supp. V 1981). 11 Section 3161(h) of the Act sets forth those periods of delay excluded in computing the time within which the trial must be commenced. The following exclusions are relevant to Struyf's claim: "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing or other prompt disposition of such motion," id. Sec. 3161(h)(1)(F) (Supp. V 1981); "delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court," id. Sec. 3161(h)(1)(J) (Supp. V 1981); "[a] reasonable period of delay when the defendant is joined for trial with a co-defendant as to whom the time for trial has not run and no motion for severance has been granted," id. Sec. 3161(h)(7) (1976). 12 Struyf's argument that the statutory time period was exceeded rests in large part on his inclusion of the time periods during which various pre-trial motions of his codefendants were pending.8 Section 3161(h)(7), however, makes clear that " 'an exclusion applicable to one defendant applies to all codefendants.' " United States v. Fogarty, 692 F.2d 542, 546 (8th Cir.1982) (quoting United States v. Edwards, 627 F.2d 460, 461 (D.C.Cir.), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1980)). This court has interpreted section 3161(h)(7) in the same manner. United States v. Varella, 692 F.2d 1352, 1358 (11th Cir.1982). 13 Excluding those periods during which pre-trial motions of Struyf's codefendants were pending, we find only thirty-one days of includable time between the date the indictment was filed and the date of trial, computed as follows: 14 Days Defendant Date Event Elapsed --------------------------------------------------------- All defendants 08-27-80 Indictment (Record, vol. 1, at 1) 7 Struyf 09-04-80 Motion to withdraw (Id. at 5) 09-22-80 Order (Id. at 97) Gidus 09-11-80 9 motions (not part of record) 09-22-80 Order (Id. at 96) Struyf 09-18-80 22 motions(Id. at 12-95) 10-02-80 Order (Id. at 111) Williams 09-25-80 3 motions(Id. at 98-109) 10-02-80 Order (Id. at 111) 12 Struyf 10-15-80 Motion to suppress (Id. at 115) 02-03-81 Order (Record, vol. 2, at 164) Struyf 10-21-80 Motion to travel (Record, vol. 1, at 120) 12-04-80 Order (Record, vol. 2, at 143) Struyf 10-27-80 Motion to dismiss(Id. at 132) 02-03-81 Order (Id. at 164) Williams 10-24-80 Motion to adopt Struyf's motion to suppress (Id. at 124) 11-06-80 Order (Record, vol. 4, at 11, 69) 11-06-80 FIRST HEARING ON MOTION TO SUPPRESS (Record, vol. 4, at 1-126) Williams 11-13-80 Motion to transfer (Record, vol. 2, at 141) 12-15-80 Order (Id. at 145 Struyf 12-18-80 Additional Memorandum in Support of Motion to Suppress (Id. at 146) Gidus 12-23-80 Order to Respond (Id. at 153) 01-28-81 SECOND HEARING ON MOTION TO SUPPRESS 02-03-81 Order on motions (Id. at 164) 9 Struyf 02-13-81 Motion for discharge (Id. at 180) Williams 02-18-81 Petition for review (Id. at 184) 02-27-81 Order (Id. at 203) 3 Struyf 03-03-81 Trial --------------------------------------------------------- Total elapsed time 31 15 Because the amount of includable time was well within the seventy-day limit, we reject Struyf's claim that he was denied his right to a speedy trial under the Act. 16 Concerning a defendant's constitutional right to a speedy trial, the court applies "a balancing test in which the conduct of the prosecution and that of the defendant are weighed." United States v. Varella, 692 F.2d 1352, 1359 (11th Cir.1982). 17 The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, outlined the factors to be considered: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertions of his right; and (4) the prejudice to the defendant. "The first prong of Barker, the length of the delay, is merely a threshold 'triggering mechanism.' The Court need not inquire into the other factors unless there has been a delay of such length as to be 'presumptively prejudicial.' " 18 Id. (quoting United States v. Edwards, 577 F.2d 883, 888 (5th Cir.1978)). 19 We hold that the seven month delay in this case was not "presumptively prejudicial" under the first prong of the Barker test. Accordingly, we need not inquire into the other factors. Cf. Varella, at 1359 and cases cited therein (concerning delay from the date of the arrest of, or service with a summons on, the defendant to the filing of the indictment or information). Thus, we deny Struyf's claim that he was denied his constitutional right to a speedy trial. 20 AFFIRMED. 1 Struyf and Williams, although codefendants, were tried and convicted separately. Struyf waived his right to a jury trial; Williams did not. Their cases were consolidated on appeal 2 Williams' trial took place in April 1981. Williams was arrested in July 1980 3 The government elicited from one witness on cross-examination that the witness could not be sure Williams had in fact spoken to Tharpe on the phone while appearing upset; Williams had only told the witness that Tharpe was the other party to the phone conversation 4 In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), we adopted as precedent decisions of the Unit B panel of the Former Fifth Circuit 5 The record is barren of any evidence that the government suggested to Tharpe that he approach Williams in particular 6 We recognize that Williams argues he was entrapped as a matter of law. The doctrine of entrapment as a matter of law did not survive the Supreme Court's decision in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). United States v. Rodriguez, 585 F.2d 1234, 1240 n. 5 (5th Cir.1978) 7 Of course we do not decide this question 8 Struyf entered into a stipulation with the government in which he waived trial by jury; codefendants Williams and one Gidus were tried before a jury

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LAWRENCE HOLUB, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-347 (RBW) ) EXECUTIVE OFFICE FOR ) UNITED STATES ATTORNEYS, ) UNITED STATES DEPARTMENT ) OF JUSTICE, and ) OFFICE OF INFORMATION ) AND PRIVACY, UNITED STATES ) DEPARTMENT OF JUSTICE, ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION Lawrence Holub, currently incarcerated at the Federal Correctional Institution in Glenville, West Viriginia and the pro se plaintiff in this civil suit, seeks declaratory and injunctive relief as well as compensatory and punitive damages against two components of the United States Department of Justice—the Executive Office for United States Attorneys and the Office of Information and Privacy—for allegedly “depriv[ing the p]laintiff of an impartial adjudication by withholding records, . . . and . . . fail[ing] to amend records[] concerning [the p]laintiff, . . . which [were], and are [being] us[ed, by the components] in making an adverse determination about [the p]laintiff,” Complaint (the “Compl.”) ¶ 4, in violation of his “civil rights, the Freedom of Information Act[,] 5 U.S.C. § 552 [(the “FOIA”)], and the Privacy Act[,] 5 U.S.C. § 552a,” Compl. ¶ 55. Currently before the Court is the plaintiff’s Motion for a Temporary Restraining Order and a Preliminary Injunction. After carefully considering the parties’ pleadings, the plaintiff’s motion, and all memoranda and exhibits relevant thereto,1 the Court concludes that it must deny the plaintiff’s motion. I. Background The plaintiff is a federal prisoner who is currently incarcerated at the Federal Correctional Institution in Glenville, West Virginia, id. ¶ 3, for committing drug trafficking offenses under 21 U.S.C. §§ 960(b)(3) and 841(b)(1)(C), id. ¶ 31. The plaintiff was convicted on July 20, 1994, by a jury in the United States District Court for the Central District of California. Id. ¶¶ 29, 31. The plaintiff was sentenced to two concurrent terms of imprisonment of 262 months. Id. ¶ 36. The plaintiff asserts that the sentence “was based, in pertinent part, upon the [court’s] acceptance of the United States Probation Office’s [(the “Probation Office”)] adverse determination that [the p]laintiff’s criminal history met the career offender provisions of § 4B1.1 of the [United States Sentencing Guidelines (the “Sentencing Guidelines”)].”2 Id. ¶ 37. The plaintiff contends that the Probation Office and the sentencing court’s adverse determination was erroneously based on two prior convictions of the plaintiff. Id. ¶¶ 37-39. In 1 In addition to the plaintiff’s Complaint and his Motion for a Temporary Restraining Order and a Preliminary Injunction (“Pl.’s TRO & PI Mot.”), the Court considered the following documents in rendering its decision: (1) the Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss and for Summary Judgment (the “Defs.’ Mem.”); (2) the Defendants’ Statement of Material Facts Not in Genuine Dispute (the “Defs.’ Facts”); (3) the Plaintiff’s Brief [and Memorandum of Points and Authorities] in Opposition to Defendants’ Motion to Dismiss and for Summary Judgment (the “Pl.’s Opp’n”); (4) the Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion to Dismiss and for Summary Judgment (the “Defs.’ Reply”); and (5) the Defendants’ Opposition to Plaintiff’s Motion for a Temporary Restraining Order and a Preliminary Injunction (the “Defs.’ TRO & PI Opp’n”). 2 Section 4B1.1(a) of the Sentencing Guidelines states the following: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Further, under Section 4A1.2(e)(1) of the Sentencing Guidelines, the career offender enhancement can only be applied if the sentences for the two prior felony convictions were “imposed within fifteen years of the defendant’s commencement of the instant offense . . . .” 2 this regard, the plaintiff represents that in September of 1974, he pled guilty to an armed robbery charge in the New Jersey Superior Court. Id. ¶ 8. Then, in June of 1975, the plaintiff, while serving the sentence he received for the 1974 conviction, was tried and convicted on another armed robbery charge also in the New Jersey Superior Court. Id. ¶ 10. The plaintiff alleges that he completed his sentence for the 1974 offense in August of 1978. See id. ¶ 18 (asserting that a New Jersey State Prison Classification Officer declared that the plaintiff “fully served” his 1974 sentence and terminated the sentence in August of 1978). Then, in November of 1979, the plaintiff was released on parole for the 1975 offense. Id. ¶ 19. In his complaint, the plaintiff asserts that the Probation Office and sentencing court wrongfully relied upon the 1974 conviction as a predicate offense under Section 4B1.1 of the Sentencing Guidelines because the sentence for his 1974 conviction ended more than fifteen years before he was indicted on the 1994 offense. Id. ¶ 39. The plaintiff argues that the Probation Office and sentencing court, in reaching its conclusion, erroneously interpreted N.J. Stat. Ann. § 2C:44-5(e)(2) (West 2005) to mean that his sentence for his 1974 conviction ended in November of 1979, rather than in August of 1978.3 Id. ¶ 28. He asserts that “had the . . . Probation Office[] and [sentencing court] not made that adverse determination[,] . . . [his] sentence would have been lessened to [arguably] . . . [thirty-seven] months of imprisonment.” Id. ¶ 39. The plaintiff thus invokes the FOIA and Privacy Act to “obtain and have amended the false, inaccurate, and incomplete records with regard to the . . . 1974 armed robbery conviction and sentence [that] the [d]efendants[] . . . are intentionally using in making their adverse determination that such conviction and sentence was a predicate offense for the career offender enhancement . . . .” Pl.’s Opp’n at 4. 3 N.J. Stat. Ann. § 2C:44-5(e)(2) states that “[w]hen terms of imprisonment run consecutively, the terms are added to arrive at an aggregate term to be served equal to the sum of all terms.” 3  The defendants have now filed a motion to dismiss or, in the alternative, for summary judgment. They argue that “the office most likely to have responsive records,” Defs.’ Mem. at 6, has “conducted an adequate search for records responsive to [the p]laintiff’s request but located no such records,” id. at 2. The defendants further argue that the plaintiff has failed to demonstrate that the records he now seeks even exist, but that in any event these documents are not subject to the accuracy and damages provisions of the Privacy Act. Id. at 9. In response, the plaintiff filed the instant motion for a temporary restraining order and preliminary injunction on September 14, 2009. Pl.’s TRO & PI Mot. at 1. The plaintiff also filed an opposition to the defendants’ motion to dismiss on September 18, 2009. Pl.’s Opp’n at 1. The plaintiff seeks to “prevent[] the use of the inaccurate and incomplete records” that he alleges are maintained by the plaintiff so that he “may then seek to obtain relief from the erroneous adverse determination.” Pl.’s TRO & PI Mot. at 3. The defendants respond that injunctive relief is not appropriate because the “[d]efendants are not ‘using’ the records requested by [the p]laintiff for any purpose whatsoever,” and that the defendants have conducted a thorough, but ultimately fruitless, search for the requested documents. Defs.’ TRO & PI Opp’n at 3. II. Standard of Review Temporary restraining orders and preliminary injunctions are “extraordinary remed[ies] that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (internal quotation and citation omitted). In deciding if injunctive relief should be granted, the Court “must examine . . . : (1) [whether] there is a substantial likelihood [the] plaintiff will succeed on the merits; (2) [whether the] plaintiff will be irreparably injured if an 4 injunction is not granted; (3) [whether] an injunction will substantially injure the other party; and (4) [whether] the public interest will be furthered by the injunction.” Ellipso, Inc. v. Mann, 480 F.3d 1153, 1157 (D.C. Cir. 2007) (internal quotation and citation omitted). The Court “must balance these factors, and if the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” Id. (internal quotation and citation omitted). “Despite this flexibility, though, a movant must demonstrate at least some injury for a preliminary injunction to issue, . . . for ‘the basis of injunctive relief in the federal courts has always been irreparable harm.’” Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974) (quotation omitted)) (further internal quotation omitted). “A movant’s failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit such relief.” Id. (citation omitted). Nevertheless, even if a district court concludes that a party seeking preliminary injunctive relief cannot demonstrate irreparable injury, the District of Columbia Circuit has instructed that it should address all of the factors set forth above because “[i]t is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with [Federal Rule of Civil Procedure 52].” Id. at 304-05. This rule requires a court considering an application for preliminary injunctive relief to “set forth the findings of fact and conclusions of law which constitute the grounds of its action.” Id. at 304. III. Legal Analysis Pursuant to Rule 52(a), this Court must assess the merit of the plaintiff’s request for injunctive relief as to each of the factors delineated above. As set forth more fully below, the 5 Court concludes that a balancing of these factors weighs against the entry of an injunction against the defendants. The plaintiff’s motion must therefore be denied. A. Likelihood of Success on the Merits “It is particularly important for the movant to demonstrate a substantial likelihood of success on the merits,” Hubbard v. United States, 496 F. Supp. 2d 194, 198 (D.D.C. 2007) (citation omitted), because “absent a substantial indication of likely success on the merits, there would be no justification for the [C]ourt’s intrusion into the ordinary processes of administration and judicial review,” id. (internal quotation and citation omitted). The plaintiff asserts three separate claims in his Complaint: (1) that the defendants have failed to conduct an adequate search for documents as required under the FOIA and Privacy Act, Pl.’s Opp’n at 8; Cf. Compl. ¶ 55; (2) that the defendants have failed to maintain accurate records about the plaintiff as required under the Privacy Act, Compl. ¶ 56; and (3) that the defendants have failed to amend or correct purported inaccuracies contained in these records in violation of the Privacy Act, id. ¶ 57.4 The Court agrees with the defendants that the plaintiff is highly unlikely to succeed on the merits of any of his claims for the following reasons. 1. The Plaintiff’s Inadequate Search Claim In resolving the plaintiff’s first claim, the Court must decide whether the defendants’ search for records responsive to the plaintiff’s FOIA request was adequate. An agency that is responding to a FOIA request must make “a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information 4 For each of these three claims, the plaintiff also asserts that the defendants have violated his “civil rights” in addition to the FOIA or Privacy Act. It is unclear what civil rights provisions—constitutional, statutory, or otherwise—the plaintiff believes were violated by the defendants’ alleged failure to maintain, produce, and amend the documents that are at issue in this matter. The Court, therefore, has no choice but to assume that the plaintiff’s reference to “civil rights” is nothing more than a general description of his right to access and have corrected publicly-available documents under either the FOIA or the Privacy Act; thus, the Court’s analysis of the plaintiff’s FOIA and Privacy Act claims will also apply to the plaintiff’s “civil rights” allegations. 6 requested.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (internal quotation and citation omitted); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (stating that “[an] agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents” (internal quotation and citation omitted)). While “an agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested,” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (internal quotation and citation omitted), the search “need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the [plaintiff’s] specific request,” Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986); see also id. at 953 (stating that “[i]t would be unreasonable to expect even the most exhaustive search to uncover every responsive file” (emphasis in original)). Thus, “[t]here is no requirement that an agency search every record system” in which responsive documents might conceivably be found. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Rather, the agency must demonstrate the adequacy of its search by providing a “reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched.” Id. If the agency’s affidavit suffices to establish the adequacy of its efforts, then “the burden is on [the plaintiff] to rebut [the defendant’s] evidence by a showing that the search was not conducted in good faith. This can be done either by contradicting the defendant’s account of the search procedure or by raising evidence of the defendant’s bad faith.” Moore v. Aspin, 916 F. Supp. 32, 35-36 (D.D.C. 1996) (citing Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383-84 (8th Cir. 1985)). “Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other 7 documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation and citation omitted). Here, the defendants have submitted a declaration from John F. Boseker, an Attorney Advisor in the Executive Office for United States Attorneys (the “EOUSA”) at the United States Department of Justice. See Defs.’ Mem., Declaration of John F. Boseker (the “Boseker Decl.”) ¶ 1. Boseker explains that the EOUSA forwarded the plaintiff’s request to the United States Attorney’s Office for the Central District of California (the “USAO/CDCA”) because that office was the one “most likely to have records responsive to [the p]laintiff’s [FOIA and Privacy Act] request[s] because each United States Attorney’s Office maintains the case files for criminal matters prosecuted by that office.”5 Id. ¶ 13. The EOUSA also notified the plaintiff of what had occurred and explained that the search could take anywhere from twenty days to nine months to complete, and that the EOUSA could assess fees for conducting its search. Id. at Ex. F. Presumably to avoid costs, the plaintiff agreed to limit the EOUSA’s search to two hours, and to limit the processing of records to 100 pages. Id. ¶ 12. After agreeing to the parameters of the search, the FOIA contact at the USAO/CDCA’s office conducted a systematic search for records. Id. ¶ 17. Specifically, the contact conducted a search of “[t]he computer case tracking systems, LIONS and PACER.” Id. These databases “have fields for retrieval of information based on a defendant’s name, USAO file jacket number, and district court case number.” Id. The contact also “searched card file indexes and the Federal Record center lists.” Id. “By letter dated July 1, 2009, [the] EOUSA notified [the plaintiff] that no records had been located in the USAO/CDCA.” Id. ¶ 16. After the initiation of this lawsuit, 5 The EOUSA originally rejected the plaintiff’s request to conduct a search on the grounds that the request was one for state records, which fall outside the reach of the FOIA and Privacy Act. Id. ¶ 7. The plaintiff appealed this determination, id. ¶ 8, and the Department of Justice Office of Information and Privacy remanded the appeal back to the EOUSA, id. ¶ 10, which then referred the request to the USAO/CDCA, id. 8 Boseker contacted Assistant United States Attorney Judith Heinz, id. ¶ 15, who “has been the AUSA assigned to all of [the plaintiff’s] post-conviction collateral challenges to his convictions . . . ,” id. ¶18.6 She searched several case files maintained by her office related to the plaintiff’s case, including his sentencing and post-conviction proceedings, and “saw no docket entry that gave her reason to believe that the requested state court sentencing-related records would be in these files.” Id. ¶ 18. Based on the foregoing, the Court finds that the defendants have provided a “reasonably detailed affidavit,” Oglesby, 920 F.2d at 68, that establishes the reasonableness of the defendants’ efforts to locate responsive documents. They conducted a thorough search of both electronic and non-electronic files located in the USAO/CDCA, the component most likely to possess the documents requested by the plaintiff. Further, the defendants’ extensive efforts were especially reasonable and adequate given the plaintiff’s agreement to limit the search to only two hours. The defendants’ affidavit is, therefore, accorded a presumption of good faith unless the plaintiff can “contradict[] the defendant’s account of the search procedure or by raising evidence of the defendant’s bad faith.” Moore, 916 F. Supp. at 35-36. The plaintiff has failed to rebut this presumption. While the plaintiff himself has filed a reasonably detailed affidavit explaining the steps he has taken to obtain relevant records from the government, his own exhaustive efforts are immaterial as to whether the agency has complied with its duty to conduct a reasonable search. Indeed, the Court is hard-pressed to find any factual challenge, whether in his forty-seven paragraph declaration or his other submissions to the Court, to the adequacy of the defendants’ search efforts. Rather, the plaintiff merely asserts that the search is inadequate because it did not 6 AUSA Heinz had also been contacted by the contact person in the USAO/CDCA when the initial search was conducted. Id. ¶ 17. 9 disclose documents that he believes the defendants are using. However, such “speculative claims about the existence . . . of . . . documents” are insufficient to rebut the good-faith presumption accorded to agency affidavits. SafeCard Servs., Inc., 926 F.2d at 1200. Having failed to proffer any evidence showing the inadequacy of the search procedure or the bad-faith of the defendants, the plaintiff’s likelihood of success on the merits of his inadequate search claim is virtually nonexistent and clearly not substantial. 2. The Plaintiff’s Failure to Maintain and Amend Records Claims Likewise, the plaintiff’s remaining claims have no chance of succeeding on the merits. The plaintiff argues that the defendants have violated the Privacy Act by failing “to maintain records concerning [the p]laintiff, which they are using in making an adverse determination against the [p]laintiff . . . .” Compl. ¶ 56 (emphasis added). The plaintiff relies on 5 U.S.C. § 552a(e)(5) as support for this position, which states in part that “[e]ach agency that maintains a system of records shall . . . maintain all records which are used by the agency in making any determination about any individual . . . .” The plaintiff seemingly fails to recognize, however, that the Privacy Act also allows the head of an agency to promulgate rules to exempt any system of records from Section 552a(e)(5), so long as the system of records is “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including . . . the activities of prosecutors . . . .” 5 U.S.C. § 552a(j)(2). The Department of Justice has issued such a rule through the promulgation of 28 C.F.R. § 16.81, which states that “criminal case files” are exempt from 5 U.S.C. § 552a(e)(5). Assuming that the records being sought by the plaintiff were used by the Department of Justice in his 1994 prosecution, these documents would likely be housed, if they even exist, in his 10 criminal case file. And, because that file is exempt from the accuracy and maintenance provisions of 5 U.S.C. § 552a(e)(5), the plaintiff cannot prevail on this claim. As for the plaintiff’s invocation of the Privacy Act to compel the defendants to amend his state records, this claim can be easily dismissed. The Privacy Act only applies to federal agency records; it “does not apply to state agencies.” United States v. Streich, 560 F.3d 926, 935 (9th Cir. 2009); see also Martinson v. Violent Drug Traffickers Project, Civil Action No. 95-2161 (CRR), 1996 WL 411590, at *2 (D.D.C. July 11, 1996) (“Both the FOIA and the Privacy Act are inapplicable to state agencies.”). Accordingly, because the plaintiff desires to have his state records amended, he must seek that relief from the appropriate state agency. The plaintiff’s third and final claim must, therefore, be rejected. In sum, the plaintiff has failed to establish any likelihood of success on the merits for any of his claims. The defendants have established that the agency has conducted an adequate and reasonable search for documents responsive to the plaintiff’s FOIA request. Furthermore, the plaintiff has not made out a colorable claim under the Privacy Act which entitles him to the requested relief, and because the plaintiff has no likelihood of success on the merits, the scales tip heavily in favor of denying the motion for immediate injunctive relief. See Hubbard, 496 F. Supp. 2d at 198 (observing that “there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review” absent a substantial indication of likely success on the merits (internal quotation and citation omitted)). B. Irreparable Injury The second prong of the Court’s required four-prong analysis asks whether the plaintiff can demonstrate that he will endure irreparable injury should his request for injunctive relief be denied. To satisfy this prong, the plaintiff’s injury “must be both certain and great; it must be 11 actual and not theoretical.” Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). The alleged injury must be “of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Id. (internal quotation and citations omitted) (emphasis in original). Finally, “the injury must be beyond remediation” to warrant injunctive relief. Chaplaincy of Full Gospel Churches, 454 F.3d at 297. The evidence adduced by the plaintiff in support of his motion does not meet this “high standard for irreparable injury.” Id. While the plaintiff alleges many times over that the defendants are “using” purportedly erroneous records to his detriment, see, e.g., Compl. ¶ 55, the plaintiff fails to describe how or when these documents are going to be used in the imminent future, let alone whether these documents are going to be used in a way that presents the threat of “certain and great” injury to the plaintiff. Wisc. Gas Co., 758 F.2d at 674. The only purported harmful use alleged by the plaintiff is the one that took place almost fourteen years ago—when the defendants, Probation Office, and sentencing court allegedly relied upon these documents during the plaintiff’s 1994 prosecution. Even assuming that the plaintiff is correct that the sentencing court imposed an erroneous sentence fourteen years ago, such grievances are not resolved through the injunction process. Rather, the plaintiff must resort to the same remedies available to all others similarly situated—the federal criminal appeal or post-conviction processes. The plaintiff has submitted no evidence whatsoever showing that he will suffer imminent harm if his motion for injunctive relief is not granted. Based on the foregoing, this factor weighs heavily in favor of denying the motion for a preliminary injunction. 12 C. Harm to the Defendants and Other Parties The third factor for the Court to consider in weighing the merits of the plaintiff’s renewed motion for injunctive relief is the extent to which an injunction would “substantially injure” the defendant and other parties. CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). This factor weighs in favor of the plaintiff, albeit in an ironic fashion. After all, there is no evidence that the defendants are currently using or planning to use the documents being sought after by the plaintiff. Thus, an order by the Court enjoining the defendants from using these documents would, in essence, have no practical consequences for the defendants or anyone else for that matter. Therefore, because neither the defendants nor anyone else would be harmed by entering an injunction, the Court finds that this factor weighs in favor of the plaintiff. D. The Public Interest Finally, the public interest would not be served if the plaintiff’s request for injunctive relief were granted for several reasons. First, “it is in the public interest to deny injunctive relief when the relief is not likely deserved under law.” Hubbard, 496 F. Supp. 2d at 203 (quoting Qualls v. Rumsfeld, 357 F. Supp. 2d 274, 287 (D.D.C. 2005)); see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998) (“The final preliminary injunction factor, the public interest, . . . is inextricably linked with the merits of the case.”). As the Court has explained in some detail above, the plaintiff will almost certainly not succeed on the merits of his case. See supra Part III.A. Second, “[t]he usual role of a preliminary injunction is to preserve the status quo pending the outcome of litigation.” Cobell v. Kempthorne, 455 F.3d 301, 314 (D.C. Cir. 2006) (quotation omitted). Here, the plaintiff has not asserted that the status quo is at all threatened, for again, there is no allegation of any imminent action by the defendants with regards to the purported 13 erroneous documents that the plaintiff seeks to have produced and amended. Thus, this factor also weighs in favor of denying the plaintiff’s motion for a preliminary injunction. E. Balancing of the Factors In analyzing the four factors discussed above, it is evident to the Court that the plaintiff has not demonstrated why he is entitled to immediate injunctive relief. The two most considerable factors in the preliminary injunction analysis—the plaintiff’s likelihood of success on the merits and the threat of irreparable harm to the plaintiff—weigh heavily in favor of the defendants. Furthermore, the Court would not be serving the public interest by issuing a preliminary injunction. Thus, balancing these factors leads the Court to the conclusion that the plaintiff’s motion for injunctive relief must be denied. IV. Conclusion “It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, at 129-30 (2d ed. 1995)) (emphasis supplied and footnotes omitted by the Supreme Court in Mazurek). The plaintiff in this case has not carried his heavy burden of proving that he is entitled to this extraordinary and drastic remedy, and his motion for injunctive relief must therefore be denied. SO ORDERED this 12th day of October, 2009.7 REGGIE B. WALTON United States District Judge 7 The Court issued an Order on October 5, 2009 consistent with this Memorandum Opinion. 14 

FILED NOT FOR PUBLICATION MAR 28 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT PAULO ARTURO OROZCO-FUENTES, No. 08-71033 Petitioner, Agency No. A070-929-926 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2011 ** Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges. Paulo Arturo Orozco-Fuentes, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings and review its legal conclusions de novo. Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008). We deny the petition for review. Orozco-Fuentes testified that he resisted the guerrillas’ and Guatemalan army’s attempts to recruit him. Substantial evidence supports the IJ’s denial of asylum because Orozco-Fuentes failed to establish past persecution or a well- founded fear of future persecution on account of a protected ground. See Elias- Zacarias v. INS, 502 U.S. 478, 481-82 (1992) (forced recruitment by guerrillas, without more, does not amount to persecution); Pedro-Mateo v. INS, 224 F.3d 1147, 1150-51 (9th Cir. 2000) (attempts by military and guerillas to recruit Guatemalan not persecution absent evidence of discriminatory purpose). We lack jurisdiction to consider Orozco-Fuentes’ request for humanitarian relief because he did not raise this claim to the IJ or BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). Because Orozco-Fuentes failed to establish his eligibility for asylum, he necessarily fails to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). 08-71033  Finally, substantial evidence supports the IJ’s denial of CAT relief because Orozco-Fuentes failed to establish it is more likely than not he will be tortured if returned to Guatemala. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005). PETITION FOR REVIEW DENIED. 08-71033 

765 F.Supp. 39 (1991) UNITED STATES of America v. ONE PARCEL OF PROPERTY LOCATED AT 101 KIMBERLY AVENUE, NEW HAVEN, CONNECTICUT, with All Appurtenances and Attachments Thereon [Claimants: Lydia Rivera, Connecticut Housing Finance Authority]. Civ. No. N-89-192 (JAC). United States District Court, D. Connecticut. May 10, 1991. Carl J. Schuman, U.S. Atty.'s Office, Hartford, Conn., for plaintiff. Timothy P. Pothin, New Haven, Conn., for claimant Lydia Rivera. RULING ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT JOSÉ A. CABRANES, District Judge: On April 24, 1989, the United States filed a verified complaint of forfeiture alleging that the defendant property was used or intended to be used to facilitate the distribution of illegal drugs in violation of 21 U.S.C. § 881(a)(7).[1] Lydia Rivera and the Connecticut Housing Finance Authority ("CHFA") filed claims. On March 21, 1990, pursuant to a Stipulation for Compromise Settlement (filed Mar. 20, 1990) ("Stipulation"), this court entered a Decree of Forfeiture ("Decree"). The Decree and Stipulation *40 called for the United States to recognize and pay the claim of CHFA and then to pay claimant Rivera fifty percent of the remaining proceeds of the sale. The Stipulation also provided that claimant Rivera could remain in the defendant property until ten days before any closing on the property, subject to the discretion of the United States Marshal. On March 20, 1991, the government moved for relief from judgment on the grounds that it had obtained newly discovered evidence and that the property had not yet been sold. On March 25, 1991, the Court granted the motion, vacated the Decree, and relieved the government from the terms of the Stipulation. Although the government adheres to its original intention to recognize and pay the claim of CHFA, see Memorandum of Law in Support of Motion for Summary Judgment ("Government's Memorandum") at 2, the government now moves for summary judgment against claimant Rivera. For the reasons stated below, the government's Motion for Summary Judgment (filed Apr. 8, 1991) is granted. FACTS The relevant facts are apparently undisputed — indeed, claimant Rivera did not submit a statement of material facts in dispute as required by Rule 9(c)2 of the Local Rules of Civil Procedure (D.Conn.)[2] and suggests no dispute as to the pertinent facts in her Objection to Motion for Summary Judgment (filed Apr. 22, 1991) ("Claimant's Objection"). Accordingly, pursuant to Rule 9(a)1 of the Local Rules of Civil Procedure (D.Conn.),[3] the facts set forth in the government's Statement of Material Facts (filed Apr. 8, 1991) ("Undisputed Facts") are deemed admitted. In August 1988, officers of the New Haven Police Department and the Statewide Narcotics Task Force began to receive information that Julio Rivera, the son of claimant Rivera, was using the defendant property to conduct a kilogram-quantity cocaine and heroin trafficking "operation" in the New Haven area. Undisputed Facts at 1. Information from police surveillance and confidential informants revealed, among other things, that Julio Rivera would leave from and return to the defendant property when traveling to New York City to purchase large quantities of narcotics. Id. Additionally, according to information obtained through a pen register and court-ordered wiretap, Julio Rivera and members of his organization would use the telephone at the defendant property to make drug-related phone calls. Id. at 2. Informants told police that Julio Rivera would send the cash proceeds of his narcotics operation to Puerto Rico. Id. According to one informant, Julio Rivera had his mother (claimant Rivera) — who is the record owner of the defendant property — along with other family members, transport the money. Id. In an April 19, 1989, wiretapped telephone conversation between claimant Rivera and Julio Rivera, Julio told his mother: "Everything is alright [sic], I've been picking up this week[.] I've been picking up." Id. And in a subsequent conversation, he told her that he was being watched and needed to take a vacation. Id. *41 As of November 1988, Julio Rivera had purchased a 1986 Firebird, a 1986 Corvette, and a 1988 Lincoln Continental, even though, according to Connecticut Department of Labor records, he had not been gainfully or regularly employed during the previous five years. Id. On April 24, 1989, police obtained a state search warrant for the defendant property and seized from it three bags of marijuana, one bag of cocaine, a scale of the type commonly used to weigh narcotics, a rubber stamp of the type commonly used to stamp narcotics packages, cut straws, a vial, razor blades, four handguns, one shotgun, and assorted ammunition. Id. at 2-3. Julio Rivera was subsequently charged by the United States with conspiring to distribute cocaine from August 1988 to May 1989. Id. at 3. On December 8, 1989, Rivera pleaded guilty in federal court to the charge, and on September 13, 1990, he received a sentence of imprisonment for a term of one hundred fifty-one months. Id. Julio Rivera had been previously convicted of third-degree forgery in 1987 and of carrying a dangerous weapon and possession of narcotics in November 1988. Id. In February 1991, New Haven police received information from an informant about continued heroin distribution at the defendant property. Id. Police surveillance in February confirmed the presence of a level of pedestrian traffic at the defendant property consistent with drug trafficking. Id. In March 1991, a confidential informant purchased a packet of heroin from claimant Rivera at the defendant property and informed the police that claimant Rivera was living on the second floor of the house and was assisting the operation headed by her daughter Nancy Rivera. Id. Also in March 1991, a confidential informant performed a "controlled buy" of heroin from the defendant property and police observed at least six other transactions occur there. Id. at 3-4. On the basis of that information, police obtained a state search warrant on March 8, 1991 for the defendant property. Id. at 4. The police seized, among other things, seventy white glassine packets of heroin. Id. Police observed claimant Rivera, who was present at the time of the search, fleeing from the first floor via the stairwell to the second floor, calling out and apparently warning others that "the police are coming." Id. Police also observed another person attempting to flush bundles of heroin down the toilet on the second floor. Id. Claimant Rivera was arrested for possession of narcotics, possession with intent to sell, conspiracy to possess, and, subsequently, criminal impersonation. Id. DISCUSSION Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). "[T]he mere existence of some allegedly factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Finally, "`mere conclusory allegations or denials'" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Quinn v. Syracuse *42 Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). In a forfeiture action such as this one, brought pursuant to 21 U.S.C. § 881(a)(7), the government must prove that the property in question was "used, or intended to be used, in any manner or part, to commit, or facilitate the commission of, a violation of this title punishable by more than one year's imprisonment." 21 U.S.C. § 881(a)(7). The government's initial burden is to demonstrate probable cause. See 19 U.S.C. § 1615;[4]see also 21 U.S.C. § 881(d) (incorporating title 19 procedures in title 21 actions). This burden applies both to trial and to summary judgment proceedings, because a summary judgment motion implicates the same evidentiary burden of proof that would apply at trial. See Liberty Lobby, Inc., 477 U.S. at 252, 254, 106 S.Ct. at 2512, 2513; United States v. Premises and Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1267 (2d Cir. 1989) ("South Livonia Road"). The government may meet its initial burden on the basis of hearsay evidence. Id. at 1267-68. Once the government has made its probable cause showing, the burden shifts to the claimant to prove by a preponderance of the evidence either that the property was not used unlawfully or that the illegal use was without the claimant's knowledge or consent. Id. This burden, as well, applies both at trial and to summary judgment proceedings. See Liberty Lobby, 477 U.S. at 252, 254, 106 S.Ct. at 2512, 2513; South Livonia Road, 889 F.2d at 1267. In this case, there is no dispute that the defendant property was used to distribute drugs and, thus, that the government has made a sufficient showing of probable cause. However, claimant Rivera contends that summary judgment cannot be granted because she claims to be within the statutorily created exemption for innocent ownership.[5] Claimant's Objection at 2-3. Claimant states in her affidavit that "[a]ny acts or omissions at 101 Kimberly Avenue that facilitated a violation of Title 21 of the United States Code were committed without [her] knowledge" or "consent." Affidavit of Lydia Rivera (attached to Claimant's Objection) at 2. According to claimant, therefore, "there is an issue as to her knowledge or consent and more specifically as to her state of mind." Claimant's Objection at 2-3. However, the claimant's affidavit does not specifically address, much less dispute, see Rule 56(e) of Fed.R.Civ.P., any of the government's evidence that the claimant was aware of Julio Rivera's criminal record and extravagant lifestyle; that the claimant and Julio had telephone conversations that referred to the drug trade; that the claimant assisted in laundering drug money to Puerto Rico; that the claimant sold heroin from the defendant property to an informant; that the claimant was living in the defendant property at the time of other observed transactions and "controlled buys" and at the time of the seizure of seventy packets of heroin from the property on March 8, 1991; and that the claimant attempted to shield herself and others from police detection on March 8, 1991. The claimant's position appears to be that the mere assertion of an innocent owner defense and the submission in an affidavit of general denials of the government's evidence suffice to create a factual dispute. That is not the law. As a general matter, Rule 56(e) provides that "an adverse party may not rest upon the mere allegations or denials of the adverse party's response." Our Court of Appeals, in United States v. Property Located at 15 Black Ledge Drive, 897 F.2d 97 (2d Cir.1990) ("Black Ledge"), has held that a claimant's affidavit containing only conclusory denials of knowledge of drug activity does not create a factual issue of innocent ownership sufficient *43 to deny the government's summary judgment motion, especially when, as in the instant case, the government presents strong evidence of knowledge. Id. at 101-03. The claimant in Black Ledge, who was the wife of a drug dealer, submitted an affidavit alleging that she had "no knowledge whatsoever" of any drug possession, storage, or trafficking by her husband in their home and that her husband "never consumed, displayed, or spoke of narcotics or drug related materials in [her] presence." Id. at 99. The court in Black Ledge concluded that "more detailed factual substance in support of her claim of ignorance was required" to defeat summary judgment. Id. at 102 (quotation marks omitted). The same is true in the instant case, especially in light of the fact that the government's evidence suggests that the claimant here was more involved in drug activity than was the claimant in Black Ledge. Claimant argues that some of the government's evidence that establishes claimant's knowledge consists of hearsay informant information. See Claimant's Objection at 3. Assuming only for the argument that the informant information — although clearly admissible on the issue of probable cause, Black Ledge, 897 F.2d at 102 — is not admissible on the issue of claimant's innocent ownership defense, claimant does not address the fact that much of the evidence (including, for example, evidence of claimant's presence during the police search of defendant property on March 8, 1991) consists of direct observations of police officers. Undisputed Facts at 4. In any event, in Black Ledge the Court of Appeals ruled that the fact that the government relies in part on informant information is not dispositive where, as in the instant case, the claimant does not present a genuine issue of material fact. Id. at 102; see also Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (while caution should be exercised in granting summary judgment where state of mind is an issue, "the existence of undisputed facts can provide an adequate basis" for summary judgment). CONCLUSION For the reasons stated above, the government's motion for summary judgment is GRANTED. The government shall submit a proposed form of order by May 16, 1991 to serve as the decree of forfeiture. It is so ORDERED. NOTES [1] The statute provides in pertinent part that the following shall be subject to forfeiture to the United States: All real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. 21 U.S.C. § 881(a)(7) (emphasis added). [2] Rule 9(c)2 provides as follows: "The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." [3] Rule 9(c)1 provides as follows: Upon motion for summary judgment there shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. All material[] facts set forth in said statement will be deemed to be admitted unless controverted by the statement required to be served by the opposing party in accordance with Rule 9(c)2. [4] The statute provides in pertinent part as follows: In all suits or actions ... brought for the forfeiture of any vessel ..., where the property is claimed by any person, the burden of proof shall lie upon such claimant ...: Provided, That probable cause shall be first shown for the institution of such suit or action, to be judged of by the court.... 19 U.S.C. § 1615 (emphasis in original). [5] See supra note 1.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1612 CLEVEN LEWIS ROBERSON, Plaintiff – Appellant, v. PAUL T. GRAZIANO, Executive Director, Housing Authority of Baltimore City, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:09-cv-03038-WDQ) Submitted: February 10, 2011 Decided: February 16, 2011 Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Cleven Lewis Roberson, Appellant Pro Se. Carrie Blackburn Riley, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Cleven Lewis Roberson appeals the district court’s order dismissing his civil action under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Roberson v. Graziano, No. 1:09-cv-03038-WDQ (D. Md. filed May 21, 2010 & entered May 24, 2010). 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 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT RONNIE WEBB, Plaintiff-Appellant, v. No. 99-1549 KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Terrence W. Boyle, Chief District Judge. (CA-97-56-2-BO) Submitted: September 21, 1999 Decided: October 6, 1999 Before MURNAGHAN, MICHAEL, and TRAXLER, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Michael B. Sosna, Henderson, North Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Barbara D. Kocher, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Ronnie Webb appeals an order of the district court granting judg- ment on the pleadings to the Commissioner of Social Security in Webb's suit challenging denial of his claims for social security dis- ability benefits (DIB) and supplemental security income (SSI). We affirm. Webb was born June 10, 1966. He has a twelfth-grade education and a ten-year work history. His longest and most recent employment was as a painter at a shipyard. He has not worked, however, since September 27, 1994. On that date, he was admitted to the hospital with complaints of shortness of breath and edema. A chest x-ray revealed that he was suffering from dilated cardiomyopathy with con- gestive heart failure, and an echocardiogram calculated his ejection fraction1 as only about 20%. His blood pressure was also elevated. In a few days, his most severe symptoms had abated. Upon his dis- charge, he was advised to stop smoking and to stop drinking alcohol. The discharge diagnosis by the attending physician, Dr. Gerardo Maradiaga, was "Dilated cardiomyopathy, probably alcohol induced." A consulting cardiologist, Dr. Jose Antony, stated that Webb's absti- nence from alcohol was "mandatory," and he should be reevaluated in three months to see if there had been improvement. For the time being, Dr. Antony felt that Webb was disabled from gainful employ- ment. By December 1994, Webb was doing much better. An echocardio- _________________________________________________________________ 1 "Ejection fraction" is a measure of the efficiency of the ventricles. It is "the proportion of the volume of blood in the ventricles at the end of diastole that is ejected during systole[.]" Dorland's Illustrated Medical Dictionary 660 (28th ed. 1994). Its normal range is 57-73%, with lower values indicative of ventricular dysfunction. Id. 2 gram obtained on December 21 showed that his left ventricle had become smaller and the ejection fraction, while still abnormally low, had improved to about 40%. Three themes pervade the medical record from January 1995 through the date of the hearing. First, Webb's cardiomyopathy was relatively stable (with ejection fractions ranging from 35% to 45%) and asymptomatic. Second, because he often ran out of his medica- tions and could not afford refills, he continued to suffer from hyper- tension. Finally, though there is no evidence that he drank heavily, he did not fully abstain from alcohol. Webb filed claims for DIB and SSI on April 5, 1995, alleging dis- ability since September 27, 1994. The claims were denied initially and on reconsideration. Webb requested a hearing before an ALJ. The hearing was held on June 18, 1996. Though a good deal of documen- tary evidence was received, Webb was the only testifying witness. Webb testified that he occasionally had shortness of breath, most recently two weeks before the hearing. He could bring on this symp- tom by standing for three or four hours. He felt tired and rested three hours a day. On a typical day, he walked a few blocks around his neighborhood, and he was able to do light household chores like dust- ing. He had recently been married, and his wife did many things he used to do for himself. He acknowledged that his doctor had told him that drinking would kill him, and though he did"pretty good" at stay- ing away from alcohol, he did not do so entirely. The ALJ denied benefits. He found that Webb has a severe impair- ment, cardiomyopathy, and also abuses alcohol. He concluded that if Webb's alcohol abuse is not taken into account, Webb retains the functional capacity to do the full range of sedentary work. The Appeals Council affirmed. Webb then filed this suit against the Com- missioner in district court. On cross-motions for judgment on the pleadings, the court upheld the denial of benefits. Webb appeals. The standard of review is familiar. We must affirm the Commis- sioner's decision if it is in accordance with law and is supported by substantial evidence. See 42 U.S.C.A. § 405(g) (West Supp. 1999); Richardson v. Perales, 402 U.S. 389 (1971)."Substantial evidence" 3 is evidence of sufficient quality and quantity as"a reasonable mind might accept as adequate to support a conclusion." Consolidated Edi- son Co. v. NLRB, 305 U.S. 197, 229 (1938). It is more than a scintilla, but less than a preponderance of the evidence. See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). If addiction to drugs or alcohol is a "contributing factor material to the Commissioner's determination that [an] individual is disabled," then SSI and DIB are not available. 42 U.S.C.A.§§ 423(d)(2)(C), 1382c(a)(3)(J) (West Supp. 1999). Webb argues that the ALJ misap- plied this provision. According to Webb, this exclusion applies only when a claimant is disabled but would not be if he stopped using alco- hol or drugs. Thus, it is irrelevant that Webb's cardiomyopathy may have been caused by past alcohol abuse, because there is no evidence that the condition would go away if he refrained from future use or abuse. We conclude Webb is fighting a straw man on this point; the ALJ interpreted the statute just as he urges. The ALJ found that Webb's cardiomyopathy was a severe impairment and that it limited Webb to sedentary work. Had the ALJ believed that the cardiomyopathy was within the statute's definition of "alcohol addiction," he would have found no severe impairment at all.2 Next, Webb argues that there is not substantial evidence that he continues to abuse alcohol, as found by the ALJ. This alleged error is of no moment, because the finding is superfluous, given that the impairment found--i.e., cardiomyopathy--is not disabling. Finally, Webb asserts that the ALJ erred by finding that his hyper- tension is not "severe." "Severe" is a term of art in disability law. The ALJ's finding does not mean that Webb's hypertension is not deserv- ing of concern from a medical standpoint; instead, it means that _________________________________________________________________ 2 In a corollary argument, Webb asserts that the ALJ failed to give proper weight to an opinion of his treating physician submitted after the hearing. This opinion described Webb's cardiomyopathy as "idiopathic" --i.e., of unknown cause--with alcohol as simply"one of the possible causes." Again, the severity, rather then the cause, of this impairment was the issue before the ALJ. 4 hypertension has no present effect on his ability to work. See 20 C.F.R. §§ 404.1520(c), 416.920(c) (1998). The denial of benefits is in accordance with law and is supported by substantial evidence. The judgment of the district court is affirmed. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) DAVID CANTU, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 11-541 (RBW) ) THE UNITED STATES OF AMERICA, ) et al., ) ) Defendants. ) ____________________________________) MEMORANDUM OPINION The plaintiffs in this putative class action are Hispanic farmers who allege that the defendants—the United States, the United States Department of Justice, the United States Department of Agriculture (“USDA”), and the heads of those agencies—have violated their constitutional rights to due process and equal protection by offering to settle the plaintiffs’ discrimination claims on terms less favorable to the settlements provided to similarly-situated African-American and Native American farmers. See First Amended Class Action Complaint for Declaratory, Injunctive, and Other Relief (“Am. Compl.”) ¶¶ 1-2. Currently before the Court is the defendants’ motion to dismiss. Upon careful consideration of the parties’ submissions, 1 the Court concludes for the following reasons that the defendants’ motion must be granted. 2 1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: the Memorandum in Support of Defendants’ Motion to Dismiss First Amended Class Action Complaint (“Defs.’ Mem.”); the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss First Amended Class Action Complaint (“Pls.’ Opp’n”); and the Reply in Support of Defendants’ Motion to Dismiss First Amended Class Action Complaint (“Defs.’ Reply”). 2 The Court is contemporaneously issuing on this date a Memorandum Opinion in Love v. Vilsack, No. 00-2502 (D.D.C.), which addresses claims of female farmers similar to those asserted in this case.  I. BACKGROUND Between 1997 and 2000, African-American, Native American, Hispanic, and female farmers filed four similar class action lawsuits alleging that the USDA “routinely engaged in the discrimination of individuals on the basis of race, ethnicity, or gender in the administration of its farm benefit programs, and failed to investigate the claims of farmers who filed complaints based on such conduct with [the] USDA.” Am. Compl. ¶ 3; see Pigford v. Glickman, Nos. 97-1978, 98-1693 (D.D.C.) (“Pigford I”) (African-American farmers); Keepseagle v. Vilsack, No. 99- 03119 (D.D.C.) (Native American farmers); Garcia v. Vilsack, No. 00-2445 (D.D.C.) (Hispanic farmers); Love v. Vilsack, No. 00-2502 (D.D.C.) (female farmers). A brief overview of those cases is necessary to understand the plaintiffs’ claims in this action. On October 9, 1998, Judge Paul L. Friedman of this Court certified Pigford I as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) for purposes of liability. 3 Pigford v. Glickman, 182 F.R.D. 341, 352 (D.D.C. 1998). Judge Friedman later vacated his original class certification order on January 5, 1999, and certified a new class pursuant to Rule 23(b)(3). 4 Pigford v. Glickman, 185 F.R.D. 82, 92 (D.D.C. 1999). Following the Court’s class certification rulings, the parties in Pigford I negotiated a class-wide settlement, which Judge Friedman approved in a consent decree issued on April 14, 1999. Id. at 113. The Pigford I consent decree “did not provide for the automatic payment of damages to any plaintiff”; rather, “it established a non-judicial mechanism,” i.e., an administrative claims process, “by which each class member 3 Rule 23(b)(2) permits class certification where, among other things, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). 4 Rule 23(b)(3) permits class certification where, among other things, “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 2 would have an opportunity to demonstrate that he or she had been the victim of past discrimination by the USDA and therefore was entitled to compensatory damages.” In re Black Farmers Discrim. Litig., 856 F. Supp. 2d 1, 9 (D.D.C. 2011). The Pigford I consent decree imposed a deadline for African-American farmers to submit their claims for administrative adjudication, id. at 10, and many farmers tried, unsuccessfully, to file claim packages after the deadline expired, id. at 11. To address this problem, “Congress resurrected the claims of those who had unsuccessfully petitioned the Arbitrator for permission to submit late claim packages” by enacting “the Food, Conservation, and Energy Act of 2008.” Id. This Act provides that “[a]ny Pigford claimant who has not previously obtained a determination on the merits of a Pigford claim may, in a civil action brought in the United States District Court for the District of Columbia, obtain that determination.” Pub. L. 110–234, § 14012(b), 122 Stat. 923, 1448 (2008). After the Act became effective, thousands of African- American farmers filed suit in this Court. In re Black Farmers, 856 F. Supp. 2d at 13. Those cases are collectively known as Pigford II. Id. The parties in Pigford II reached a class-wide settlement agreement on February 18, 2010, id., which Judge Friedman approved, id. at 42. The settlement agreement largely maintained the administrative claims process utilized in Pigford I, with some modifications. Id. at 22. Keepseagle proceeded much like Pigford I, albeit at a different pace. Judge Emmet G. Sullivan of this Court certified that case as a class action pursuant to Rule 23(b)(2). See Keepseagle v. Veneman, No. 99-03119, 2001 WL 34676944, at *1 (D.D.C. Dec. 12, 2001). Nine years later, in 2010, the parties reached a class-wide settlement agreement, which Judge Sullivan approved. See Keepseagle v. Veneman, No. 99-03119, ECF No. 577 (D.D.C. Nov. 1, 2010) (order granting preliminary approval of settlement). The settlement agreement in 3 Keepseagle established an administrative claims process for Native American farmers that was similar, though not identical, to the process established in Pigford I. See Am. Compl. ¶ 49; Defs.’ Mem. at 4-5. Garcia and Love followed a different path. Judge James Robertson, a former member of this Court, denied the plaintiffs’ motions for class certification in both actions. 5 See Am. Compl. ¶¶ 38-39; Garcia v. Veneman, 224 F.R.D. 8 (D.D.C. 2004), aff’d and remanded sub nom. Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006); Love v. Veneman, 224 F.R.D. 240 (D.D.C. 2004), aff’d in part, remanded in part sub nom. Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006). And the defendants have not offered to settle the cases on a class basis pursuant to Rule 23, as they had in the Pigford and Keepseagle cases. See Am. Compl. ¶¶ 59-60. The defendants have, however, developed a different administrative claims process for Hispanic and female farmers. See id. ¶ 51; Love v. Vilsack, No. 00-2502, ECF No. 160 ¶ 88 (D.D.C.). This administrative claims process is the subject of the instant lawsuit. The plaintiffs instituted this putative class action on March 25, 2011. They are Hispanic farmers, some of whom are plaintiffs in Garcia, who allegedly “were subjected to, and continue to be subjected to, USDA discrimination in its farm benefit programs” and who “are potential claimants” under the defendants’ administrative claims process for Hispanic farmers. Am. Compl. ¶ 12. The plaintiffs assert that the defendants’ administrative claim process is “substantially different from and substantially less favorable than the settlements provided to African-American and Native American farmers” in the Pigford and Keepseagle cases. Id. ¶ 53. Claiming that this disparity “can only be explained on a racially discriminatory basis,” the plaintiffs allege that the administrative claims process violates “the equal protection and due 5 Upon Judge Robertson’s retirement from this Court, Garcia and Love were reassigned to the undersigned member of the Court. 4 process guaranteed by the Constitution of the United States and constitutes arbitrary and capricious and unlawful agency action under the [Administrative Procedure Act (“APA”)], 5 U.S.C. § 706(2)(A).” Id. By Order dated December 21, 2011, the Court stayed all proceedings in this case, finding it unripe for judicial review based on the interlocutory nature of the defendants’ administrative claims process at that time. ECF No. 27. Once the defendants finalized the administrative claims process, the plaintiffs, with leave of the Court, submitted an amended complaint. The defendants have now moved to dismiss that complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 6 II. STANDARD OF REVIEW Rule 12(b)(1) allows a party to move to dismiss “for lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402 6 Because the Court grants the defendants’ motion on jurisdictional grounds under Rule 12(b)(1), it does not consider the defendants’ arguments urging dismissal pursuant to Rule 12(b)(6). 5 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). III. ANALYSIS In moving to dismiss for lack of subject-matter jurisdiction, the defendants argue, among other things, that the plaintiffs lack standing to challenge the defendants’ administrative claims process. Defs.’ Mem. at 10. For the reasons that follow, the Court agrees. “Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘The irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2) causation, and (3) redressability.’” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2011) (citation omitted). “‘Thus, to establish standing, a litigant must demonstrate a personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct [that is] likely to be redressed by the requested relief.’” Id. (citation omitted). “The absence of any one of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010). The injury asserted by the plaintiffs is that the defendants’ administrative claims process “subjects them to unequal treatment as compared to other racial groups,” insofar as it “requires Hispanic claimants to prove additional factual elements and, in some cases, provide additional documentary evidence to obtain relief,” which “African[-]American and Native American farmers need not [provide].” Pls.’ Opp’n at 13. As redress for this alleged injury, the plaintiffs request two forms of judicial relief: (1) a declaratory judgment that the defendants’ actions 6 “violate the constitutional rights of [the p]laintiffs and constitute arbitrary and capricious and unlawful agency action under the APA,” and (2) a “permanent injunction” prohibiting the defendants from discriminating against Hispanic farmers in the settlement of their claims against the USDA and compelling the defendants “to provide [the p]laintiffs with a class settlement which includes a class for settlement purposes under Rule 23 of the Federal Rules of Civil Procedure in the Garcia case that is equivalent to that which [the d]efendants provided in the settlements with the African-American and Native American farmers.” Am. Compl. at 34-35. The parties’ standing arguments focus on whether the plaintiffs have satisfied the first element of Article III standing—injury-in-fact. According to the defendants, the plaintiffs “have suffered no harm whatsoever as a result of” the administrative claims process “because their participation in it is strictly optional, not mandatory.” Defs.’ Mem. at 11 (emphasis omitted). The plaintiffs respond that the defendants “cite[] no authority for the extraordinary proposition that civil rights plaintiffs lack standing to challenge discriminatory government programs unless those programs are mandatory,” and that this position is irreconcilable with “established equal protection jurisprudence.” Pls.’ Opp’n at 13. The Court need not address these arguments because, even assuming the plaintiffs have established a sufficient injury-in-fact, they have failed on the final element of the standing test— redressability. 7 To satisfy this element, a plaintiff must show in the first instance that the court is capable of granting the relief sought. See Newdow, 603 F.3d at 1010-11 (plaintiffs could not establish redressability because “[i]t [was] impossible for th[e] court to grant [their requested] relief”); Swan v. Clinton, 100 F.3d 973, 976 (D.C. Cir. 1996) (indicating that the 7 Because “[t]he federal courts are under an independent obligation to examine their own jurisdiction,” and because “standing ‘is perhaps the most important of [the jurisdictional] doctrines,’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)), the Court is not limited to the arguments raised in the parties’ briefs in evaluating whether the plaintiffs have Article III standing. 7 “‘redressability’ element of standing” entails the question of “whether a federal court has the power to grant [the plaintiff’s requested] relief”); Lozansky v. Obama, 841 F. Supp. 2d 124, 132 (D.D.C. 2012) (“Plaintiffs . . . lack standing because the Court cannot issue the requested writ of mandamus, and thus cannot redress the [claimed] injury.”). Here, the primary relief sought by the plaintiffs is an injunction compelling the defendants to settle with the plaintiffs on terms equivalent to the settlements in the Pigford and Keepseagle cases. See Am. Compl. at 35. But it is settled law that “[a] judge may not coerce a party into settling.” Gevas v. Ghosh, 566 F.3d 717, 719 (7th Cir. 2009); accord In re NLO, Inc., 5 F.3d 154, 157 (6th Cir. 1993); Newton v. A.C. & S., Inc., 918 F.2d 1121, 1128 (3d Cir. 1990); G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989) (en banc); In re Ashcroft, 888 F.2d 546, 547 (8th Cir. 1989) (per curiam); Kothe v. Smith, 771 F.2d 667, 669 (2d Cir. 1985); Del Rio v. Northern Blower Co., 574 F.2d 23, 26 (1st Cir. 1978); see also MacLeod v. D.C. Transit Sys., Inc., 283 F.2d 194, 195 n.1 (D.C. Cir. 1960) (indicating that a trial judge may “convey[] his views about [a] settlement [offer] to the litigants’ counsel . . . who [are] free to accept or reject the [j]udge’s views,” so long as the judge does not “in any way [bring] ‘pressure’ on the parties” to settle). Coercing parties to settle is not only beyond a federal court’s authority, but also is prohibited by the ethical rules that govern the conduct of federal judges. See Code of Conduct for United States Judges Cannon 3A(4) (Commentary) (“A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.”). And in cases, such as this one, “in which the United States is interested,” only designated government officials and agencies are “authorized to settle litigation.” United States v. LaCroix, 166 F.3d 921, 923 (7th Cir. 1999). Issuing the plaintiffs’ requested injunction compelling the government to make a specific settlement offer to 8 the plaintiffs would improperly “transfer the litigant’s authority to th[is] judge,” in violation of the Court’s duty to “respect th[e] decision[s] . . . made by those in the Executive Branch of government entitled to manage litigation.” Id. Because this Court is powerless to compel the defendants to settle with the plaintiffs in any particular manner or on any particular terms, it cannot grant the injunctive relief requested by the plaintiffs. The plaintiffs also seek a declaratory judgment that the defendants’ administrative claims process is unconstitutional and violative of the APA. See Am. Compl. at 34-35. While the Court has authority to grant such relief, see Declaratory Judgment Act, 28 U.S.C. § 2201 (2006); APA, 5 U.S.C. § 706(2), a question remains as to whether granting this relief would actually redress the plaintiffs’ alleged injury, see Newdow, 603 F.3d at 1011 (the plaintiffs’ “second redressability problem is that declaratory and injunctive relief against the defendants . . . would not prevent the claimed injury”). As previously noted, the plaintiffs’ claimed injury is the defendants’ denial of equal treatment to them in settling their discrimination claims, as compared to the settlement offers the defendants provided to similarly-situated African-American and Native American farmers. Pls.’ Opp’n at 13. The District of Columbia Circuit has recognized that there are “two remedial alternatives” to redress an equal protection injury such as the one asserted in this case: (1) wholesale invalidation of the government action, or (2) extension of the government benefit to those aggrieved by the exclusion. See Jacobs v. Barr, 959 F.2d 313, 317 (D.C. Cir. 1992) (quoting Heckler v. Matthews, 465 U.S. 728, 738-39 (1984)). Neither type of relief would be afforded to the plaintiffs by a ruling holding the defendants’ administrative claims process in this case unlawful and setting it aside. Indeed, such a ruling would not (and could not) invalidate the settlement offers provided by the defendants to African-American and Native American farmers, nor would it (or could it) compel the defendants, for the reasons set 9 forth above, to make an equivalent settlement offer to the plaintiffs. In other words, it would not provide either of the two forms of relief that would redress the plaintiffs’ alleged equal protection injury. See id. The ruling would merely place the plaintiffs in the position they were in prior to the settlement offer made by the defendants. Thus, the plaintiffs’ requested declaratory relief would not redress the injury they claim. IV. CONCLUSION For the foregoing reasons, the Court concludes that the plaintiffs have failed to satisfy the redressability element of Article III standing. Accordingly, the defendants’ motion to dismiss for lack of subject-matter jurisdiction is granted. SO ORDERED this 11th day of December, 2012. 8 REGGIE B. WALTON United States District Judge 8 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion. 10 

613 F.Supp. 48 (1985) SECURITIES AND EXCHANGE COMMISSION, Petitioner, v. David P. WHITMAN and Lowell R. Allen, Respondents. Misc. No. 85-0083. United States District Court, District of Columbia. April 15, 1985. Alexia Morrison, Joseph Goldstein, William Donnelly, Thomas Karol, S.E.C., Washington, D.C., for petitioner. *49 Philip A. Lacovara, Geoffrey P. Aronow, William L. Webber, Hughes, Hubbard & Reed, Washington, D.C., John S. Martin, Jr., Catherine Samuels, Schulte, Roth & Zabel, New York City, for respondents. ORDER JOYCE HENS GREEN, District Judge. Before the Court is the application of the Securities and Exchange Commission ("SEC" or "the Commission") for an Order Requiring Obedience to Subpoenae Duces Tecum, and respondents' opposition thereto. The underlying subpoenae were directed to respondents David P. Whitman and Lowell R. Allen of the certified public accounting firm of Coopers & Lybrand ("C & L") in connection with an SEC Enforcement Division private investigation into the trading of the securities of Anacorp, Inc., a client of C & L. Respondents Whitman and Allen are, respectively, the audit manager and audit partner responsible for an audit of Anacorp, Inc. by C & L. Both are willing to testify under oath before the Commission in the presence of their counsel and a nonlawyer accountant from C & L's General Counsel's Office, who would provide technical assistance to respondents' counsel on accounting and auditing issues. The sole issue presented herein is whether the Commission may refuse to permit a nonlawyer technical adviser to accompany a witness and his counsel during the actual taking of investigative testimony. Congress has expressly recognized that a witness subpoenaed to testify before an agency has a right to representation under the Administrative Procedure Act ("APA"): [a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented and advised by counsel, or, if permitted by the agency, by other qualified representative. 5 U.S.C. § 555(b). This subsection or the APA "does not grant or deny [a nonlawyer] the right to appear for or represent others" in an agency proceeding, id., but the witness' right to counsel is absolute. See SEC v. Csapo, 533 F.2d 7 (D.C.Cir.1976); see generally United States v. Weiner, 578 F.2d 757, 773 (9th Cir.1978), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). The issue presented here is not whether an agency must permit a nonlawyer to represent a subpoenaed witness, but whether counsel representing a witness may, in order to fully (and thereby adequately) serve his client, utilize the expertise of a technical adviser by his side at the agency proceedings. The Commission excludes nonlawyers from attending its investigative proceedings in any capacity under its own Rules of Practice. As pertinent, those rules provide that [a]ny person compelled to appear, or who appears by request or permission of the Commission, in person at [a] formal investigative proceeding may be accompanied, represented and advised by counsel, as defined in Rule 2(b) of the Commission's Rules of Practice. 17 C.F.R. § 203.7(b) ("Rule 7(b)"). Rule 2(b) of the Commissioner's Rules of Practice, 17 C.F.R. § 201.2(b), defines counsel as an attorney at law admitted to practice before the Supreme Court of the United States, or the Court of Appeals or the District Court of the United States for the District of Columbia. To the extent that Rule 7(b) and Rule 2(b) of the Commission's Rules of Practice impinge upon counsel's ability to adequately represent his client who has been called upon to testify, they cannot be upheld. Given the extraordinary complexity of matters raised in agency investigations in this modern day, counsel trained only in the law, no matter how skillful, may on occasion be less than fully equipped to serve the client in agency proceedings. Unless the lawyer can receive substantive guidance from an expert technician — in this case, an accountant — when he determines in his professional judgment that such assistance is essential, his client's absolute right to counsel during the proceedings would become substantially qualified. *50 The Securities and Exchange Commission's Rules of Practice here at issue were promulgated under section 555(b) of the APA, see Commission's Memorandum at 12, yet as applied in this case they effectively dilute the basic right afforded by Congress. Congress determined that a witness testifying before an agency cannot be denied the accompaniment, representation and advice of counsel, regardless of the nonadjudicatory nature of the proceeding. That determination reflects the lawmakers' understanding of potential perils to the witness which accompany the act of testifying,[1] and calls for the full potency of the right to counsel. The Commission itself is well aware of the limits on a lawyer's expertise: indeed, in the investigative proceedings here at issue, the agency's own counsel rely heavily on the SEC accounting staff not only to provide advice and assistance but also to pose the questions to the respondents. The Commission correctly states that nothing in the APA guarantees the respondent a parity of advantage, but a witness' established right to his counsel's representation and advice (not merely presence) at agency proceedings, see 5 U.S.C. § 555(b), calls for some means of narrowing the gap between his counsel's and the questioner's technical expertise. Granting permission to the witness' attorney to bring an expert of his own choosing to the agency proceedings as an extension of himself (as an assistant) is a simple and expedient way to give veritable meaning to the witness' right to counsel. Certainly, it is less disruptive and more reasonable than the Commission's current practice of allowing counsel to interrupt proceedings to consult with experts posted (with the agency's permission) just outside the door. Today's decision does not unduly erode the agency's power and authority to conduct its own proceedings with little intrusion. On those limited occasions when a technical adviser is deemed by the witness' attorney to be essential, the expert will serve as an adjunct to counsel. The attorney bears ultimate responsibility for the accountant's conduct, and the risk that the proceedings will be obstructed or somehow tainted is minimal. In addition, the attorney is charged with avoiding even a potential conflict of interest on the part of the accountant, who in this case is employed by the respondents' employer. With these provisos, it would be arbitrary and capricious to systematically deny a witness' counsel the assistance of a technical expert by his side in agency proceedings while his client testifies as to a subject matter beyond the able counsel's expertise. For the reasons stated above, it is by the Court this 15th day of April, 1985 ORDERED that the application of the SEC for an Order Requiring Obedience to Subpoenas Duces Tecum is denied insofar as the Commission would refuse to allow counsel for respondents to be accompanied and assisted at SEC investigative proceedings by a nonlawyer technical adviser with special expertise in accounting. NOTES [1] In this case, the Commission openly acknowledges that a witness' testimony may later be used against him in a variety of ways. See Exhs. A, B to Affidavit of John S. Martin, Jr.

265 F.2d 196 Thomas E. PROCTOR, 2nd, John Riker Proctor, Esther B. Proctor, Mary P. Case, Emma M. Rice, Geraldine M. Craig, Neil W. Rice, Hilda R. Ayer, Thomas E. P. Rice; and Thomas W. Reynolds, David Broude and Boston Safe Deposit and Trust Company, Trustees Under the Last Will and Testament of Thomas E. Proctor, Deceased, Appellants,v.SAGAMORE BIG GAME CLUB, The Sylvania Corporation, United Natural Gas Company, National Fuel Gas Company, Frank G. Altman, H. P. Boarts, F. E. Carroll, W. L. Carroll, A. J. Eisenhuth, H. U. Flickinger, John W. Flickinger, Bertha E. Jones Shearer, John Rummel, A. C. Thomas, William Walker, D. D. Flickinger, Antonia Johnson, Clyde K. Moore, George C. Schrecongost, R. L. Seger, L. E. Thomas and E. C. Wareham. No. 12715. United States Court of Appeals Third Circuit. Argued February 3, 1959. Decided March 24, 1959. Rehearing Denied April 27, 1959. 1 COPYRIGHT MATERIAL OMITTED Herbert R. Carroll, Pittsburgh, Pa. (John C. Youngman, Williamsport, Pa., John H. Cartwright, Ridgway, Pa., Evans, Ivory & Evans, James C. Evans, Pittsburgh, Pa., on the brief), for appellants. 2 J. Villard Frampton, Oil City, Pa. (H. P. Boarts, Kittanning, Pa., W. Pitt Gifford, Gifford, Graham, MacDonald & Illig, Erie, Pa., Frampton & Courtney, Oil City, Pa., on the brief), for defendants, appellees. 3 Before GOODRICH and STALEY, Circuit Judges, and STEEL, District Judge. 4 STEEL, District Judge. 5 This is an appeal from a summary judgment for defendants. 6 At stake is the ownership and right to possession of natural gas underlying unseated lands1 known as Warrant 5343 in Elk County, Pennsylvania. A discovery well completed in April 1953 and seven subsequent wells, the last of which was completed in September 1954, demonstrated that these lands had substantial value because of the existence of subsurface natural gas in commercial quantities. The present action followed. 7 Plaintiffs claim to be either the legal or equitable owners of the natural gas underlying and produced and sold from the lands. Defendants are rival claimants who are alleged to be trespassers. They comprise persons and corporations claiming ownership of the warrant with royalty rights in the gas, a lessee-producer, and a purchaser of the gas. Plaintiffs seek possessory, monetary and injunctive relief, and an adjudication that defendants hold the gas as trustees for plaintiffs. Plaintiffs made timely demand for a trial by jury.2 8 All parties have properly relied upon Pennsylvania law as dispositive of their rights, since the sole basis of jurisdiction of the District Court was diversity of citizenship. 9 In determining whether summary judgment for defendants was properly granted, we must accept as true all facts and inferences therefrom which tend to support plaintiffs' claim regardless of any denial thereof by defendants. It is not our province to resolve disputed questions of fact, but only to determine whether genuine issues of material fact exist. The Court below found, and we think correctly, that if all of the facts and inferences therefrom relied upon by plaintiffs were accepted as true, defendants were entitled to judgment as a matter of law. 10 Preliminarily, it is desirable to say a word about the record upon which our decision will be based. Many of plaintiffs' arguments pertaining to its equitable interest in the gas rest upon unsworn statements by plaintiffs' attorneys as to the contents of documents and the existence of facts detailed in Plaintiffs' Statement of Position and Plaintiffs' Reply to Defendants' Statement of Position. These were filed for use at a pre-trial conference at a time when a trial was in contemplation. These self-serving unverified statements of fact asserted by plaintiffs are not the type of proof which F.R.Civ.P. Rule 56 (c), 28 U.S.C. requires for the resolution of a motion for summary judgment. Nor are the unsworn statements concerning the contents of documents adequate under Rule 56(e). Nevertheless, it appears from the position of the defendants at pre-trial, the decision of the Court below, and the brief of the defendants in this Court, that the defendants, both in this Court and in the District Court, were willing to accept as true for the purpose of testing defendants' motion for summary judgment all of the factual statements contained in plaintiffs' statements of position.3 Accordingly, we shall likewise do so. 11 An itemization of each link in the chain of title through which the parties claim is not necessary. It is enough to say that plaintiffs base their title upon that of their deceased ancestor, Thomas E. Proctor, Sr., to whose rights, if any, they have succeeded. The title and other interests claimed by defendants derive through one G. W. Childs who purported to purchase Warrant 5343 at a tax sale in 1894 immediately prior to which Proctor was the owner. 12 To prevail, plaintiffs must first establish that Proctor's title, either legal or equitable, survived the tax sale. A plaintiff seeking to recover the possession of an estate in land must do so upon the strength of his own title, not upon the imperfections in the title of a defendant. Taylor v. Taylor, 1910, 228 Pa. 424, 77 A. 663; Zeller v. American International Corp., 1921, 271 Pa. 472, 114 A. 778; Henry v. Grove, 1947, 356 Pa. 541, 52 A.2d 451. Subsurface gas in place is an estate in land. F. H. Rockwell & Co. v. Warren County, 1910, 228 Pa. 430, 77 A. 665. 13 * On June 5, 1893 Proctor acquired title to Warrant 5343 from Bigler, et al. At the time the taxes for 1892 and 1893 had been assessed against the warrant as unseated lands, were unpaid, and constituted a lien upon the warrant. On June 11, 1894 the treasurer of Elk County sold the warrant for the 1892 taxes. G. W. Childs was the purchaser and he received a deed from the treasurer dated June 11, 1894. 14 The tax sale and the treasurer's deed, if valid, conferred upon Childs a fee simple title. Act of April 3, 1804, P.L. 517, 4 Sm.L. 201, § 2; White v. First National Bank of Emporium, D.C. M.D.Pa.1938, 24 F.Supp. 290, 293. This included not only the surface of the land but subsurface natural gas as well. See Powell v. Lantzy, 1896, 173 Pa. 543, 34 A. 450.4 On June 28, 1898 Childs assigned his tax deed to Elk Tanning Company. The claim of defendants rests upon the tax sale to Childs, the assignment of the tax deed to Elk Tanning Company, and subsequent conveyances and leases. 15 On October 1, 1894, three months after the tax sale, Proctor purported to convey the same warrant to Elk Tanning Company by a deed which reserved to himself and to his heirs and assigns, all of the natural gas in, upon or under the lands. Plaintiffs base their claim to the natural gas on the title which Proctor acquired from Bigler and on the reservation in Proctor's deed to Elk Tanning Company, even though the latter deed was not executed until three months after the delivery of the tax deed to Childs. Plaintiffs argue that the gas reservation in the Proctor deed was valid because the prior tax deed to Childs was invalid and hence Proctor's title was not divested thereby. The invalidity of the tax deed, plaintiffs say, was due to the failure of the treasurer to acknowledge the tax deed in open court as was required by Section 2 of the Act of April 3, 1804, P.L. 517, 4 Sm.L. 201. This omission is established, plaintiffs assert, by the failure of the "Trial List and Court Minutes" of the Court of Common Pleas of Elk County to make any reference to the acknowledgement. But the silence of the minutes in this regard does not invalidate the sale if in fact the tax deed was acknowledged in open court. The Act of May 5, 1941, P.L. 38, § 1, 21 P.S. § 283 was enacted to make tax titles secure against just such an argument as plaintiffs make.5 16 The evidence is uncontroverted that the acknowledgement did in fact take place in open court on July 3, 1894. The certificate of the Prothonotary endorsed on the deed says so, and it is prima facie evidence of that fact. Act of May 11, 1911, P.L. 257, § 1, 21 P.S. § 48. An entry in the book entitled "Acknowledgement of Treasurer's Deeds" kept in the Office of the Prothonotary in Elk County likewise attests the open court acknowledgement on July 3, 1894. The "Trial List and Court Minutes" reveal that the Court of Common Pleas of Elk County sat on July 3, 1894. Plaintiffs' contention that the tax deed was invalid because it was not acknowledged in open court is untenable. 17 It is of no moment that Proctor, in his deed to Elk Tanning Company, reserved the natural gas to himself and to his heirs and assigns. If the tax sale to Childs cut off all of Proctor's legal title to the warrant, including his title to the natural gas, subject only to his right of redemption under Pennsylvania law6 — as we hold that it did — then when Proctor gave his deed to Elk Tanning Company, he had no legal title in the surface to convey to Elk Tanning Company or in the natural gas to reserve to himself. The reservation could not revive in Proctor the legal title which he had lost by the earlier tax sale. II 18 Plaintiffs next contend that even if the treasurer's acknowledgement of the tax deed to Childs was valid and Childs purchased a good legal title thereby, nevertheless Proctor retained an equitable interest in the gas. Plaintiffs say that they "proposed to prove facts" showing an agreement between Proctor and Elk Tanning Company under which the latter assumed to clear Proctor's title to Warrant 5343 of all debts and encumbrances through 1892 and that it did so either by way of payment of the tax or redemption of the warrant from the sale; or alternatively, that Elk Tanning Company failed to carry out its commitment as a result of which the warrant was acquired by it by fraud. The effect of the summary judgment, plaintiffs say, is to deprive them of their right to present to the jury for its determination the issues of payment, redemption and fraud.7 19 The difficulty with this argument is that there are no facts before us from which the existence of an agreement between Proctor and Elk Tanning Company such as plaintiffs postulate can be found either directly or by implication.8 Plaintiffs' proposal to prove the agreement at the trial is not enough to defeat the summary judgment motion. The liberality of our treatment of the facts included in plaintiffs' statements of their position cannot be stretched to the point where we accept as true what plaintiffs characterize as "the well-founded supposition" that at one time such an agreement existed; particularly as defendants have refused to concede the existence of such an agreement. A party who desires to resist a motion for summary judgment cannot hold back his evidence until trial, but must bring it before the Court when the motion is heard so that it may then be judicially evaluated. Engl v. Aetna Life Ins. Co., 2 Cir., 1943, 139 F.2d 469, 473; 6 Moore Federal Practice, ¶ 56.11 (2d Ed.). 20 But wholly apart from any agreement between Proctor and Elk Tanning Company such as plaintiffs hypothesize, it is at least inferable that the tax sale purchase was simply a means whereby Elk Tanning Company, acting through its president Childs, acquired title to Warrant 5343 in furtherance of a written agreement dated January 25, 1893 between Proctor and other tannery owners, including Childs, to consolidate their businesses and bark lands in United States Leather Company; and that the consolidation was effected by Proctor and the other tanners by conveying their properties, including Warrant 5343, to wholly owned subsidiaries of United States Leather Company, including Elk Tanning Company, in consideration for stock of the latter company.9 The agreement of January 25, 1893 expressly provided that when the bark lands were conveyed, the oil, gas and minerals should be reserved to the grantors. Other evidence tends to confirm this intention. It can be inferred, therefore, that when Childs acquired the tax deed for Elk Tanning Company, the latter acquired title to a larger estate than was intended because of a mutual mistake of law as to the effect of the transaction. If this were so, Elk Tanning Company was unjustly enriched and a constructive trust in the natural gas arose in which Proctor and his successors in interest were the beneficial or equitable owners. Restatement, Restitution §§ 48, 50, 160 (Comment a.), 163; 3 Scott on Trusts §§ 462.5, 465, 466. Pennsylvania has recognized the latitudinous principle that a constructive trust may arise against one who has been unjustly enriched even though he has been guilty of no act of wrongdoing. Dubin Paper Co. v. Insurance Co. of North America, 1949, 361 Pa. 68, 63 A.2d 85, 94, 8 A.L.R.2d 1393. 21 But even assuming that a constructive trust did arise in Proctor's favor following the tax sale, still plaintiffs are barred from maintaining the action. Plaintiffs' asserted rights came into being in 1894, more than 60 years before the present suit was begun. The District Court held that the action was barred by the Third Section of the Act of April 3, 1804, P.L. 517, 4 Sm.L. 201.10 Whether this statute has application to the type of claim here involved need not be determined. For the five-year period of limitation imposed by the Act of April 22, 1856, P.L. 532, § 6, 12 P.S. § 83 was intended to protect landholders from just such an equitable claim as is here asserted.11 It is a statute of repose which was intended to insure greater certainty of title and make more secure the enjoyment of real estate against a claim based upon an "implied trust". Ross v. Suburban Counties Realty Corporation, 1947, 356 Pa. 126, 51 A.2d 700, 701. The term "implied trust" in 12 P.S. § 83 includes a constructive trust. McKean & Elk Land & Imp. Co. v. Clay, 1892, 149 Pa. 277, 24 A. 211; Johnson v. Hobensack, 1935, 318 Pa. 305, 178 A. 40; Gast v. Engel, 1952, 369 Pa. 137, 85 A.2d 403. 22 Once a constructive trust has arisen, even the ignorance of the beneficiary of his rights will not toll the period of limitation fixed by 12 P.S. § 83 unless the trust was the result of a fraud. The statute says as much. 23 Fraud can be proven only by evidence which is clear, explicit and unequivocal. See, e. g., Modern Baking Co. v. Orringer, 1921, 271 Pa. 152, 114 A. 264; Martin v. Baird, 1896, 175 Pa. 540, 34 A. 809, 812; Bayout v. Bayout, 1953, 373 Pa. 549, 96 A.2d 876; Wagner v. Somerset County Memorial Park, 1953, 372 Pa. 338, 93 A.2d 440. Not only is the record devoid of proof which meets this high standard, but indeed it is barren of any evidence of fraud in the circumstances attending the tax sale. At most, the evidence points to a bona fide mistake as to its legal consequences. In these circumstances the statute of limitations presents an insuperable bar to the action. 24 The view which we have taken of the matter makes it unnecessary for us to consider other arguments advanced by the parties. 25 The judgment of the District Court will be affirmed. Notes: 1 When lands fail to disclose improvements indicating a personal responsibility of the owner for the taxes, the assessor must return the lands as unseated. Hutchinson v. Kline, 1901, 199 Pa. 564, 49 A. 312, 313; Whitworth, Tax Sale and Titles and the Evidence of the Same in Pennsylvania, Chapter IV, page 52, § 29 (1900) 2 It is assumed that the action is appropriate to be tried to a jury, although we have given no consideration to this question 3 The idea of testing plaintiffs' case by a motion for summary judgment was advanced at a pre-trial conference at which Plaintiffs' Statement of Position and Plaintiffs' Reply to Defendants' Statement of Position were discussed. Both parties expressed the view that the filing of such a motion would be desirable and defendants indicated they would be willing to have their motion tested by conceding the truth of the "extraneous matters" which plaintiffs had adduced at the conference. Transcript Pre-trial, September 23, 1959 (Doc. 75), pp. 9, 18, 36, 39, 41-42 The opinion of the District Court discussed many of the unverified facts relied upon by plaintiffs. So did defendants in their brief in this Court. Defendants made no objection to the statements except on the grounds of relevancy. Some of the statements made by plaintiffs constituted legal conclusions. These conclusions were not admitted by defendants. Nor will they be accepted as true by us except as such conclusions are warranted by the factual statements and applicable legal principles. 4 If there had been a severance of the title of the gas from the title of the surface prior to the assessments for 1892 and 1893, and if each of the several interests had been separately assessed, a tax sale would have carried with it the title only to the particular estate as to which taxes were in default. F. H. Rockwell & Co. v. Warren County, supra. But there had been no such prior severance 5 21 P.S. § 283 provides: "Whenever heretofore any land has been sold by the county treasurer of any county for the purpose of securing the payment of delinquent taxes which were assessed and levied against such land, and the county treasurer in pursuance of such sale executed a deed for said lands, and the acknowledgment of such deed by the county treasurer was defective in any respect, or where the records of the court failed to show a minute of such acknowledgment in open court, such sale and such deed shall not be invalidated by reason of such defective acknowledgment, if, in all other respects, the laws relating to the holding of such sale were fully complied with and the deed was, in fact, acknowledged before a judge of said county; and all such treasurers' sales and treasurers' deeds are hereby ratified, confirmed and validated; and the title to any such land purchased by any person or by the county commissioners of any county at such treasurers' sale and the deed executed and acknowledged to such purchaser is hereby declared to be as valid as if such deed had been acknowledged in open court and a proper minute thereof made in full conformity with the law relating thereto. 1941, May 5, P.L. 38, § 1." Plaintiffs' argument that the "Trial List and Court Minutes" are irrebuttable proof that the treasurer's deed was not acknowledged in open court is based upon decisions which antedate the enactment of 21 P.S. § 283. Defendants take exception to the interpretation which the plaintiffs have placed on the decisions. In view of the statute this interpretive controversy need not be resolved. 6 In a request by defendants that plaintiffs admit certain facts, plaintiffs said in part: "The plaintiffs admit that if a redemption was necessary to avoid said alleged tax sale, no such redemption was made." 7 Statements in the record indicate a concession by plaintiffs that Proctor did not pay the taxes on the warrant. Other parts of the record, however, make it clear that the concession related only to a direct payment by Proctor, and that plaintiffs reserved the right to contend that the tax sale and its ramifications were equivalent in law to a payment of the tax on Proctor's behalf. Pre-trial Transcript (Doc. 75) pp. 23-26 Plaintiffs have admitted that the warrant was not redeemed (see f.n. 6), without any reservation comparable to that pertaining to the issue of payment. 8 If in fact such an agreement did exist, other impediments to plaintiffs' recovery immediately suggest themselves, but a discussion of them would be superfluous 9 While Warrant 5343 was not owned by Proctor when the January 25, 1893 contract was entered into, it is not unlikely that its acquisition was in contemplation At the time when the January 25, 1893 contract was entered into Elk Tanning Company had not been organized. 10 This provides: "* * * [N]o action for recovery of said lands [unseated lands sold at tax sale] shall lie, unless the same be brought within five years after the sale thereof, for taxes as aforesaid * * *" 11 12 P.S. § 83 provides: "No right of entry shall accrue, or action be maintained * * * to enforce * * * any implied or resulting trust as to realty, but within five years after such * * * trust accrued * * *: Provided, That as to anyone affected with a trust, by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when, by reasonable diligence, the party defrauded might have discovered the same * *" (Inapplicable language deleted).

412 F.Supp. 720 (1976) STATE OF NEW YORK, Plaintiff, v. LOCAL 1115 JOINT BOARD, NURSING HOME AND HOSPITAL EMPLOYEES DIVISION et al., Defendants. No. 76 C 333. United States District Court, E. D. New York. April 23, 1976. *721 Louis J. Lefkowitz, Atty. Gen., State of N. Y. by Allan N. Smiley, and Jesse P. Reisner, New York City, for plaintiff. Charles R. Katz, New York City, for defendants. MEMORANDUM AND ORDER NEAHER, District Judge. This motion to remand this removed case to the State court presents an interesting question of federal-State jurisdiction in controversies involving labor unions. The action and motion arise out of the following circumstances. The Attorney General, on behalf of the plaintiff State of New York, instituted this action against the defendant union ("Local 1115") in the New York Supreme Court, Suffolk County, on or about January 21, 1976. The Attorney General acted at the request of the New York State Commissioner of Health, made pursuant to New York's Public Health Law § 12(5),[1] who advised that thousands of elderly and/or chronically ill patients of nursing homes in Nassau and Suffolk would suffer irreparable injury, if Local 1115 were to carry out a threatened strike against employer-operators of the nursing homes.[2] Alleging those facts, the *722 Attorney General moved by order to show cause for a preliminary injunction preventing Local 1115 from engaging in a strike or slowdown. The show cause order, signed by a Justice of the State court, temporarily restrained the union pending a hearing on the application for a preliminary injunction. Local 1115 appeared in the State court and filed its response in opposition to the Attorney General's application. Additionally, it affirmatively cross-moved to dismiss the complaint for lack of subject-matter jurisdiction and for failure to state a cause of action and, alternatively, to vacate the temporary restraining order, asserting that the State law upon which the Attorney General relied had been preempted by the 1974 Congressional amendments extending the coverage of the National Labor Relations Act, 29 U.S.C. §§ 151, et seq., to health care facilities.[3] On February 5, 1976 the State court, citing the State constitution, the Public Health Law and the common law powers of the Attorney General, granted the motion for a preliminary injunction and denied the cross-motion to dismiss. Instead of appealing the decision, Local 1115 removed the action to this court on February 25, 1976, claiming that the Attorney General is "seeking to enjoin activities [the strike] the right of which are [sic] guaranteed by the National Labor Relations Act" and that consequently the action arises under the laws of the United States. 28 U.S.C. § 1441(b). The Attorney General promptly moved to remand the case to the State court, 28 U.S.C. § 1447(c), contending that the complaint seeks relief solely under State law. Local 1115 cross-moved to dismiss, arguing that since Congress has preempted the area, the State court never had subject matter jurisdiction of the action and therefore this court has no derivative jurisdiction. Discussion A defendant sued in a State court upon a claim or right arising under the Constitution or laws of the United States may, of course, remove the action to a federal court. 28 U.S.C. § 1441. A defense based on federal law, however, will not sustain removal jurisdiction. Application of State of New York, 362 F.Supp. 922, 926 (S.D.N.Y.1973). Whether an action arises under federal law is determined with reference solely to plaintiff's complaint, Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70, 72 (1936), and "[t]he party who brings a suit is master to decide what law he will rely upon . . .." The Fair v. Kohler Die and Specialty Company, 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716, 717 (1913) (Holmes, J.). Thus, if relief is available under both federal and State law, federal jurisdiction may be defeated by the plaintiff's chosen reliance solely on the latter. Great Northern Ry. Co. v. Alexander (Hall's Adm'r), 246 U.S. 276, 282, 38 S.Ct. 237, 239, 62 L.Ed. 713, 716 (1918). There is, however, a caveat that a plaintiff may not, by artful pleading, cast a claim, the essence of which is a federal right, in terms of State law and thereby defeat removal. The inquiry then is whether the claims asserted by the Attorney General are in essence founded on rights exclusively resting upon federal law. See Gully v. First National Bank, supra, 299 U.S. at 112, 57 S.Ct. at 97, 81 L.Ed. at 71. Clearly on their face they are not. The Attorney General's complaint seeks relief supported solely by the State Constitution, the Public Health *723 Law and State common law. As Justice Holmes noted in American Well Works v. Layne, 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987, 989 (1916). "A suit arises under the law that creates the cause of action." Local 1115 argues, however, that by virtue of the 1974 Health Care Amendments, P.L. 93-360, Congress preempted the area of strikes involving health care facilities, thereby rendering inoperative the State laws upon which the Attorney General relies, citing Division 1287 v. Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763 (1963), and San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1958). The union reasons from this that the Attorney General's complaint must therefore be based on federal law.[4] This argument assumes too much. It does not necessarily follow that because State law has been preempted, a litigant must be held to rely on superseding federal law. Certainly in situations where preempting federal law provides the litigant, whose State claims have been preempted, with an alternative federal claim, see, e. g., Hearst Corp. v. Shopping Center Network, Inc., 307 F.Supp. 551, 556 (S.D.N.Y.1969) (dictum) (copyrights); Coditron Corp. v. AFA Protective Systems, Inc., 392 F.Supp. 158, 160 (S.D.N.Y.1975) (dictum) (patents); Sylgab Steel & Wire Corp. v. Strickland Transportation Co., 270 F.Supp. 264 (E.D.N. Y.1967) (interstate shipments), it is reasonable to assume that a litigant will choose to seek relief under federal law rather than abandon his claim altogether. Where, however, superseding federal law does not replace rights formerly granted by State law, it is illogical to say that the litigant's claim is really predicated on a body of law which grants him no rights. Here, assuming arguendo that State law, which clearly constitutes the gravamen of the Attorney General's complaint, has been preempted, there is no basis for concluding that the Attorney General's claim has therefore been converted into one arising under federal law. Federal law is cast in terms of employers,[5] labor organizations, the National Labor Relations Board[6] and, as concerns health care institutions, the Federal Mediation and Conciliation Service, with primary recourse to the courts severely limited. See Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974); Boys Markets, Inc. v. Retail Clerks' Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Nowhere in the federal scheme is there a procedure relating to the State, as a party, intervening in a labor dispute in the exercise of its police powers. The Attorney General's right to relief in this action thus depends solely on the continued vitality of State law and does not arise under federal law.[7] As the Court said in Gully, supra: *724 "By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby. Louisville & Nashville R. Co. v. Mottley [211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908)]." 299 U.S. at 116, 57 S.Ct. at 99, 81 L.Ed. at 74. Whether the Union's preemption contention is correct should be decided as a matter of defense in the State courts in the first instance, see Application of State of New York, supra, 362 F.Supp. at 928; Beacon Moving and Storage, Inc. v. Local 814, IBT, 362 F.Supp. 442, 445 (S.D.N.Y.1972); City of Galveston v. International Organization of Masters, Mates & Pilots, 338 F.Supp. 907, 909 (S.D.Tex.1972), with ultimate recourse to the Supreme Court. State courts are obliged under the Supremacy Clause to follow federal law where applicable and there is no reason to believe that they are unwilling or incapable of so doing, see, e. g., Pennsylvania v. Nelson, 377 Pa. 58, 104 A.2d 133 (1954), aff'd, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956); State ex rel. Rogers v. Kirtley, 372 S.W.2d 86 (Sup. Ct.Mo.1963); John Hancock Mutual Life Insurance Co. v. Commissioner of Insurance, 349 Mass. 390, 208 N.E.2d 516 (1965).[8] See also De Canas v. Bica, 40 Cal.App.3d 976, 115 Cal.Rptr. 444 (2d Dist.1974), rev'd, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). The Attorney General's motion to remand is granted and the Union's cross-motion to dismiss is denied. SO ORDERED. NOTES [1] It shall be the duty of the attorney general upon the request of the commissioner to bring an action for an injunction against any person who violates, disobeys or disregards any term or provision of this chapter or of any lawful notice, order or regulation pursuant thereto; provided, however, that the commissioner shall furnish the attorney general with such material, evidentiary matter or proof as may be requested by the attorney general for the prosecution of such an action." [2] Local 1115's grievance arises out of the failure of the nursing homes to make increased payments to the union's welfare fund, as required by a four-year collective bargaining agreement. The nursing homes have apparently refused to pay the increases, effective January 1, 1976, because of the freezing of Medicaid rates. The nursing homes have, for reasons best known to themselves, not sought injunctive relief against the proposed strike. [3] Local 1115 also contended that the order of the Health Commissioner did not comply with the requirements of either the Public Health Law or the State Labor Law. Finally, Local 1115 argued that the complaint was defective because it did not allege that the union membership authorized or ratified the contemplated strike. [4] Local 1115 relies heavily on a recent decision of the Southern District Court, State of New York v. Local 144, 410 F.Supp. 225, 76 Civ. 467 (S.D.N.Y.1976), where the court on similar facts denied a motion to remand and dismissed the complaint. For the reasons discussed in the text, this court respectfully disagrees with the conclusion reached in that case. [5] In fact, 29 U.S.C. § 152(2) defines "employer" to exclude "any State or political subdivision thereof." [6] By letter dated January 28, 1976, the NLRB informed the Attorney General that "In view of the fact that no unfair labor practice charge, relating to the matter described in the Order to Show Cause forwarded to this office by you, has been filed in Region 2, no action by this office is contemplated. A charge must be filed alleging a violation of the National Labor Act, the Act administered by this agency, before this agency can commence an investigation." [7] The Attorney General did bring to the State court's attention and has argued in this court that the State, though not a signatory, should be allowed to enforce a no-strike provision in the collective bargaining agreement. No motion to amend the complaint to assert such a claim has been made and the State court's decision appears to rest solely on State law. This afterthought on the Attorney General's part, and for which it concedes an absence of precedent, appears to be an unworkable one. While a court may enjoin a strike in violation of an express or implied no-strike clause, Boys Market, supra; Gateway Coal, supra, a condition of such an order must be a submission to arbitration by the parties to the collective bargaining agreement. Here, the nursing homes are not parties to the suit and consequently could not be subjected to such an order. This afterthought, not incorporated in any pleading, is insufficient to create federal jurisdiction. [8] Nor can it be said that remand is improper because if State law is preempted the State court has no subject matter jurisdiction. The preemption question raised here concerns itself with which body of substantive law, federal or State, governs, not which judicial system has subject matter jurisdiction. State courts retain jurisdiction in labor matters, even if federal law is to be applied. Charles Dowd Box Co., Inc. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962), affirming 341 Mass. 337, 169 N.E.2d 885 (1960). The situation is different if Congress has explicitly vested exclusive jurisdiction in the federal courts, e. g., 28 U.S.C. § 1338.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6538 ANTONIO SAUNDERS, Plaintiff - Appellant, v. MALISSA STEVENS-SAUNDERS; CAPITAL ONE HOME LOANS; JASON MCKINNEY, Capital One Agent; COUNTRYWIDE HOME LOANS; LAWYERS TITLE REALTY SERVICE, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:08-cv-00169-LMB-TCB) Submitted: May 9, 2008 Decided: June 6, 2008 Before MICHAEL, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Antonio Saunders, Appellant Pro Se. Adela Bashir Parvaiz, Travis Aaron Sabalewski, REED SMITH, LLP, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antonio Saunders appeals the district court’s order dismissing this civil action for want of subject matter jurisdiction pursuant to 28 U.S.C. § 1915(e)(2)(B) (2000). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Saunders v. Stevens-Saunders, No. 1:08-cv-00169-LMB-TCB (E.D. Va. filed Mar. 24, 2008; entered Mar. 27, 2008). 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 -2- 

293 S.W.2d 515 (1956) The CITY OF HOUSTON, Appellant, v. Sam FREEDMAN, d/b/a Freedman Packing Company et al., Appellees. No. 12995. Court of Civil Appeals of Texas, Galveston. June 28, 1956. Rehearing Denied September 20, 1956. *516 Geo. D. Neal, City Atty. and Homer T. Bouldin, Asst. City Atty., Houston, for appellant. Aaron Goldfarb, Houston, for appellee, Sam Freedman, d/b/a Freedman Packing Co. Calvin B. Garwood, Jr., Houston, for appellee, Port City Packing Co. GANNON, Justice. This is an appeal by the City of Houston from a summary judgment against it in a suit for mandamus and injunction to require the City to issue a building permit to Sam Freedman for the construction of an abattoir and to enjoin the City from interfering with the construction of the abattoir. Plaintiffs filed their verified petition. The defendant City of Houston answered solely by unverified general denial. The summary judgment followed, though not necessarily under the provisions of Rule 166-A, Texas Rules of Civil Procedure. Under the rules of pleading and practice in mandamus actions where defendants stand solely on an unverified general denial, plaintiff is entitled to summary judgment if his pleadings state facts entitling him to the relief sued for. See 28 Tex.Jur., page 641, "Mandamus," Sec. 67; Doeppenschmidt v. City of New Braunfels, Tex.Civ.App. Austin, 1927, 289 S.W. 425, writ refused; and Marr v. Reynolds, Eastland, Tex.Civ.App.1941, 151 S.W. 2d 263, 264. We quote from Marr v. Reynolds, supra: "From the record it appears that no issues of fact were joined by the pleadings. The defendants only answered by a general demurrer and general denial. In mandamus suits, a general denial does not join issues upon the facts alleged in plaintiffs' petition. Plaintiffs were not put to the necessity of proving the facts alleged by them; but, in effect, such facts were admitted. Townes' Texas Pleading, p. 572; Sansom v. Mercer, 68 Tex. 488, 5 S.W. 62, 2 Am.St.Rep. 505; McKenzie v. Baker, 88 Tex. 669, 675, 32 S.W. 1038, 1039; May v. Finley, 91 Tex. 352, 354, 43 S.W. 257, 258; Brown v. Ruse, 69 Tex. 589, 592, 7 S.W. 489, 492; Donna Irr. Dist. [Hidalgo County, No. 1] v. West Coast Life Ins. Co., Tex.Civ.App., 103 S.W.2d 1091; Doeppenschmidt v. City of New Braunfels, Tex.Civ.App., 289 S.W. 425; Singleton v. Austin, County Judge, 27 Tex.Civ.App. 88, 65 S.W. 686." Since the appeal is determinable on the face of plaintiffs' petition, we summarize it, quoting where necessary for accurate understanding: It is alleged that in October of 1954 appellee, Sam Freedman, doing business as Freedman Packing Company, contracted with Port City Packing Company to purchase a three acre tract of land *517 within the corporate limits of the City of Houston, intending to erect thereon an abattoir, but that said contract was expressly made contingent upon appellee Freedman obtaining a permit from the City of Houston for the erection of an abattoir and packing plant upon the subject land. It is then alleged. "Thereafter, on or about August 15, 1955, Plaintiff, Sam Freedman, under the name and style of Freedman Packing Company, in strict compliance with Section 887 of the Houston City Code (1942) and all applicable provisions of the City Building Code and other ordinances, duly filed with the City Secretary of The City of Houston, his application to construct the said abattoir, together with all plans and specifications therefor, a plan of the property proposed to be employed as a plant site and all other information required by said Section 887. * * * That since the date of the filing of the application for permit for construction and erection of the abattoir by Plaintiff, Sam Freedman, the plans and specifications have been given approval by Dr. R. S. Martin, Chief of Meat Inspection Division of the City Health Department, and likewise the sewer system of said abattoir and packing plant has received approval by the Department of Public Workds for the City of Houston." This is followed by allegations of diligent, timely, but unsuccessful, efforts of appellees to prevail upon appellant, through its City Council, to act upon appellees' application for the permit within a reasonable time. It is then alleged, "Plaintiff, Sam Freedman, dba Freedman Packing Company, would respectfully show to the Court that at great expense to him, he employed a reputable architect to prepare the plans for the building in which the proposed abattoir is to be housed; that such plans fully comply with all appropriate Federal, State and Municipal laws covering construction of buildings of this nature; that to revise such plans in order to adapt the buildings to another location would prove costly and time consuming; the Plaintiff, Sam Freedman, is ready and willing to pay such lawful fees as may be imposed for the issuance of said permit and by this petition does hereby tender unto Respondent the amount of such fees. "* * *. "Plaintiffs would further allege that Respondent not only has the power and authority to issue the said building permit, but that, the application therefor being in full conformity to all requirements of the City Building Code and other laws and ordinances applicable thereto, Respondent is charged with a mandatory, non-discretionary duty to issue said permit, and in this connection the attention of the Court is respectfully invited to Section 887 of the Houston City Code (1942), which reads as follows: "Sec. 887. Application for and issuance of permit for abattoir. "`Any butcher or other person desiring to erect, construct or maintain any abattoir plant for the purpose of a slaughtering animals to be used as food, exhibited for sale or sold for food within the city, shall, prior to the beginning of the erection or construction of same, file with the city secretary a written request addressed to the city council, stating that he desires to erect, establish and maintain an abattoir plant for the purpose of slaughtering animals to be used or sold as food in whole or in part, within the city, the proposed location and probable cost of same. The application shall be accompanied by complete plans and specifications showing in detail the proposed arrangement, materials, equipment and operation of said building, stock pens, chutes, etc. The application, plans and specifications shall be examined by the director of public works and the city council or a committee thereof, and if the proposed abattoir complies in all material respects with the provisions of this article and the proposed location of same as satisfactory to *518 the city council, it shall instruct the health officer to issue a permit for the erection, establishment and maintenance of said abattoir. If said application is for any reason refused by the city council, the health officer shall notify the applicant to that effect in writing.' "Respondent having failed and refused to perform its lawful, mandatory duty to issue the building permit within a reasonable length of time, after plaintiffs have made three formal appearances before the City Council, numberous informal requests and one specific formal demand for action, as hereinabove alleged, and there being no legal impediment to the issuance of said permit. Plaintiffs have no recourse or remedy other than by way of this petition for Writ of Mandamus to compel its issuance." The prayer is for mandamus requiring the City Council to direct the issuance of a building permit authorizing the construction of the abattoir and for injunctive relief restraining the City from interfering with such construction. Upon submission and in oral argument, counsel for the City asked us to go beyond the face of the petition and take judicial notice of Sections 886 and 888 of the Code of the City of Houston of 1942. These sections respectively precede and immediately follow Section 887 of the Code which is pleaded by plaintiffs. Though requested to furnish authorities which would authorize us to take judicial notice of these unplead sections, counsel for the City have not furnished or suggested any. We have located Dallas Railway & Terminal Co. v. Price, Tex.Civ.App., Dallas, 1936, 94 S.W.2d 884, 893. That case differs somewhat from the present in that there the Railway Company plead an ordinance by reference to Article number of the City Code and purported by its pleadings to summarize the substance of the entire article as it appeared in the Revised Ordinances of the City of Dallas of 1921. The Dallas court said, "As the ordinance was pleaded by reference to article number, we were authorized, in determining the correctness of the action of the court in striking out the plea, to take cognizance of the entire article. Courts are at liberty to take judicial notice of a city ordinance either when its existence is admitted, or the same is pleaded by reference to its title or article. See 23 C.J., Evidence, 139, § 1961; Seattle, R. & S., R. Co. v. [City of] Seattle, C.C., 190 F. 75; Buhner v. Reusse, 144 Minn. 450, 175 N.W. 1005. Also see 33 Tex.Jur. p. 557, § 122. So, we do not think it can be said that we added to or amplified the record, as contended by appellant; we simply took judicial knowledge of the entire article pleaded by number, the existence of which, in this way, was admitted by the appellant." (Emphasis supplied.) The present pleading is distinguishable from that involved in Dallas Railway & Terminal Co. v. Price, supra, in that here the only provision of the Code which is pleaded by article or section number is Section 887 which is set out in haec verba, though it is true as appears from the foregoing quoted part of the petition that there is a reference to "all applicable provisions of the city building code and other ordinances" and to "all appropriate Federal, state and municipal laws covering construction of buildings of this nature." For purposes of clarity, we attach hereto as an exhibit the provisions in full of Sections 886-888, both inclusive, of the Code of the City of Houston of 1942. We have concluded that we are not authorized to take judicial notice of any ordinance of the City of Houston or of any provision of its Code of 1942 which is not pleaded. The Minnesota case and the Federal case from the State of Washington cited by the Dallas court were decided on the provisions of statutes of Minnesota and Washington, respectively, requiring courts to take judicial notice of the enactments there involved. The reference to Section 1961 of the title "Evidence," 23 C.J. 139, *519 is applicable only in so far as the text authorizes judicial notice be taken of a city ordinance "where there is an admission of the existence thereof by counsel". See, also, 31 C.J.S., Evidence, § 27. Here there is no admission by counsel of the existence of unpleaded Sections 886 and 888 of the Houston Code. We have checked the reference in the opinion of the Dallas court to 33 Tex.Jur., page 557, Sec. 122. We find nothing there bearing on the question. It is, of course, elementary that courts are not authorized to take judicial notice of municipal ordinances which, under our decisions, like any other fact, must be alleged and proved. 17 Tex.Jur., page 181, "Evidence", Civil Cases, Section 13. Be the foregoing as it may, we deem it appropriate to say that for reasons which will appear later, our decision would be the same were we free to consider all provisions of the Houston City Code which counsel for the City have brought to our attention. We have reached the conclusion that the allegations of the plaintiffs' petition which, in view of the status of defendant's pleadings, the trial court was required to accept as true, entitled plaintiffs to the relief awarded because we feel that the contention of the City, substantially to the effect that the City had a discretionary right, under the ordinance involved, to refuse to direct the issuance of the permit, is untenable. It is well established that "courts will not interfere by mandamus with the action of the governing body of a city in refusing a permit * * *, where the matter is left to their discretion by a valid ordinance, and no abuse of discretion is shown." 30-A Tex.Jur., page 395, Sec. 396. It is equally well established by the same text that "An ordinance of this kind [building permit ordinance] is invalid where it does not set up any standard for determining whether or not the building may be erected in a particular district or locality, but leaves the determination of the question to the caprice, whim, or unbridled discretion of a board or an officer—such as a building inspector—or to the desires of nearby property owners. The same is true of an ordinance which leaves it to the arbitrary determination of the governing body of the city whether they will grant or refuse leave to repair a building." (Emphasis supplied.) The stated principles are well illustrated by the Supreme Court case of Crossman v. City of Galveston, 1923, 112 Tex. 303, 247 S.W. 810, 815, 26 A.L.R. 1210. There the suit was one by Crossman and others against the City of Galveston and its commissioners in part for a writ of mandamus requiring defendants to grant an application for leave to repair a building. On trial the plaintiffs were denied relief. On appeal this Court affirmed. The Supreme Court reversed. The gist of the opinion is readily ascertainable from the following: "* * * plaintiffs in error made application to the city commissioners for permission to repair it [a wooden building], and thus obviate the condition about which complaint was made. This application was refused. Section 177 of the Building Code of the City of Galveston, adopted October 14, 1914, reads as follows: "`It shall not be lawful, except when otherwise ordered by the board of commissioners, to erect, build, place, enlarge or repair any wooden building or structure, or any building or structure whatsoever, constructed of wood or with a wooden roof, * * * in this city, within the following boundaries: (Here follow the boundaries.)' "It will be observed that this ordinance lays down no rule of action for the government of the city commissioners in granting or rejecting applications for permits to repair wooden buildings within the fire limits of the city, such as the one here in question. A law is said to be a rule of action, but here no rule is given. The ordinance, therefore, falls short of being a law. It leaves to the arbitrary determination of the commissioners when they will grant leave to repair a building, or when they will refuse the application, and is therefore to that extent void. *520 Spann v. City of Dallas, [111 Tex. 350] 235 S.W. 513, 517 [19 A.L.R. 1387]; State v. Tenant, 110 N.C. 609, 14 S.E. 387, 15 L.R.A. 423, 28 Am.St.Rep. 715; Yick Wo v. Hopkins, 118 U.S. 356, 8 S.Ct. 1064, 30 L.Ed. 220; City of Montgomery v. West, 102 Me. 47, 65 A. 516, 9 L.R.A.,N.S., 659, and notes, 120 Am.St.Rep. 454; City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312, 13 L.R.A. 587. "The case of Spann v. City of Dallas, [111 Tex. 350] 235 S.W. 513, 517, is directly in point. In that case this court, speaking through Chief Justice Phillips, said: "`A further vice in the ordinance is that even with the necessary consent of the property owners of the district, a business house may not be erected within it except upon the building inspector's approval of the design of the building. No rule or standard is given to govern the applicant in fashioning the design of his building or to govern the inspector in approving or rejecting it. The ordinance leaves it to the unbridled discretion of the inspector to disapprove the design, resulting in a refusal of the permit and the prohibition of the building. This leaves the right to construct the building subject to the arbitrary discretion of the inspector, and of itself renders the ordinance void. The very essence of American Constitutions is that the material rights of no man shall be subject to the mere will of another. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.' "A further discussion of this particular proposition appears unnecessary. The ordinance here in question contains the identical vice justly condemned by Chief Justice Phillips in the opinion just quoted from." (Emphasis supplied.) If any part of any provision of any section of the Houston Code here relied on to justify the refusal of the permit involved lays down a legally supportable, definite rule of action for the government of the City Council in determining whether to direct the issuance or rejection of an application for a permit to construct an abattoir, such rule of action has not been pointed out to us. The City seeks to justify its refusal of the permit on its underlying police power, unimplemented by any valid ordinance providing any law, rule, canon or other curb for the government of the Council. The following is as definite and concrete a presentation of the City's position as appears in its brief. We quote: "As a matter of law the City Council did not have the * * * non-discretionary duty to order such building permit issued. There are disputed genuine issues of material facts to be passed upon in this case as to whether the building and operation of such plant would be a nuisance, whether it is against the public welfare, whether the City Council had not passed upon said application within a reasonable time considering all the facts and circumstances including time for proper investigation of the facts in the case, and considering their many other duties, and whether they acted arbitrarily, fraudulently in the matter of not passing upon such application." As we have seen, the fact question of reasonableness of time in which the City should have acted is not in issue under the City's unverified general denial. As we have also seen, where, as here, there is no valid ordinance providing a rule of action for the government and restraint of discretion to preserve it from whimsy and caprice, there is no legally supportable discretion vested in the Council. The City points to no requirement or provision of its ordinances which appellees have failed to meet. And, if as we understand it it is the City's position that each member of the Council without regard to any rule of action established by ordinance is free arbitrarily to exercise his personal discretion from time to time as applications are filed to determine whether the construction of a particular abattoir at a particular location would be in the public welfare, then *521 we rule that this position cannot be squared with the due process and due course of the law of the land provisions of the Federal and state Constitutions, respectively. Crossman v. City of Galveston, supra. Affirmed. EXHIBIT "Sec. 886. Requirements as to buildings, departments, distance from city, etc. The abattoir buildings shall be substantially constructed of material chosen because of its easy adaptation to perfect cleanliness in actual operation as an abattoir. "Each plant must provide for stock pens, killing floors, a chill room, cold storage, and an approved method of handling offal. No plant or abattoir shall be approved that is a greater distance than ten miles from the city limits. Plans and specifications must be submitted to the City council along with the application. "It shall be unlawful for any butcher or any other person to erect, establish, reform, maintain and operate any abattoir house or plant where animals are slaughtered to be used as food or offered for sale or sold for food within the city, which abattoir is not constructed, maintained and operated in accordance with all the provisions of this article. "Sec. 887. Application for and issuance of permit for abattoir. Any butcher or other person desiring to erect, construct or maintain any abattoir plant for the purpose of slaughtering animals to be used as food, exhibited for sale or sold for food within the city, shall, prior to the beginning of the erection or construction of same, file with the city secretary a written request addressed to the city council, stating that he desires to erect, establish and maintain an abattoir plant for the purpose of slaughtering animals to be used or sold as food in whole or in part, within the city, the proposed location and probable cost of same. The application shall be accompanied by complete plans and specifications showing in detail the proposed arrangement, materials, equipment and operation of said building, stock pens, chutes, etc. The application, plans and specifications shall be examined by the director of public works and the city council or a committee thereof, and if the proposed abattoir complies in all material respects with the provisions of this article and the proposed location of same as satisfactory to the city council, it shall instruct the health officer to issue a permit for the erection, establishment and maintenance of said abattoir. If said application is for any reason refused by the city council, the health officer shall notify the applicant to that effect in writing. "Sec. 888. Permits in force only so long as regulations observed. All abattoir or slaughterhouse permits shall be issued and remain in force and effect only where the buildings, equipment, etc., are used expressly and for the purposes referred to in this article, and no permit shall be issued or allowed to remain in force and effect unless and until the buildings and equipment are, in the opinion of the city council, properly located and maintained and unless and until there is provided an ample means or method of disposal of the waste and offal in a sanitary manner." (From The Code of The City of Houston, Texas of 1942).

611 F.Supp.2d 647 (2009) BARTEX RESEARCH, LLC v. FEDEX CORP., et al. Civil Action No. 6:07-CV-385. United States District Court, E.D. Texas, Tyler Division. April 20, 2009. *648 Thomas John Ward, Jr., Ward & Smith Law Firm, Longview, TX, David J. Sheikh, Dina M. Hayes, Paul C. Gibbons, Raymond P. Niro, Richard B. Megley, Jr., Niro Scavone Haller & Niro, Chicago, IL, Eric M. Albritton, Albritton Law Firm, Longview, TX, for Plaintiff. Bradley E. Edelman, Doris Johnson Hines, John S. Sieman, Finnegan Henderson Farabow Garrett & Dunner, *649 Washington, DC, James Patrick Kelley, Otis W. Carroll, Jr., Ireland Carroll & Kelley, Tyler, TX, Jeffrey Allen Berkowitz, Finnegan Henderson Farabow Garrett & Dunner, Reston, VA, for Defendants. MEMORANDUM OPINION AND ORDER JOHN D. LOVE, United States Magistrate Judge. Before the Court is a Motion for Stay of Litigation Pending Reexamination of the Asserted Patent filed by Defendants FedEx Corporation, FedEx Express Corporation, FedEx Ground Package System, Inc., and FedEx Kinko's Office and Print Services, Inc. (collectively "FedEx"). (Doc. No. 68.) FedEx has also filed a Reply in Support, (Doc. No. 71), and Plaintiff BarTex Research, LLC ("BarTex") has filed a Response in Opposition, (Doc. No. 70). For the reasons stated below, FedEx's Motion is DENIED. BACKGROUND BarTex filed the instant action on August 16, 2007, alleging that FedEx infringes U.S. Patent No. 6,666,377 ("the '377 patent"), entitled "Bar Code Data Entry Device." BarTex asserts that FedEx's shipping labels infringe the asserted claims. The inventor of the '377 patent is Scott Harris. On October 5, 2007, Illinois Computer Research—the owner of another Harris patent—filed a pleading in an Illinois litigation making clear that the Fish & Richardson law firm, Harris's former employer, had asserted ownership over some of Harris's patents. On February 12, 2008, Fish & Richardson filed a motion suggesting that BarTex was likely to become a party to that litigation to fight over ownership of the '377 patent. On May 19, 2008, BarTex amended its complaint to add Fish & Richardson as a party in this case, and then filed a motion for Partial Summary Judgment of Ownership. (Doc. Nos. 38, 41.) On August 19, 2008, BarTex informed the Court that Fish & Richardson no longer claimed ownership of the '377 patent. (Doc. No. 52.) The Court granted BarTex's Motion for Partial Summary Judgment of Ownership on November 3, 2008. (Doc. No. 61.) On December 18, 2008, FedEx filed a request for inter partes reexamination of the '377 patent with the United States Patent and Trademark Office ("PTO"). On February 20, 2009, the PTO granted FedEx's request, and, in an initial office action, rejected all claims of the '377 patent over the prior art. FedEx filed this Motion for a Stay Pending Reexamination on March 6, 2009. The claim construction hearing in this case is scheduled for May 27, 2009, and trial is set for January 11, 2010. APPLICABLE LAW District courts have the inherent power to manage their dockets, and this includes the power to stay proceedings. Soverain Software LLC v. Amazon.com, Inc., 356 F.Supp.2d 660, 662 (E.D.Tex. 2005); see also Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ("The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants."). In deciding whether to stay litigation pending reexamination of a patent, courts primarily consider three factors: 1) whether a stay will unduly prejudice or present clear tactical disadvantage to the nonmoving party, 2) whether a stay will simplify the issues in question and the trial of the case, and 3) whether discovery is complete and whether a trial date has *650 been set. Soverain Software, 356 F.Supp.2d at 662. If the stay is unlikely to prejudice the plaintiff and the motion for stay comes early in the case, courts generally look favorably on granting stays pending reexamination. District Courts have noted a number of advantages in granting a stay pending reexamination: 1) all prior art presented to the Court will have been first considered by the PTO with its particular expertise; 2) many discovery problems relating to the prior art can be alleviated by the PTO examination; 3) in those cases resulting in effective invalidity of the patent, the suit will likely be dismissed; 4) the outcome of the reexamination may encourage a settlement without the further use of the Court; 5) the record of reexamination would likely be entered at trial, thereby reducing the complexity and length of the litigation; 6) issues, defenses and evidence will be effectively limited in pre-trial conferences after a reexamination; and 7) the cost of litigation will likely be reduced. Datatreasury Corp. v. Wells Fargo & Co., 490 F.Supp.2d 749, 754 (E.D.Tex.2006). Nevertheless, each court considering a motion to stay pending reexamination must properly weigh the enumerated factors on a case-by-case basis. Datatreasury, 490 F.Supp.2d at 755 ("The Court notes that each motion to stay pending reexamination filed in this Court is considered on a caseby-case basis with each cause of action presenting distinct circumstances; there exists no policy in this Court to routinely grant such motions."). It is also pertinent to note that early versions of what became the reexamination statutes expressly provided for a stay of court proceedings during reexamination. See Gould v. Control Laser Corp., 705 F.2d 1340, 1342 (Fed.Cir.1983) (listing legislative history). Yet, Congress deemed such an express provision unnecessary because "[i]t is anticipated that these measures [reexamination proceedings] provide a useful and necessary alternative for challengers and for patent owners to test the validity of United States patents in an efficient and relatively inexpensive manner." Id. (quoting H.R.Rep. No. 1307 (1980)). Thus, litigation and reexamination are not mutually exclusive alternatives for the parties to test the validity of a patent—they may be concurrent proceedings. See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427-28 (Fed.Cir.1988) (rejecting argument that it would waste the PTO's resources to continue a reexamination during a trial and holding that the Commissioner of Patents and Trademarks had no authority to stay patent reexamination pending outcome of case in district court). DISCUSSION In this case, FedEx argues that a stay is warranted because 1) BarTex will not suffer prejudice; 2) staying the case will narrow the issues for trial; and 3) FedEx filed this Motion as soon as practicable. BarTex responds that 1) it will be "unduly prejudiced" by a stay; 2) the issues will not be simplified; and 3) because discovery is underway and a trial date has been set, it is too late in the litigation to stay the proceedings pending reexamination. I. Prejudice FedEx contends that BarTex will suffer no undue prejudice if the Court stays the case. See Photoflex Products, Inc. v. Circa 3 LLC, No. C 04-03715, 2006 WL 1440363 at *2 (N.D.Cal. May 24, 2006) ("The delay inherent to the reexamination process does not constitute, by itself, undue prejudice."). FedEx argues that BarTex will not suffer any harm if FedEx continues to make and use the accused products during the stay because BarTex *651 is a patent holding company that does not make or sell any product or service covered by the '377 patent. It points out that, if BarTex ultimately prevails, it will still be entitled to collect damages accrued during the stay. See Patlex Corp. v. Mossinghoff, 758 F.2d 594, 603 (Fed.Cir.1985). FedEx also argues that BarTex will suffer no tactical disadvantage because the estoppel provisions of 35 U.S.C. § 315(c) will prevent FedEx from retrying the same validity arguments at trial that it raises in front of the PTO. BarTex counters that it will be prejudiced because the inter partes reexamination process is extremely time consuming. It argues that, despite the Patent Act's prescription that all reexaminations "be conducted with special dispatch," 35 U.S.C. § 305 (1980), the reexamination process could take years to complete. See Orion IP, LLC v. Mercedes-Benz, USA, LLC, No. 6:05-cv-322, 2008 WL 5378040, at *8 (E.D.Tex. Dec. 22, 2008) (noting that the reexamination procedure, in conjunction with a possible appeal to the Board of Patent Appeals and Interferences, "could take years"); see also Stormedia Texas, LLC v. CompUSA, Inc., No. 2:07-cv-025, 2008 WL 2885814, at *2 (E.D.Tex. July 23, 2008) (noting that PTO has not provided guidance on length of time required for reexaminations and therefore the "potential delay for an indefinite period would likely prejudice [the plaintiff]"). BarTex directs the Court's attention to recent studies analyzing the inter partes reexamination process. See ESN, LLC v. Cisco Sys., Inc., No. 5:08-cv-20, slip op. at 3-4 (E.D.Tex. Nov. 20, 2008) (citing Roger Shang & Yar Chaikovsky, Inter Partes Reexamination of Patents: An Empirical Evaluation, 15 Intell. Prop. L.J. 1, 16 (2006)). Although the PTO reports that the average pendency of an inter partes reexamination is 28.5 months,[1] if the patent holder decides to defend its rights, the process is likely to require an average of 43.5 months. Id. (citing Institute for Progress, Reexamining Inter partes Reexam (2008)). If the decision is appealed, it is estimated that the entire process will require an average of 78.4 months, although this estimate may be subject to change since there has never been an inter partes reexamination that has gone through the entire reexamination process, including appeal, and made it to completion. Id. BarTex argues that granting the stay would prevent BarTex from licensing the '377 patent for 6.5 years and eviscerate BarTex's right to exclusivity until at least 2016. BarTex also argues that it will be tactically disadvantaged by a stay. Because the stay could last over six years, witnesses could become unavailable, their memories may fade, and evidence may be lost. See Gladish v. Tyco Toys, Inc., 1993 WL 625509 at *2 (E.D.Cal.1993). In addition, the estoppel provisions of 35 U.S.C. § 301 do not apply to newly discovered prior art or non-printed publications. Thus, BarTex argues that FedEx may still be able to challenge the validity of the '377 patent after the reexamination process is completed. The Court finds that BarTex would be unduly prejudiced if the Court were to grant a stay. A stay could potentially prevent BarTex from enforcing its rights for 6.5 years. This extreme delay, which has been exacerbated by FedEx's delay in requesting reexamination, could allow for a *652 loss of critical evidence as witnesses could become unavailable, their memories may fade, and evidence may be lost. See Gladish, 1993 WL 625509 at *2. Furthermore, BarTex may still be entitled to a permanent injunction, even though it does not practice its patent. See eBay Inc. v. MereExchange, LLC, 547 U.S. 388, 393, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (declining to adopt a categorical rule that non-practicing patent-holders cannot receive injunctive relief); see, e.g., Commonwealth Sci and Indus. Research Org. v. Buffalo Tech. Inc., 492 F.Supp.2d 600, 607-08 (E.D.Tex.2007), rev'd on other grounds by, 542 F.3d 1363 (Fed.Cir.2008) (granting permanent injunction to a nonpracticing patent owner). While BarTex will be able to collect damages for infringement occurring during the stay, BarTex may still suffer from irreparable harm during that time. Should FedEx be found to infringe the asserted patent in this litigation, damages alone may not fully compensate BarTex for a lengthy delay resulting from reexamination. The right to exclude, even for a non-practicing entity, may be the only way to fully vindicate the patentee's ownership in the patent. See Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1327-1328 (Fed.Cir.2008) (explaining that with regard to the first factor in a court's analysis whether to issue a permanent injunction, "[i]n view of [the right to exclude others], infringement may cause a patentee irreparable harm not remediable by a reasonable royalty [or lost profits]"); cf. Spa Syspatronic, AG v. Verifone, Inc., No. 2:07-cv-416, 2008 WL 1886020 at *2 (E.D.Tex. Apr. 25, 2008) (finding that a stay would not prejudice the plaintiff because it could not secure a permanent injunction due to the patent term expiring prior to trial). Therefore, the Court finds that BarTex would suffer undue prejudice resulting from a stay in this case and this factor weighs against granting a stay. Moreover, motions to stay are considered on a case-by-case basis and there exists no policy in this Court to routinely grant such motions. See Spa Syspatronic, AG, 2008 WL 1886020 at *2; Datatreasury, 490 F.Supp.2d at 755. To do so would turn reexamination into an administrative process that must be completed before a suit for patent infringement may move forward. Yet, patents are presumed valid, 35 U.S.C. § 282, and reexamination is not required before bringing suit. The potential for use of the reexamination process as a dilatory tactic must be considered. Thus, this Court is hesitant to elevate this process—one that could take years—into a requisite procedure before a lawsuit may move forward. See Nidec Corp. v. LG Innotek Co., No. 6:07-cv-108, slip op. at 11 (E.D.Tex. Apr. 3, 2009); see also Orion IP, 2008 WL 5378040 at *8 (noting that the reexamination procedure, in conjunction with a possible appeal to the Board of Patent Appeals and Interferences, "could take years"). II. Simplification of Issues FedEx asserts that, no matter the outcome of the reexamination, the issues before this Court will be simplified. "If the reexamination proceeding invalidates or narrows a claim or claims, the issues at trial will be simplified." EchoStar Tech. Corp. v. TiVo, Inc., 2006 WL 2501494 at *4 (E.D.Tex. July 14, 2006). On the other hand, "to the extent the reexamination proceeding reaffirm[s] the claims at issue, the Court will then have the benefit of the PTO's expert analysis of the prior art that allegedly invalidates or limits the claims." Id. Furthermore, FedEx argues that it is highly likely that at least some of the claims of the '377 patent will be rejected. FedEx points out that the PTO rejected all claims of the '377 patent in its initial office action. *653 BarTex asserts that reexamination is not a substitute for the proceedings in this Court, and therefore a stay will not necessarily simplify the issues for trial. FedEx may still challenge the validity of the '377 patent with non-printed prior art references or newly discovered prior art, even if the patent survives reexamination will all claims confirmed. In addition, BarTex contends that the PTO routinely rejects all claims in an initial office action, and that this rejection is not a reliable prediction of the final outcome of the reexamination. The Court is not fully convinced that reexamination will simplify the issues for trial in this case. It is difficult to gauge, at this early stage in the reexamination process, how likely it is that any of the '377 patent claims will ultimately be cancelled or modified through amendment. Based on the evidence currently before the Court, the Court cannot determine the statistical significance of the PTO's initial rejection of all claims. The Court does recognize that, based on the PTO's most recent report, 70% of all inter partes reexaminations result in all claims being cancelled and 21% result in claim changes. However, these statistics are based on only 44 inter partes reexamination certificates that have issued since the practice was instituted in 2001. See United States Patent and Trademark Office, Inter Partes Reexamination Filing Data—December 31, 2008, available at www.uspto. gov/web/patents/documents/inter_partes. pdf. Because these statistics are based on such a small sample, they are of limited value. See ESN, LLC, No. 5:08-cv-20, slip op. at 7. Further, FedEx may still challenge the validity of the '377 patent with non-printed prior art references or newly discovered prior art. Thus, it is not clear whether the invalidity issues will be clarified much, if at all. Nonetheless, the Court recognizes that a stay pending reexamination could simplify some issues currently before the Court. For these reasons, the Court finds that this factor weighs only slightly in favor of granting a stay in the instant litigation. III. Timing This case was filed on August 16, 2007. FedEx filed its request for reexamination sixteen months later on December 18, 2008. At this point, this case has been pending for twenty months. The parties are actively engaged in discovery—including, for example, exchanging requests for production of documents and interrogatories, producing documents pursuant to the Discovery Order, and exchanging the initial disclosures required by local patent rules 3-1-3-4. Claim construction has essentially been completed because the parties have agreed to constructions of all terms, and this case will be ready for trial in approximately nine months. As a result, this case is no longer in its infancy. FedEx argues that it has been diligent in filing this Motion because, to date, little discovery has actually been conducted. FedEx contends that it delayed filing its request for reexamination because BarTex was involved in a dispute over ownership of the '377 patent until November 3, 2008. FedEx argues that it had no reason to request reexamination if it was later discovered that BarTex did not own the '377 patent. Thus, FedEx filed its request a little over a month after the ownership dispute was settled. While FedEx's concerns over ownership of the '377 patent may offer some explanation as to its delay in seeking reexamination, the Court is not persuaded by FedEx's arguments. A compelling argument can be made that FedEx had ample opportunity to seek reexamination prior to the ownership issue even being raised in this Court. Moreover, when the ownership issue was raised in this Court, it was dealt *654 with in some detail over a period of multiple months. FedEx did not request a stay of this litigation while the ownership issue was pending nor did FedEx take a position on the issue. Missing from FedEx's assessment of the timing of the reexamination request is an acknowledgment of the fact that it was accused of infringement in August of 2007. Irrespective of the ownership issue arising thereafter, FedEx had every reason to, as promptly as possible, seek reexamination and a stay if that is the option it chose. In sum, the Court cannot conclude that FedEx has acted with requisite diligence in seeking reexamination and a stay. This case has been pending for twenty months, and FedEx did not seek reexamination for sixteen months after the case was filed. Currently, the parties are fully engaged in discovery with claim construction essentially completed and a trial date set. The circumstances in this case lead the Court to conclude that, given the advanced stage of the proceedings in this case, the third and final factor weighs against granting a stay. CONCLUSION The Court finds that BarTex would suffer undue prejudice resulting from a stay in this case; the issues in this case may not be significantly simplified as a result of the reexamination; and the instant Motion was filed at an advanced stage in the proceedings. Thus, the first and third factors weigh heavily against a stay, while the second factor weighs only slightly in favor. On balance, a stay is not appropriate in this case. For all the foregoing reasons, FedEx's Motion to Stay Pending Reexamination is DENIED. So ORDERED. NOTES [1] The PTO's most recent report indicates that the average pendency for inter partes reexamination (without appeal) is 34.9 months. See United States Patent and Trademark Office, Inter Partes Reexamination Filing Data—December 31, 2008, available at www.uspto.gov/ web/patents/documents/inter_partes.pdf.

621 N.W.2d 450 (2001) George C. TUREK, Complainant, v. ATTORNEY GRIEVANCE COMMISSION, Respondent. No. 116851. Supreme Court of Michigan. February 6, 2001. On order of the Court, the complaint for mandamus is considered, and relief is DENIED, because the Court is not persuaded that it should grant the requested relief. WEAVER, J., dissents and states as follows: I would remand the case to the Attorney Grievance Commission for reconsideration of its decision in this case in light of Grievance Administrator v. Lopation, 462 Mich. 235, 612 N.W.2d 120 (2000).

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 4, 2017 Decided May 23, 2017 No. 16-1092 DELAWARE RIVERKEEPER NETWORK AND MAYA VAN ROSSUM, THE DELAWARE RIVERKEEPER, PETITIONERS v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, INTERVENOR On Petition for Review of Orders of the Federal Energy Regulatory Commission Aaron Stemplewicz argued the cause and filed the briefs for petitioners. Holly E. Cafer, Senior Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were Robert H. Solomon, Solicitor, and Lisa B. Luftig, Attorney. Karin L. Larson, Attorney, Federal Energy Regulatory Commission, entered an appearance.  2 John F. Stoviak argued the cause for intervenor. With him on the brief were Pamela S. Goodwin, Elizabeth U. Witmer, and Patrick F. Nugent. Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge, and EDWARDS, Senior Circuit Judge. EDWARDS, Senior Circuit Judge: This case involves three federal statutes: the Natural Gas Act (“NGA”), 15 U.S.C. § 717, et seq.; the Clean Water Act (“CWA”), formally titled the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251, et seq.; and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq. Although the Federal Energy Regulatory Commission (“FERC” or “Commission”) administers only the NGA, all three statutes apply to the disputed actions taken by the Commission in this case. On September 30, 2013, Transcontinental Gas Pipe Line Company, LLC (“Transco”) filed an application with FERC to construct and operate its proposed Leidy Southeast Project (“Leidy Project”). The project was designed to expand the capacity of Transco’s existing natural gas pipeline and add new facilities in Pennsylvania and New Jersey. Pursuant to the requirements of NEPA, FERC conducted an environmental review of the project and issued an environmental assessment (“EA”) on August 11, 2014. The EA found, with appropriate mitigating measures, “no significant impacts” associated with the Leidy Project. However, it required Transco to obtain “all applicable authorizations required under federal law” prior to FERC authorizing construction. Because it was understood that the Leidy Project might result in discharges into navigable waters, Transco was obligated by § 401 of the CWA to obtain a water quality certification from the state in which the discharge would originate before FERC could authorize any  3 activity that “may result” in such a discharge. See 33 U.S.C. § 1341(a)(1). The EA thus in turn required Transco to obtain this state certification before FERC would authorize any construction. On June 10, 2014, Transco applied for a § 401 certification from Pennsylvania’s Department of Environmental Protection. On December 18, 2014, before Pennsylvania had acted on Transco’s application, FERC issued a Certificate of Public Convenience and Necessity (“Certificate Order”) under the NGA conditionally approving the Leidy Project. The Certificate Order made it clear that FERC would not authorize any construction until Transco had obtained a § 401 certification from Pennsylvania. Delaware Riverkeeper Network, a nonprofit organization, timely sought rehearing of the Certificate Order before the Commission. FERC denied the request for rehearing. Delaware Riverkeeper Network and Maya van Rossum, the current Delaware Riverkeeper (together “Riverkeeper”), then petitioned for review in this court. Transco intervened in support of the Commission. Before this court, Riverkeeper contends that the Commission violated the CWA because it granted Transco’s request to construct and operate the Leidy Project prior to the issuance of Pennsylvania’s § 401 water quality certification. Riverkeeper also claims that the Commission violated NEPA in failing to establish an accurate baseline from which to conduct its environmental review of the Leidy Project. In particular, Riverkeeper argues that FERC misidentified numerous specially protected wetlands, and miscalculated both the cover type categorization of those wetlands and the total acreage of those wetlands. We find no merit in these claims and, therefore, reject the petition for review.  4 I. BACKGROUND A. Statutory Background Under the NGA, a natural gas pipeline company must obtain a Certificate of Public Convenience and Necessity from FERC prior to “undertak[ing] the construction or extension” of any natural gas facility for the transportation of natural gas in interstate commerce. 15 U.S.C. § 717f(c)(1)(A). FERC may place any reasonable conditions on the issuance of such a certificate “as the public convenience and necessity may require.” Id. § 717f(e). This court has jurisdiction to review challenges to certificates granted under the NGA, but petitioning parties must first seek rehearing before the Commission and may not raise any argument before this court that was not raised on rehearing. See 15 U.S.C. § 717r(b). Letter orders issued by FERC are also subject to review in this court subject to the same rehearing requirement. See 18 C.F.R. § 385.1902. In addition to the requirements of the NGA, § 401 of the CWA requires “[a]ny applicant for a Federal license or permit to conduct any activity including . . . the construction or operation of facilities, which may result in any discharge into the navigable waters,” to “provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate.” 33 U.S.C. § 1341(a)(1). The state must certify “that any such discharge will comply” with the CWA’s effluent limitations and other pollutant control requirements, including state-administered water quality standards. Id. The state may certify that there are no applicable limitations or standards for the discharge activity, or it may deny certification or waive the certification requirement. Id. But “[n]o license or permit shall be granted until the certification . . . has been obtained or has been waived.” Id. Any  5 limitation in a § 401 certification “shall become a condition” of the federal license or permit requiring such certification. Id. § 1341(d). Section 401 is an important part of the CWA, in which “Congress sought to expand federal oversight of projects affecting water quality while also reinforcing the role of States as the prime bulwark in the effort to abate water pollution.” Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 971 (D.C. Cir. 2011) (citation and internal quotation marks omitted). The state certification authority under § 401 is “‘[o]ne of the primary mechanisms’ through which [states] may exercise this role, as it provides them with ‘the power to block, for environmental reasons, local water projects that might otherwise win federal approval.’” Id. (quoting Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991)). The last statute at issue in this case is NEPA, which was enacted in part to “promote efforts which will prevent or eliminate damage to the environment and biosphere . . . [and] enrich the understanding of the ecological systems and natural resources important to the Nation.” 42 U.S.C. § 4321. As we recently explained: The Commission, in exercising its . . . authority, must comply with NEPA and its implementing regulations, which require that all federal agencies include an environmental impact statement (“EIS”) “in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1508.11. To determine whether an EIS is necessary, an agency first prepares an environmental assessment, 40 C.F.R. § 1508.9, which must include, among other information, a discussion  6 of “the environmental impacts of the proposed action,” id. § 1508.9(b). “Indirect effects . . . are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. § 1508.8(b). “Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non- Federal) or person undertakes such other actions.” Id. § 1508.7; see also id. § 1508.8. After preparing an environmental assessment, an agency may conclude that the proposed action would have no significant impact (often referred to as a “FONSI,” for “finding of no significant impact”) in lieu of issuing an EIS. Id. §§ 1508.9(a)(1), 1508.13. Sierra Club v. FERC, 827 F.3d 59, 63 (D.C. Cir. 2016). For either an EA or an EIS, the purposes of NEPA require the Commission to “consider and disclose” the environmental effects of the actions it certifies. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 96 (1983). So long as the agency takes a hard look at the environmental consequences, NEPA “does not mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). B. Factual and Procedural Background Transco maintains an interstate natural gas pipeline that runs from Texas to New York City, passing through Pennsylvania. In September 2013, Transco applied to FERC for a Certificate of Public Convenience and Necessity for the Leidy Project, which would add approximately thirty miles of looping to Transco’s existing pipeline in Luzerne and Monroe Counties, Pennsylvania and parts of New Jersey, to meet  7 increasing energy demands. On August 11, 2014, FERC issued a finding of no significant impact and published its review of the environmental consequences of the Leidy Project in a 217- page EA. Environmental Assessment, Joint Appendix (“JA”) 168–331. Among a number of conditions, Environmental Condition No. 9 of the EA required Transco to obtain and file with the Secretary of the Commission “all applicable authorizations required under federal law (or evidence of waiver thereof)” prior to FERC authorizing construction. Id. at 324. The EA identified § 401 state water quality certifications as required authorizations. The EA also discussed mitigation for the Leidy Project’s impact on Pennsylvania wetlands and concluded that the project’s proposed pipeline gas flow velocities were safe. Transco had timely applied for a § 401 certification from Pennsylvania’s Department of Environmental Protection on June 10, 2014. However, on December 18, 2014, FERC issued a Certificate Order to Transco, conditionally approving the Leidy Project, before Pennsylvania had acted on Transco’s § 401 request. The Certificate Order adopted the conditions of the EA, including Environmental Condition No. 9, which clearly stated that Transco was required to obtain all applicable federal authorizations, including a § 401 certification from Pennsylvania. FERC was thus clear that it would not authorize any construction before the necessary § 401 certifications had been obtained. On January 16, 2015, Riverkeeper sought rehearing of the Certificate Order before the Commission. During the early months of 2015, after the conditional Certificate Order had been issued, the Commission authorized Transco via letter orders to conduct certain “pre-construction” activities, including tree-felling. Riverkeeper moved the Commission to stay the tree-felling activity. FERC denied this request. Riverkeeper never sought rehearing of this action or of  8 any of FERC’s letter orders. Instead, on March 15, 2015, Riverkeeper filed a petition for an emergency stay with this court. The Petition was denied on March 19, 2015. Del. Riverkeeper Network v. FERC, No. 15-1052 (D.C. Cir. Mar. 19, 2015), ECF No. 1543345. By the end of March 2015, Transco had begun felling trees, as authorized, along a right- of-way by the projected pipelines, including in Pennsylvania wetlands. On April 6, 2015, Pennsylvania’s Department of Environmental Protection issued a § 401 certification for the Leidy Project. Riverkeeper challenged the Pennsylvania certification by filing a petition for review in the Third Circuit, but the petition was denied. Del. Riverkeeper Network v. Sec’y Penn. Dep’t of Envtl. Prot., 833 F.3d 360, 385–88 (3d Cir. 2016) (upholding Pennsylvania’s decision to issue the § 401 certification). On March 3, 2016, FERC denied Riverkeeper’s request for rehearing. Riverkeeper timely petitioned this court for review of FERC’s EA, Certificate Order, and order denying rehearing. Transco intervened. II. ANALYSIS A. Standard of Review “[I]n evaluating the Commission’s authority to issue [a] challenged certificate of public convenience and necessity[,] [w]e . . . review[] the Commission’s interpretation of its authority to issue such a certificate by applying the two-step analytical framework of Chevron.” Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1315 (D.C. Cir. 2015) (citing Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984)). Under the Chevron framework,  9 an agency’s power to regulate “is limited to the scope of the authority Congress has delegated to it.” Am. Library Ass’n v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005). Pursuant to Chevron Step One, if the intent of Congress is clear, the reviewing court must give effect to that unambiguously expressed intent. If Congress has not directly addressed the precise question at issue, the reviewing court proceeds to Chevron Step Two. Under Step Two, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are . . . manifestly contrary to the statute.” Chevron, 467 U.S. at 843–44. Where a “legislative delegation to an agency on a particular question is implicit rather than explicit,” the reviewing court must uphold any “reasonable interpretation made by the administrator of [that] agency.” Id. at 844. But deference to an agency’s interpretation of its enabling statute “is due only when the agency acts pursuant to delegated authority.” Am. Library Ass’n, 406 F.3d at 699. EDWARDS, ELLIOTT, & LEVY, FEDERAL STANDARDS OF REVIEW 166–67 (2d ed. 2013). A court does not defer to an agency’s interpretation of a statute that it is not charged with administering. See Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 138 n.9 (1997). Therefore, we do not accord Chevron deference to the Commission’s interpretation of the CWA because the Environmental Protection Agency, not FERC, administers the statute. See Alcoa Power, 643 F.3d at 972. Our review of the requirements of the CWA is de novo. Id.  10 Finally, we apply “a ‘rule of reason’ to an agency’s NEPA analysis and ha[ve] repeatedly refused to ‘flyspeck’ the agency’s findings in search of ‘any deficiency no matter how minor.’” Myersville, 783 F.3d at 1322–23 (citations omitted). Because “NEPA’s requirements are ‘essentially procedural,’” so “long as the agency’s decision is ‘fully informed’ and ‘well- considered,’ it is entitled to judicial deference.” Nat. Res. Def. Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (citations omitted). Especially “[w]hen considering FERC’s evaluation of ‘scientific data within its technical expertise,’ we afford FERC ‘an extreme degree of deference.’” Myersville, 783 F.3d at 1308 (citation omitted). B. Jurisdiction FERC argues that Riverkeeper’s Clean Water Act claim “may no longer present an ongoing case or controversy” as “[i]t is not clear what relief would be available to remedy Riverkeeper’s sequencing claims—if they prevailed—where the [state] water quality certifications have been issued and affirmed on appeal [by the Third Circuit].” Br. for FERC at 22 n.3. In other words, according to FERC, even if the agency issued the conditional Certificate Order prematurely, no remedy is needed for the sequencing error because the state water quality certifications have been issued and found lawful. FERC’s argument is misguided. First, the principal issue before the Third Circuit was whether Pennsylvania “was required to engage in an environmental review prior to issuing a Water Quality Certification.” Del. Riverkeeper, 833 F.3d at 385. Here, in contrast, the question raised by Riverkeeper is whether the Commission (not Pennsylvania) violated the sequencing requirement of the CWA by issuing its Certificate Order before Pennsylvania issued its § 401 certification. These are entirely  11 distinct issues and the former does not subsume the latter. FERC does not argue otherwise. Furthermore, Riverkeeper’s claim is not moot because once the CWA’s sequence has been flouted, the only fix is to start the process over. Riverkeeper asks this court to “rescind[] the Commission’s Orders, or remand[] the decision to ensure that the Orders comply with the [Clean Water Act] and NEPA.” Br. for Pet’rs at 15. We could provide Riverkeeper the remedy it seeks by rescinding the conditional Certificate Order. That would halt the project and force FERC to follow the proper sequence of action. See Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 272 (D.C. Cir. 2015) (rejecting similar mootness argument because granting relief on the NEPA claim would undo the conditional certificate, which could start the CWA sequence over). Perhaps FERC means to suggest that no effectual relief can be granted because vacating the Certificate Order and remanding the matter to the agency would almost certainly have no real world consequences. In other words, in FERC’s view, even if the court were to remand the case, the agency could immediately re-issue the conditional Certificate Order because the state water quality certifications have been issued. Such a response by FERC is not unlikely, but it is surely not guaranteed. In any event, “[c]ourts often adjudicate disputes where the practical impact of any decision is not assured.” Chafin v. Chafin, 568 U.S. 165, 133 S. Ct. 1017, 1025 (2013). Therefore, we could grant Riverkeeper vacatur of FERC’s conditional Certificate Order even if its victory might be short lived. “Such relief would of course not be ‘fully satisfactory,’ but with respect to the case as whole, ‘even the availability of a partial remedy is sufficient to prevent [a] case from being moot.’” Id. at 1026 (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam)).  12 In sum, we agree with Riverkeeper that we have jurisdiction to consider its challenge to the Certificate Order on the ground that FERC violated the sequencing requirement of the CWA by issuing its Certificate Order before Pennsylvania issued its § 401 certification. We therefore proceed to the merits of Riverkeeper’s claims under both the CWA and NEPA. C. Riverkeeper’s Challenges Under the CWA Riverkeeper argues that the Commission violated § 401 of the CWA by “issu[ing] its approval of the [Leidy] Project prior to Pennsylvania’s issuance of its Clean Water Act Section 401 water quality certificat[ion].” Br. for Pet’rs at 19. We disagree. We hold that the sequencing requirement of § 401 was not triggered because the Commission’s conditional approval of the Leidy Project construction did not authorize any activity which might result in a discharge in navigable waters. We decline to review Riverkeeper’s alternative CWA challenge to the letter orders approving pre-construction tree- felling. The NGA requires that, prior to challenging an order before this Court on review, a party first must file a petition for rehearing with the Commission and then specify the challenged orders in a petition for judicial review. 15 U.S.C. §§ 717r(a), (b). Because Riverkeeper failed to seek rehearing of any of the disputed letter orders authorizing pre-construction activities, those individual decisions are not properly before this court.  13 1. The Sequencing of the Certificate Order and the § 401 Certification Section 401 of the CWA requires that “[a]ny applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters” must first obtain a water quality certification from the state in which the discharge will originate, and that “[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived.” 33 U.S.C. § 1341(a)(1). Transco argues preliminarily that the Commission’s Certificate Order is not a “license or permit” subject to the CWA because it is a “certificate[] of public convenience and necessity.” Br. for Transco at 16; see id. at 15–19. We reject this argument out of hand. The Commission agrees with Riverkeeper that its Certificate Order was a “license or permit” potentially subject to the requirements of § 401. Furthermore, Transco’s assertion comes too late: before the Commission, Transco never claimed that § 401 was inapplicable and the company applied to Pennsylvania for the certification without protest. Finally, it is clear that Congress intended § 401 to apply broadly to federal approval of potential pollution activity. The Supreme Court has noted that: State certifications under § 401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now § 401 was first proposed: “No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a  14 Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.” 116 Cong. Rec. 8984 (1970). These are the very reasons that Congress provided the States with power to enforce “any other appropriate requirement of State law,” 33 U.S.C. § 1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 386 (2006). The CWA in its entirety “provides for a system that respects the States’ concerns” in application to all federal agencies. Id. And the act of “licensing” or “permitting” clearly extends to “certifying,” which is merely a different name for the stamp of federal approval Congress intended to capture. Transco’s reliance on the doctrine of expressio unius, that Congress’s selection of “license or permit” excludes a “certificate,” is misplaced because that doctrine applies “only when ‘circumstances support[] a sensible inference that the term left out must have been meant to be excluded.’” NLRB v. SW Gen., Inc., 137 S. Ct. 929, 933 (2017) (citation omitted). Here, the broad sweep of the statute raises no such inference. The principal issue here is not whether FERC’s disputed Certificate Order is a “license or permit” covered by the CWA, but whether it approved “activity . . . which may result in any discharge” and thus triggered the requirements of the CWA. 33 U.S.C. § 1341(a)(1). We have previously stated that the  15 “logically antecedent” question under § 401 is whether the disputed federal permit or license “is subject to the provisions of Section 401(a)(1)” in the first place. North Carolina v. FERC, 112 F.3d 1175, 1186 (D.C. Cir. 1997). If the activity that FERC approved would not result in a discharge, then the sequencing requirement of § 401 was not “trigger[ed].” See id. at 1188. Here, the record indicates that the Certificate Order did not authorize any activity that could result in a discharge. Instead, the conditional Certificate Order was merely a first step for Transco to take in the complex procedure to actually obtaining construction approval. Br. for FERC at 25–28. And, as explained above, FERC required Transco to obtain the appropriate state agency permits, including a § 401 certification from Pennsylvania, prior to FERC granting Transco permission to proceed with activity that could result in a discharge. Judge Rogers’ concurring statement in Gunpowder Riverkeeper, which we adopt, disposes of Riverkeeper’s claim in this case: The plain text of the Clean Water Act does not appear to prohibit the kind of conditional certificate the Commission issued here. On its face, section 401(a)(1) does not prohibit all “license[s] or permit[s]” issued without state certification, only those that allow the licensee or permittee “to conduct any activity . . . which may result in any discharge into the navigable waters.” 33 U.S.C. § 1341(a)(1). Petitioner has pointed to no activities authorized by the conditional certificate itself that may result in such discharge prior to the state approval and the Commission’s issuance of a Notice to Proceed.  16 807 F.3d at 279 (Rogers, J., dissenting in part and concurring in the judgment) (second emphasis added); see also Myersville, 783 F.3d at 1320–21 (upholding FERC’s conditional approval of a natural gas facility construction project where FERC conditioned its approval on the applicant securing a required federal Clean Air Act air quality permit from the state); Del. Dep’t. of Nat. Res. & Envtl. Control v. FERC, 558 F.3d 575, 578–79 (D.C. Cir. 2009) (holding Delaware suffered no concrete injury from FERC’s conditional approval of a natural gas terminal construction despite statutes requiring states’ prior approval because FERC conditioned its approval of construction on the states’ prior approval). Because the Certificate Order expressly conditioned FERC’s approval of potential discharge activity on Transco first obtaining the requisite § 401 certification, and was not itself authorization of any potential discharge activity, the issuance of the Certificate Order before Pennsylvania’s issuance of its § 401 certificate did not violate § 401 of the CWA. 2. The Letter Orders Riverkeeper alternatively contends that the Commission’s letter orders authorizing pre-construction tree-felling impermissibly approved activity that might have resulted in a proscribed discharge before Pennsylvania could issue its water quality certification. In response, the Commission contends that its letter orders did not trigger the requirements of § 401 because the U.S. Army Corps of Engineers determined that Transco’s “proposed tree cutting activities would not result in a discharge,” JA 638, and FERC relied on the Corps’ determination, JA 644–45. We need not decide this issue, however, because Riverkeeper did not independently challenge the letter orders. Neither FERC nor Riverkeeper dispute that  17 the letter orders reflected final agency action and were separately appealable after rehearing before the Commission. See 18 C.F.R. § 385.1902(a)–(b). But as it conceded at oral argument and in its briefing, Reply Br. for Pet’rs at 3–5, Riverkeeper did not request rehearing of the letter orders, so the letters are not properly before us for review. See 15 U.S.C. § 717r(a)–(b); see also Darby v. Cisneros, 509 U.S. 137, 145 (1993) (recognizing the statutory rehearing requirement of § 717r as mandatory). In sum, we need not decide whether the letter orders impermissibly approved activity that might have resulted in a discharge before Pennsylvania issued its § 401 certification. D. The Commission’s Wetlands Analysis Riverkeeper contends that FERC violated NEPA by misclassifying wetlands in two ways: (1) under Pennsylvania’s own state classification system; and (2) under the “Cowardin” classification system. We reject both challenges. FERC did not purport to rely on Pennsylvania’s classification system and Riverkeeper does not show how any misclassification under the Cowardin system was prejudicial error. Nowhere in the EA does FERC even discuss, much less rely on, the application of Pennsylvania’s system. In Appendix I, the EA includes a secondary reference to wetlands as either “exceptional” or “other,” which is pursuant to the Pennsylvania Administrative Code. 25 Penn. Admin. Code § 105.17. See JA 330–31. But the wetlands discussion in the EA itself does not use the terms “exceptional” or “other,” and does not refer to the Pennsylvania system at all. As Riverkeeper concedes, FERC was not bound to use Pennsylvania’s classification system. And the EA clearly  18 explains that the “field delineations of wetlands” in Pennsylvania were performed according to the U.S. Army Corps of Engineers’ “Wetlands Delineation Manual (COE, 1987),” JA 202, and that delineated wetlands “were classified as described in Cowardin, et al., (1979),” JA 203. The EA thus classifies the wetlands as either Palustrine Forested, Palustrine Scrub-Shrub, or Palustrine Emergent wetlands. These three Palustrine wetland types are consistent with the Cowardin classification system referenced in the Corps’ delineation manual. See U.S. ARMY CORPS OF ENG’RS, WETLANDS DELINEATION MANUAL 3 (1987); LEWIS M. COWARDIN, ET AL., CLASSIFICATION OF WETLANDS AND DEEPWATER HABITATS OF THE UNITED STATES 10–13 (1979). On rehearing, FERC again rejected Riverkeeper’s contention that the agency had used Pennsylvania’s system: “As indicated in the EA and the December 18 [Certificate] Order, Transco’s wetlands delineations were conducted using the Corps’ Wetlands Delineation Manual.” JA 716. Moreover, FERC made it clear that each state was to oversee its own delineation, clearly implying this was to be done for purposes of classification: “It is at the discretion of the Corps [and] the Pennsylvania Department of Environmental Protection . . . to determine whether Transco’s wetland delineations comply with each agency’s permit application process, prior to issuing the appropriate water quality permit.” JA 514; see also JA 203 (using “delineate[]” in reference to identifying cover types). There is no evidence the secondary wetlands identifications in Appendix I as “exceptional” or “other,” even if erroneous, had any effect on FERC’s consideration of the environmental impact of the Leidy Project. Accordingly, there is no NEPA violation here. Riverkeeper’s second wetlands argument attacks the Cowardin classification system that the Commission actually  19 used. Riverkeeper contends that FERC “failed to accurately account for the expected ground disturbance impacts that will result from the [Leidy] Project’s construction and operational activity,” Br. for Pet’rs at 44, because it misidentified the cover types of fourteen wetlands – totaling approximately 3.8 acres that would be impacted by operation or construction – pursuant to the Cowardin system, see id. at 44–49. For example, Riverkeeper argues that aerial photographs show that a wetland classified as Palustrine Emergent (non-forested) was “clearly” forested and therefore should have been classified as Palustrine Forested. Id. at 46. However, Riverkeeper does not explain how this inexorably leads to the conclusion that FERC failed to accurately account for the Leidy Project’s impact on the environment. Indeed, the ultimate implication Riverkeeper raises for this alleged erroneous classification is an “alteration of wetland value due to vegetation clearing.” Id. at 45 (quoting JA 205). But the EA identifies only one difference in vegetation clearing: the time it takes for the three different types of wetlands to re-vegetate. See JA 205. Riverkeeper does not raise any unaccounted-for consequences of this. In other words, even assuming FERC misclassified a small area of Pennsylvania wetlands, this merely means the Leidy Project will result in a longer re-vegetation process for some wetlands, and a shorter re-vegetation process for others. Riverkeeper fails to explain how this caused FERC’s mitigation plan to be significantly deficient. What we see from the record in this case is that FERC responsibly addressed Riverkeeper’s misclassification argument in its Certificate Order. The Commission stated that it relied on its classification only to “disclose and evaluate potential impacts on wetlands and to serve as a starting point for the development of protective mitigation.” JA 514. FERC thus disclosed its methodology and purpose as a starting point for mitigation, which would subsequently involve the Corps  20 and state agencies to further oversee mitigation. See id.; JA 716–17 (order denying rehearing). It seems clear here that FERC took the requisite “hard look” at the impact of the Leidy Project on the environment. Hodel, 865 F.2d at 294 (quoting Izaak Walton League of America v. Marsh, 655 F.2d 346, 371 (D.C. Cir. 1981)). Even if FERC technically erred in some of its classifications, Riverkeeper has not shown any prejudice by virtue of the agency “fail[ing] to comply precisely with NEPA procedures.” Nevada v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006); see also Hodel, 865 F.2d at 295–97 (refusing to remand despite an agency error because it had “serve[d] NEPA’s informational function”). E. The Commission’s Gas Flow Velocity Analysis In its final challenge, Riverkeeper contends that FERC “repeatedly failed to disclose information addressing both the safety and independent viability” of the Leidy Project’s projected pipeline gas flow velocities. Br. for Pet’rs at 57. This argument rests on Riverkeeper’s claims that FERC failed to consider and disclose (1) key information about Transco’s projected gas flow velocities, (2) the project’s interdependence on past or future pipeline projects, and (3) the safety risks of its gas flow velocities. Id. at 50–60. Riverkeeper also contends that FERC treated the Leidy Project differently than a similarly situated project. We find no merit in these claims. First, the record belies Riverkeeper’s claim that FERC withheld critical information regarding the projected gas flow velocities. Riverkeeper asserts that it never received answers to nine questions it asked, regarding, inter alia, data about the pipe diameter, grade, wall thickness, and gas flow rates and pressures. Id. at 54–55. The record shows, however, that FERC and Transco responded to Riverkeeper’s queries and made it clear that the flow diagrams contained in Exhibits G and G-II  21 answered the questions that had been raised. JA 159. On appeal, Riverkeeper summarily asserts that the cited exhibits were non-responsive to its questions, but it does not explain how so. In fact, the record before us shows that Riverkeeper was invited to view Transco’s hydraulic flow modeling software, used to project gas flow velocity, via video conference or in person (due to the software’s proprietary nature). Riverkeeper concedes that this offer was made but asserts it “made the decision” to “not waste . . . limited time and resources to fly their expert from Washington to Texas” to view the software. Reply Br. for Pet’rs at 24–25. This is hardly a compelling response, especially since Riverkeeper could have viewed the modeling software via video conferencing. In sum, on the record before us, we have no basis upon which to credit Riverkeeper’s vague and unsubstantiated assertions that FERC withheld key data from the public. Indeed, the record reflects that FERC made every effort to comply with requests for information and no information was withheld from Riverkeeper. Second, Riverkeeper contends that the EA’s data on the projected gas flow velocity was insufficient and, therefore, it could not review the dependence of the Leidy Project on future pipeline expansions. Riverkeeper says the information is important because FERC’s regulations require the agency to review connected, cumulative, or similar actions. See 40 C.F.R. § 1508.25(a); Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1309 (D.C. Cir. 2014). In support of this claim, Riverkeeper points to this court’s decision in Delaware Riverkeeper Network. That case is plainly distinguishable, however. There, the court determined that FERC had impermissibly segmented NEPA review by approving one of  22 four “indisputably related and significantly ‘connected’” pipeline upgrade projects without looking at the projects’ cumulative impact. Id. at 1313–14. Here, in contrast, FERC evaluated the cumulative impact of recent related projects, see JA 320, and found that “[t]he location of any future expansion facilities is entirely speculative.” JA 499. Riverkeeper offers no evidence to the contrary. Third, Riverkeeper alleges that it presented expert evidence to FERC that Transco’s proposed gas flow velocities were potentially unsafe, and these concerns were left “wholly unanswered and unrebutted.” Br. for Pet’rs at 57. The record indicates otherwise. The EA concluded that Transco’s proposed gas flow velocities, not to exceed 60-61 feet per second, were safe based on an American Petroleum Institute report that gave a conservative guideline for maximum flow velocity as 100 feet per second for pipelines exposed to liquid droplet erosion. The Commission concluded that Transco’s 60- 61 feet per second maximum flow velocity was safe, especially since Transco’s pipelines would not be subject to liquid droplets. JA 498. In both instances, FERC highlighted the fact that Riverkeeper did not “cite any industry or government standard, regulation, or study to support its position” when expressing its concern that gas flow velocities beyond 50 feet per second would be unsafe. JA 315; see JA 496. We therefore reject Riverkeeper’s claims, which are based on sheer speculation, that FERC erred in its determinations regarding the safety of the Leidy Project’s gas flow velocities. Finally, we reject Riverkeeper’s contention that FERC treated similarly situated parties differently and, therefore, the agency’s determinations on gas flow velocity are arbitrary and capricious. Br. for Pet’rs at 57–60. In 2011, FERC determined that a pipeline project, the Northeast Upgrade Project, was not hydraulically feasible because its gas flow velocity would  23 exceed 40 feet per second. Riverkeeper thus asserts that FERC’s approval of the Leidy Project’s gas flow velocity of 60 feet per second is unjustified. The two projects are quite different, however. The Northeast Upgrade Project proposed adding compression to an existing 24-inch diameter pipeline, without adding additional looping. See Br. for FERC at 44. In contrast, the Leidy Project proposed to add looping of 42-inch diameter pipeline, nearly double that of the Northeast Upgrade Project. Riverkeeper is conspicuously silent as to these salient differences. The Commission’s NEPA review of the Leidy Project’s proposed gas flow velocities appears to be fully informed and well-considered. Riverkeeper presents no countervailing evidence. As such, the Commission’s judgment is “entitled to judicial deference.” Hodel, 865 F.2d at 294. III. CONCLUSION For the foregoing reasons, we deny the petition for review. So ordered. 

257 S.W.3d 354 (2008) Mark D. BOGAR, M.D., Appellant v. Dolores G. ESPARZA, Individually and as Administrator of the Estate of Katherine G. Guerrero; Deceased; Fernando Guerrero; Sofia G. Butschy; Gilberto Guerrero; Antonio Guerrero; Rosie G. Garza; Benito Guerrero; Josey G. Selvera; and Frances G. Faz, Appellees. No. 03-07-00037-CV. Court of Appeals of Texas, Austin. May 16, 2008. *357 Carla Garcia Connolly, Connolly & Castagna, L.L.P., Austin, for Appellant. Robert C. Alden, Don L. Davis, Byrd, Davis & Furman LLP, Austin, Stephen B. Pershing, Center for Constitutional Litigation, P.C., Washington, DC, for Appellees. Before Justices PATTERSON, PEMBERTON and WALDROP. OPINION BOB PEMBERTON, Justice. We withdraw our opinion, dissenting opinion and judgment dated June 28, 2007 and substitute the following in its stead. We overrule the Appellees' Motion for Rehearing. We again address issues arising from the expert report requirements of section 74.351 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West Supp.2006). Appellant Mark D. Bogar, M.D. appeals the probate court's denial of his motion to dismiss appellees' health care liability claims under section 74.351(b) for failure to serve an expert report. Their appeal requires us to consider (1) whether we have subject-matter jurisdiction to consider it; (2) whether appellees served the required expert report; and, if not, (3) the appropriate appellate remedy. We conclude that we have jurisdiction over Dr. Bogar's interlocutory appeal and that the controlling law and "four corners" of appellees' report leave us no alternative but to reverse and render judgment dismissing appellees' claim and awarding attorney's fees and costs. See id. § 74.351(b). In their motion for rehearing and en banc *358 reconsideration, appellees have urged that our application of section 74.351 violates due process and due course of law. We disagree, for reasons we will explain herein. We will remand to the probate court to determine the amount of attorney's fees to which Dr. Bogar is entitled. BACKGROUND Appellees sued Dr. Bogar and Healthsouth on May 1, 2006, alleging negligence in connection with medical care provided to Katherine R. Guerrero by Dr. Bogar and the "agents, servants, employees, representatives, and staff" of Healthsouth Rehabilitation Hospital of Austin between December 28, 2004, and January 12, 2005, when Ms. Guerrero died. Appellees alleged that following surgery, Ms. Guerrero was placed under the care of Dr. Bogar and Healthsouth and, in the course of her rehabilitative treatment, was given a fatal overdose of pharmaceutical products. Appellees pleaded that an autopsy report from the Travis County Medical Examiner concluded that Ms. Guerrero "died as a result of an overdose of oxycodone and propoxyphene." On or around June 6, 2006, Appellees served on Dr. Bogar and Healthsouth an expert report prepared by Dr. Jesse Adame that purported to comply with the requirement of subsection 74.351(a). See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) ("In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports ... for each physician or health care provider against whom a liability claim is asserted."). Both defendants timely filed objections to the sufficiency of Dr. Adame's report. See id. ("Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived."). Each defendant contended that Dr. Adame's report failed to satisfy the statutory definition of an "expert report" by failing to provide a fair summary of the expert's opinions regarding applicable standards of care, the manner in which the care rendered by each defendant failed to meet the standards, and the causal relationship between such failure and Ms. Guerrero's death. See id. § 74.351(a), (l), (r)(6). Further, Dr. Bogar urged that Dr. Adame, a pathologist, had failed to demonstrate that he was an "expert" qualified to render opinions concerning the standards of care applicable to Dr. Bogar, a physical medicine rehabilitation physician. See id. § 74.351(r)(5), § 74.401 (West 2005). Subsequently, after appellees' 120-day deadline for serving their expert reports expired, see id. § 74.351(a), Dr. Bogar and Healthsouth filed a joint motion seeking dismissal with prejudice, attorney's fees and costs for failure to file an expert report complying with section 74.351. See id. § 74.351(b). Dr. Bogar later filed an amended motion to dismiss adding his earlier challenge to Dr. Adame's qualifications. On January 10, 2007, the probate court denied the dismissal motions. Both Dr. Bogar and Healthsouth timely filed notices of interlocutory appeal. In the interim, Healthsouth settled with appellees. We accordingly address only the appellate issues presented by Dr. Bogar. ANALYSIS In a single issue, Dr. Bogar argues that the probate court abused its discretion in denying his motion to dismiss and request for attorney's fees and costs. In addition to disputing the merits of this contention, appellees have filed a motion to dismiss *359 Dr. Bogar's interlocutory appeal for want of jurisdiction, contending that no statute authorizes him to appeal the order he seeks to challenge. Jurisdiction Appellate courts generally have subject-matter jurisdiction only over appeals from final judgments and have jurisdiction over appeals of interlocutory orders only when that authority is explicitly granted by statute. Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 185 (Tex.App.-Austin 2005, no pet.) (citing Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998)). Section 51.014(a) of the civil practice and remedies code authorizes an interlocutory appeal from two types of orders regarding expert reports under chapter 74. First, an interlocutory appeal may be taken from an order that "denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351(c)." Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (West Supp.2006). Second, an interlocutory appeal may be taken from an order that "grants relief sought by a motion under Section 74.351(l)." Id. § 51.014(a)(10). Appellees assert that the order from which Dr. Bogar seeks to appeal is neither of these. They suggest that "the relief sought by a motion under Section 74.351(b)" is available only where a claimant has failed to timely file an instrument purporting to be an "expert report" by the 120-day deadline of subsection (a), not when a purported "expert report" is timely filed but is found to be inadequate. See id. § 74.351(b) ("If ... an expert report has not been served within the period specified by Subsection (a)...."). Here, appellees maintain, there is no dispute that "the expert report of Dr. Adame was served within the required period of time." Appellees further assert that challenges to the adequacy or sufficiency of expert reports, as contrasted with their absence or timeliness, are governed exclusively by section 74.351(l). Section 74.351(l) states that "[a] court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Id. § 74.351(l). Because Dr. Bogar's motion, in appellees' view, is "a motion under section 74.351(l)," they assert that his right of interlocutory appeal is controlled by section 51.014(a)(10) rather than (a)(9), and no appeal is available from the probate court's order denying him relief. See id. § 51.014(a)(10) (permitting appeal from an order that "grants relief sought by a motion under Section 74.351(l)") (emphasis added). They equate this case to Academy of Oriental Medicine, L.L.C. v. Andra, where we held that an order denying a motion challenging the sufficiency of an expert report was governed by section 74.351(l) rather than section 74.351(b) and that "[b]ecause this appeal challenges an order that is neither an order denying the relief sought by a motion under § 74.351(b) nor one granting relief sought by a motion under § 74.351(l), we lack jurisdiction to hear it." 173 S.W.3d at 186-89. We disagree with appellees' views of section 74.351 and Andra. Under section 74.351(b), as the supreme court has recently explained, a plaintiff may fail to "serve" an "expert report" within the period specified by Subsection (a) not only by failing to serve any expert report within that deadline (an "absent report"), but also by failing to provide a report within the deadline that satisfies the statutory requirements for "expert reports" (a "deficient report"). See Ogletree *360 v. Matthews, No. 05-0502, ___ S.W.3d ___, ___, & n. 2, 2007 WL 4216606, at *2-3 & n. 2, 2007 Tex. LEXIS 1028, at *6-8 & n. 2, (Tex. Nov. 30, 2007); Austin Heart P.A. v. Webb, 228 S.W.3d 276, 284 (Tex. App.-Austin 2007, no pet.); Apodaca v. Russo, 228 S.W.3d 252, 257-58, (Tex.App.-Austin 2007, no pet.); cf. Walker v. Gutierrez, 111 S.W.3d 56, 61 (Tex.2003) (dismissal under former article 4590i warranted for "failure to comply" with report deadline by either failure to file or failure to file adequate report). This conclusion is apparent from the text and structure of section 74.351. Subsection (a) requires the claimant to file one or more "expert reports" not later than the 120th day after the date the original petition was filed, and subsection (b) mandates sanctions "[i]f, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a)." "Expert report" is defined within section 74.351 as: "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6); see id. § 74.351(r)(5) (definition of "expert"). Thus, if the report does not comply with subsection (r)'s "expert report" definition, it does not satisfy the claimant's requirement under subsection (a) and exposes the claimant to potential sanctions under (b), including dismissal. Subsection (c), however, provides that "[i]f an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient," the trial court is afforded discretion to grant a single 30-day extension "in order to cure the deficiency." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (emphases added); See Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *2-3, 2007 Tex. LEXIS 1028, at *7-8 ("the Legislature recognized that not all initial timely served reports would satisfy each of the statutory criteria. As a result, the [2003] amendments explicitly give trial courts discretion [in subsection (c)] to grant a thirty-day extension so that parties may, where possible, cure deficient reports.... In this important respect, a deficient report differs from an absent report."). Conversely, "[i]f no report is served within the 120-day deadline provided by 74.351(a)—i.e., an `absent report'— the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions." Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *6; see also id. at *7 & n. 2, 2007 SL 4216606, at *2 & n. 2, at *7 & n. 2 ("section 74.351's language is somewhat confusing, as the statute uses the phrase "has not been served" to refer both to deficient and absent reports."). The supreme court also reiterated the concept that a report served within the 120-day deadline that fails entirely to implicate the conduct of a defendant is not merely deficient, but is in effect an absent report or no report as to that defendant. See id. at ___ _ ___, 2007 WL 4216606, at *2-3, at *6-8 (citing with approval Garcia v. Marichalar, 185 S.W.3d 70, 73 (Tex. App.-San Antonio 2005, no pet.) for the principle that an "expert report" that mentioned other providers but not Garcia was in effect no report as to Garcia and concluding that an extension was, therefore, improper); cf. Austin Heart, 228 S.W.3d at 284 (holding that timely report that "plainly discusses the conduct of the physician in question" but was deficient in failing to explicitly link the physician to the *361 report's stated opinions regarding standard of care and causation was potentially curable and should be remanded for consideration of whether a subsection (c) extension should be granted). Recently, the Texas Supreme Court has laid to rest any question as to whether the availability of interlocutory review of an order denying relief under section 74.351(b) differs depending on whether the motion's grounds relate to (1) the absence of any timely-served expert report, (2) a timely expert report that is nonetheless not "served" on a defendant because it is deficient as to one or more statutory criteria, or (3) a timely expert report that is effectively "no report" as to a defendant because it fails to implicate that defendant's conduct. The supreme court concluded, as we did on original submission, that it does not. See Lewis v. Funderburk, 253 S.W.3d 204, 207-08 (Tex.2008). A potential limitation on this right to appeal exists, however, where a timely expert report implicates a defendant's conduct: the trial court, in its discretion, may grant an extension under section 74.351(c), in which case the order denying the motion under section 74.351(b) is not appealable. Tex. Civ. Prac. & Rem.Code Ann. §§ 51.014(a)(9), 74.351(b)-(c); see Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at * 3-4, 2007 Tex. LEXIS 1028, at *6-8 ("If no report is served within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to dismiss or grant extensions, and a trial court's refusal to dismiss may be immediately appealed.... [But] even when a report is deemed not served because it is deficient, the trial court retains discretion to grant a thirty-day extension, and the Legislature explicitly stated that such orders are not appealable.... [I]f a deficient report is served and the trial court grants a thirty-day extension, that decision—even if coupled with a denial of a motion to dismiss—is not subject to appellate review."). In other words, an order denying relief under subsection (b) is immediately appealable unless the trial court has discretion under subsection (c) to grant a 30-day extension and actually does so. Here, Dr. Bogar filed objections to Dr. Adame's expert report within 21 days of service, see Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), and a motion, after the 120-day deadline had expired, explicitly invoking subsection (b) and asserting that the probate court should dismiss appellees' claim against him with prejudice and award attorney's fees and costs for failure to file "a statutorily defined expert report" by the deadline. See id. § 74.351(b). The probate court denied that motion without granting an 30-day extension. Id. § 74.351(b), (c). That order "denies all or part of the relief sought by a motion under Section 74.351(b)," and we have subject-matter jurisdiction to adjudicate Dr. Bogar's appeal from that order. Id. § 51.014(a)(9); see Lewis, 253 S.W.3d at 207; Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *2-3, 2007 Tex. LEXIS 1028, at *6-8; Andra, 173 S.W.3d at 186-87. We accordingly deny appellees' motion to dismiss Dr. Bogar's appeal. Dr. Adame's report We turn now to Dr. Bogar's issue. Dr. Bogar asserts that the probate court abused its discretion in denying his section 74.351(b) motion because appellees failed to "serve" him with an expert report. Specifically, Dr. Bogar urges that (1) Dr. Adame's report did not represent a good faith effort to comply with the statutory requirements for "expert reports" and, in fact, constituted no report as to him; and (2) Dr. Adame, as a pathologist, was not qualified as an "expert" to evaluate Dr. Bogar's performance as a rehabilitative *362 medicine specialist. We need not reach the latter contention because we agree that Dr. Adame's report was deficient with regard to the statutory requirements for expert reports. As noted above, the "expert report" or reports that a health care liability claimant must serve under section 74.351(a) must provide "a fair summary of the expert's opinion as of the date of the report regarding the applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). A trial court, again, must grant a motion challenging the adequacy of a report only if the report "does not represent an objective good faith effort to comply" with this definition of "expert report." Id. § 74.351(l). To constitute a "good faith effort," the report must provide enough information to fulfill two purposes: (1) it must inform the defendant of the specific conduct the plaintiff has called into question; and (2) it must provide a basis for the trial court to conclude that the claims have merit. Austin Heart, 228 S.W.3d at 279 (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). Although a report need not marshal all of a claimant's proof, it must include the expert's opinion on each of the elements identified in section 74.351. Id. (citing Palacios, 46 S.W.3d at 878). It is not enough for the report merely to state the expert's conclusions about the statutory elements. Id. (citing Palacios, 46 S.W.3d at 879). "Rather, the expert must explain the basis of his statements to link his conclusions to the facts." Id. (quoting Bowie Mem'l, 79 S.W.3d at 52) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999)). Importantly, because the statute dictates what is required in the report, the only information relevant to determining whether a report complies with the statute is that within "the four corners" of the report. Id. (citing Palacios, 46 S.W.3d at 878). This requirement "precludes a court from filling gaps in a report by drawing inferences or guessing as to what the expert likely meant or intended." Id. (citing Bowie Mem'l, 79 S.W.3d at 53). We review a trial court's ruling on a section 74.351(b) motion under an abuse of discretion standard. Palacios, 46 S.W.3d at 877-78. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). A clear failure by the trial court to analyze or apply the law correctly also constitutes an abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The document prepared by Dr. Adame recites his qualifications and concludes that "I am qualified based on my education, training and experience to offer an expert opinion regarding the cause and mechanism of death of Mrs. Katherine Ramirez Guerrero. As a pathologist, I am familiar with the standard of care required of physicians not to prescribe drugs either alone or in combination that will cause a fatal overdose." "Such conduct," Dr. Adame adds, "falls below the standard of care required of physicians." Dr. Adame then lists the medical records and other materials he had reviewed, and summarizes Ms. Guerrero's medical history. Dr. Adame notes that Ms. Guerrero was 76 years of age, and had a "past medical history of hyperlipidemia, *363 osteoarthritis, poorly controlled hypertension, and chronic dizziness." He recounts that Ms. Guerrero had complained of left hip pain following a December 25, 2004 fall and had been "admitted to Seton/Brackenridge Hospital after is was determined that she had a nondisplaced fracture of the left femur," but "[i]t was also determined at that time, that no surgical intervention was needed." Adame then states: Her medical problems and rehabilitation were managed by HealthSouth Rehabilitation Hospital of Austin. She was transferred to that facility on December 28, 2004. She was placed on a Duragesic patch at 25 mcg on December 29, 2004. It was increased to 50 mcg on December 30, 2004 because of continued significant pain. She was also given her usual home medications including Doxepin, Norvasc, Zescril, Tenormin, and Imdur. Because of significant drowsiness with the Duragesic patch, her dose was reduced back to 25 mcg. She was also given Protonix for gastrointestinal prophylaxis. Despite a fairly stable hospital course, her pain increased. On January 7, 2005, after her records were reviewed and she was cleared for surgery, she was taken to the operating room at Seton/Brackenridge Hospital for open reduction and internal fixation of her left femur. Her surgery went well and she was transferred back to HealthSouth Rehabilitation Hospital of Austin on January 8, 2005. She resumed her medical regimen along with physical and occupational therapy. Her pain persisted and she was taken off of Duragesic patch post surgery. OxyContin was added to her therapy, initially at 10 mg and later increased to 20 mg. She had bouts of constipation and loose stool which was medically managed. On January 12, 2005 at 9:34 p.m. she experienced cardiopulmonary arrest. Despite cardiopulmonary resuscitation until 10:13 p.m., she was pronounced dead. Dr. Adame then summarizes the "significant findings" of the autopsy report from the Travis County Medical Examiner's Office, including "the conclusions ... that Mrs. Guerrero died as a result of an overdose of oxycodone and propoxyphene." Adame then states his "opinions and conclusions." He begins: "I concur with the autopsy conclusions." He observes that the medical examiners "performed a complete autopsy with toxocological analysis of blood, vitreous humor, and urine," and references certain autopsy findings. Dr. Adame describes the composition and effect of oxycodone and propoxyphene as various dosing levels, including the levels indicative of toxicity and death. Drawing on these observations, he states the following: Mrs. Guerrero had postmortem blood oxycodone concentration of 0.25 mg/L. This level and the clinical findings of nausea and labored breathing (noted in nursing notes shortly before her death) indicates that the oxycodone was inducing respiratory depression. ..... Mrs. Guerrero had postmortem blood propoxyphene levels of 1.0 mg/L. This concentration of propoxyphene and the clinical findings of nausea, labored breathing, and cardiac arrest (noted in nursing notes shortly before her death) indicates that the propoxyphene was inducing respiratory depression, cardiac arrhythmia, and circulatory collapse and subsequent death. In addition, the respiratory depression was exacerbated by the high concentrations of oxycodone (see above). Dr. Adame then concludes: In summary, Mrs. Guerrero had toxic levels of oxycodone along with lethal levels of propoxyphene which caused her *364 demise. The mechanism of death was respiratory depression, cardiac arrhythmia, and circulatory collapse. Additionally, autopsy examination failed to demonstrate an anatomic cause of death. All of my opinions above are predicated upon a reasonable medical probability. Dr. Adame's report fails to comply with the requirements of section 74.351. Most notably, it does not identify in any way the person or persons whose conduct is the subject of any of his opinions regarding standard of care, causation, and death. We have held that where a defendant is not identified at least in some manner within the "four corners" of the report, the report is, for that reason alone, deficient as to that defendant because it would require the reader to infer or make an educated guess as to whose actions the expert is complaining. Austin Heart, 228 S.W.3d at 281; Apodaca, 228 S.W.3d at 257-58; see Marichalar, 198 S.W.3d at 255.[1] The report likewise fails to describe the standard of care potentially applicable to Dr. Bogar, other than a broad reference to "the standard of care required of physicians not to prescribe drugs either alone or in combination that will cause a fatal overdose," which he never applies or analyzes in light of specific facts and circumstances. Further, Dr. Adame never describes how Dr. Bogar might have breached a standard of care or link such a breach to Ms. Guerrero's death. See Jernigan v. Langley, 195 S.W.3d 91, 93-94 (Tex.2006) (affirming dismissal under former article 4590i where report made only "passing mention" of defendant physician and failed to state how he breached the standard of care or how his alleged breach caused injury); see also Palacios, 46 S.W.3d at 879-80 (conclusory statement that "precautions to prevent [patient's] fall were not properly utilized" did not sufficiently apprise physician whether the expert believed that the standard of care required him "to have monitored [the patient] more closely, restrained him more securely, or done something else entirely"). In essence, Dr. Adame's report is a second autopsy report, opining about the cause of Ms. Guerrero's death without explaining who caused it or how. See Sherman v. Austin State Hosp., No. 03-05-00296-CV, 2006 WL 305300, at *1, 2006 Tex.App. LEXIS 1115, at *30-4 (Tex.App.-Austin 2006, pet. denied)(mem.op.)("A report finding only the cause of death does not satisfy the statutory requirements."), cert. denied, ___ U.S. ___, 127 S.Ct. 976, 166 L.Ed.2d 740 (2007). We hold that the probate court abused its discretion in denying Dr. Bogar's motion for sanctions under section 74.351(b). We sustain Dr. Bogar's issue. Remedy In the probate court, appellees requested that, in the event Dr. Adame's report was found deficient, the court grant them a discretionary 30-day extension under section 74.351(c) to enable them to cure any deficiencies in the report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c). Because the probate court held that Dr. Adame's report "is sufficient in meeting the requirements of ... Ch. *365 74," it did not reach the extension issue. As earlier noted, trial courts have discretion to grant extensions under subsection (c) where "an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient." See id. § 74.351(c). Conversely, where an expert report has not been "served" as to a defendant within the 120-day period because no report is timely served or a report fails to implicate the defendant's conduct, the trial court has no discretion but to dismiss upon a section 74.351(b) motion. Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *6 (citing Marichalar, 185 S.W.3d at 73). In Austin Heart, we discerned from this statutory scheme legislative intent that in "at least some situations where a timely report is deficient [but not entirely absent or no report] ... the trial court should consider whether the deficiency is such that it warrants allowing a cure period." 228 S.W.3d at 284. Because we concluded that the report at issue in the case was deficient as opposed to no report regarding the physician defendant, we deduced that subsection (c) required us to remand to the trial court, in lieu of rendering a judgment of dismissal and sanctions, to afford the court the opportunity to exercise its discretion whether to grant a 30-day extension. Id. Appellees urge that the same appellate relief is appropriate here if we reverse the probate court's order denying Dr. Bogar's section 74.351(b) motion. Our disposition of this question turns on whether the flaws in Dr. Adame's report render it merely deficient with respect to the statutory criteria or, as Dr. Bogar argues, render the report no report as to him. If we hold the former, we would, under Austin Heart, remand to afford the trial court the opportunity to exercise its discretion whether to grant a 30-day extension under section 74.351(c) to cure the deficiency. If we conclude that Dr. Adame provided no report as to Dr. Bogar, we would instead render the judgment the trial court should have rendered—dismissal. Austin Heart, 228 S.W.3d at 284; see Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *8-9 ("If no report is served within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to dismiss or grant extensions...."). We accordingly compare Dr. Adame's report to those in other cases under section 74.351 in which the distinction between a timely report constituting no report versus a merely deficient report has been addressed. In Marichalar, the plaintiff asserted claims for medical negligence relating to a sponge that was left in her body during abdominal surgery. She named as defendants three physicians—Prieto, Garcia-Arecha, and Garcia—two nurses, and the hospital. Marichalar timely served an expert report prepared by an obstetrician-gynecologist, Dr. Miller, in which he stated that Prieto, the surgeon, and Garcia-Arecha, the assistant surgeon, deviated from the standard of care because they allowed "the lap sponges not to be counted correctly and then noted in the chart that they were correct" and then "failing to diagnose and remove the laparotomy sponge in a timely manner." However, neither Dr. Miller nor a nurse expert implicated Dr. Garcia, as opposed to the other providers, in their respective reports. See Garcia v. Marichalar, 198 S.W.3d 250, 253 (Tex. App.-San Antonio 2006, no pet.). The San Antonio Court of Appeals concluded that "with regard to Garcia, there was no timely served expert report," requiring the trial court to dismiss Marichalar's claims against Garcia and depriving it of any discretion to grant a 30-day extension. Marichalar, *366 185 S.W.3d at 73; Marichalar, 198 S.W.3d at 252. In Austin Heart, the expert, Dr. Cororve, repeatedly referred in the report's background section to defendant physician Dr. Kessler by name and discussed various acts by him and other identified and unidentified caregivers. However, Dr. Cororve did not explicitly link Dr. Kessler's acts to Cororve's subsequent opinions regarding the applicable standard of care, how it was breached, and how the breach caused injury. Austin Heart, 228 S.W.3d at 280-81. We concluded that the report was deficient because "it requires the reader to infer or make an educated guess that Dr. Cororve [the expert] is identifying Dr. Kessler as the physician who breached the standard of care and caused injury" and that "[t]here is nothing in the report that links Dr. Kessler to Dr. Cororve's opinions regarding the breach of the standard of care and causation any more than Dr. Rodgers or the other `various physicians' references." Id. at 281. Although we emphasized that "a report's adequacy under section 74.351 does not depend on whether the expert uses any particular magic words such as `the standard or care was breached by Dr. Kessler,'" we observed that "Dr. Cororve's report is silent as to whether a single physician, multiple physicians, or all physicians mentioned in the report failed to meet the standard of care and caused injury to Mr. Webb." Id. at 281-82. Nonetheless, we distinguished Dr. Cororve's deficient report from the "no report" found in Marichalar: Here, a timely report plainly discusses the conduct of the physician in question and the report discusses opinions on the standard of care and causation that could be linked to the conduct of the physician set out in the report, but simply are not. The report is not deficient because it does not relate to Dr. Kessler at all. It is deficient because the link between Dr. Kessler's conduct and the expert's conclusions is not expressly stated. The report in this case is, therefore, some report as to Dr. Kessler (among others), but it is not sufficient to meet all of the requirements of section 74.351. It is an example of what section 74.351(c) refers to as a report that "has not been served within the [120-day period for serving reports] because elements of the report are found deficient. Id. at 284; see also id. at 285 (suggesting that "[i]f the expert is of the opinion that Dr. Kessler's conduct breached the standard of care and caused injury, he will not have to generate a new, previously nonexistent report. He will simply have to add the link between his already stated conclusions and the already referenced conduct of Dr. Kessler. Therefore, the circumstances here are not similar to the situation where a plaintiff simply has missed the deadline for serving a report with respect to the conduct of a physician."). More recently, the supreme court in Ogletree, although apparently endorsing the "no report" concept of Marichalar, see Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *6 (citing Marichalar with approval), also indicated that the omission of a defendant's name would not categorically render a report "no report" as to that defendant. The plaintiffs alleged negligence by Dr. Jan Ogletree, a urologist, in performing a urinary catheterization procedure on John Burke Matthews in a manner causing him injuries and ultimate death. The plaintiff timely served the one-page expert report of Dr. Richard Karsh, which stated, in relevant part: In my opinion (but I would have to defer to a urologist on this) given the inability of the nursing staff to pass the Foley catheter into the bladder and the necessity *367 for the urologist to utilize a stiff metallic "wire" to transverse the urethra, such manipulation and catherization should have been performed under fluoroscopic guidance. Had that been done the perforation might well have been avoided but certainly could have been diagnosed at the outset, with the likelihood of a smaller tear having resulted. If not recognized in a timely manner, such a tear could lead to long-term problems, including bladder (or, if a urethral tear, urethral) dysfunction, infection, etc. It is apparent that a cystogram was performed shortly after the catherization, although the exact timetable is unclear; nor do I have records to determine whether or not the response of the physician to the tear was appropriate. (Of course, those might be best reviewed by a urologist). Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *1, 2007 Tex. LEXIS 1028, at *2-3. Dr. Ogletree complained that Dr. Karsh, as a radiologist, was not qualified to render opinions on a urologist's standard of care. Because of this defect, Ogletree asserted, no "expert report" was "served" within the 120-day deadline, the trial court had no discretion to grant a 30-day extension and its denial of his section 74.351(b) motion should therefore be immediately appealable. The supreme court, however, characterized this type of complaint as a report being "deemed not served because it is deficient," and subject to a discretionary 30-day extension under section 74.351(c). Id. at ___, 2007 WL 4216606, at *3, at *7-8. It held that "[b]ecause a report that implicated Dr. Ogletree's conduct was served and the trial court granted an extension, the court of appeals could not reach the merits of its motion to dismiss." Id. at ___, 2007 WL 4216606, at *4, at *9 (emphasis added). Although the supreme court did not squarely address the significance of Dr. Karsh's omission of Dr. Ogletree's name from his report, it characterized the report as "directed solely to Dr. Ogletree's care (although it did not mention him by name)," id. at ___, 2007 WL 4216606, at *1, at *2, and "implicating" Dr. Ogletree's conduct. Id. at ___, 2007 WL 4216606, at *4, at *9 ("a report that implicated Dr. Ogletree's conduct"). The supreme court's references to a report "implicating" a provider's conduct appears to allude to section 74.351(a)'s 21-day deadline by which "[e]ach defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (emphasis added). Elsewhere the court distinguishes between cases "where there is an absence of a report, rather than a report that implicated a provider's conduct but was somehow deficient." Ogletree, ___ S.W.3d at ___, n. 2, 2007 WL 4216606, at *7 n. 2, 2007 Tex. LEXIS 1028, at *7 n. 2. These statements imply that a defendant provider's conduct can be "implicated" by a report even if the provider is not explicitly mentioned by name and that although such an omission might render the report deficient, it would not for that reason alone render the report "no report" as to the provider.[2] *368 Turning to Dr. Adame's report, it is, as noted, essentially a second autopsy report, opining about the cause of Ms. Guerrero's death without explaining who caused it or how. There are only cursory references to the conduct of anyone connected to Ms. Guerrero's care. In the "History" section of his report, Dr. Adame notes that after her fall, Ms. Guerrero's "medical problems and rehabilitation were managed by HealthSouth Rehabilitation Hospital of Austin," where she was later "transferred back ... on January 8, 2005" following her hip surgery at Brackenridge. Adame then recounts: She resumed on her medical regimen along with physical and occupational therapy. Her pain persisted and she was taken off of Duragesic patch post surgery. OxyContin was added to her therapy, initially at 10 mg and later increased to 20 mg. She had bouts of constipation and loose stools which were medically managed. On January 12, 2005, at 9:34 p.m., she experienced cardiopulmonary arrest. Despite cardiopulmonary resuscitation until 10:13 p.m., she was pronounced dead. In his "opinions and conclusions" regarding the cause of death, Dr. Adame does not elaborate on the specific conduct or persons to whom he attributes the overdose other than vaguely alluding to "clinical findings" of "nausea, labored breathing, and cardiac arrest" that, to him, confirmed that the amounts and combination of oxycodone and propoxyphene were inducing respiratory depression, cardiac arrhythmia, circulatory collapse, and subsequent death. Although the distinction between "no report" and a deficient-but-potentially curable report can be elusive, we conclude that Dr. Adame's report is no report as to Dr. Bogar. Dr. Adame, again, never mentions Dr. Bogar in his report. Although that omission alone may not alone render the report "no report," the report entirely fails to implicate Dr. Bogar's conduct—if any person's conduct. The report is simply silent regarding how the overdose occurred and who, if anyone, was responsible for it. Dr. Adame does not identify any acts or omissions, by persons identified or unidentified, to which he attributes the overdose. Cf. Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *1, 2007 Tex. LEXIS 1028, at *2-4 (report opining that "the urologist" should have performed manipulation and catheterization under fluoroscopic guidance and attributing patient's injuries to same). Nor, even assuming Adame's passing references to Ms. Guerrero's "medical regimen" and receipt of oxycodone could implicate the conduct of any person, would his report implicate Dr. Bogar's conduct as opposed to unidentified agents of Healthsouth. See Marichalar, 185 S.W.3d at 73; Marichalar, 198 S.W.3d at 252. Dr. Adame cannot cure these omissions simply by "add[ing] the link between his already stated conclusions and *369 the already referenced conduct" of Dr. Bogar. See Austin Heart, 228 S.W.3d at 285. There is nothing in the report regarding Dr. Bogar that could be linked to anything. Consequently, Dr. Adame could "cure" the deficiencies in his report only by "generat[ing] a new, previously nonexistent report" as to Dr. Bogar. See id. Such a remedy, as we have explained, is proscribed by section 74.351.[3] In their motion for rehearing and reconsideration en banc, appellees acknowledge that "[t]he report did not assign blame for the victim's harm to a specific physician or hospital employee by name" and is silent regarding "who exactly did what." They suggest that "Dr. Adame's report shows a fatal overdose of medications given to an inpatient in the hospital, a lapse with all the hallmarks of res ipsa loquitur" that "create[s] a powerful presumption that the overdoses were the result specifically of negligence by the treating physician of record." Even assuming res ipsa loquitur applied in this case, this evidentiary presumption would not create an exception to section 74.351's expert report requirement. The Marichalar court rejected a similar contention in a "sponge case"—surgeons left surgical sponges inside the plaintiff during abdominal surgery. The court explained: While section 74.201 allows for the application of res ipsa loquitur, we do not interpret it as an exception to section 74.351's expert report requirement. Res ipsa loquitur is an evidentiary rule. In contrast, section 74.351's expert report requirement establishes a threshold over which a claimant must proceed to continue a lawsuit; it does not establish a requirement for recovery. It may be that once discovery is complete and the case is tried, there is no need for expert testimony.... But the Legislature envisioned that discovery and the ultimate determination of what issues are submitted to the factfinder should not go forward unless at least one expert has examined the case and opined as to the applicable standard of care, that it was breached, and that there is a causal relationship between that failure to meet the standard of care and the injury, harm, or damages claimed. Thus, because res ipsa loquitur is an evidentiary rule while the expert report is a threshold requirement for bringing a lawsuit, we do not believe that the Legislature intended for section 74.201 to eliminate the procedural requirement of an expert report at the commencement of litigation. See Marichalar, 198 S.W.3d at 255-56. (internal citations and quotes omitted). We find this analysis persuasive. Consequently, even if res ipsa loquitur applied to appellees' claims against Dr. Bogar, it would not excuse their failure to serve him with an expert report. Constitutional issues In their motion for rehearing and for reconsideration en banc, appellees attribute their noncompliance to chapter 74's *370 limitations on discovery, urging that "the report could not have [complied] without compulsory process, as the precise facts regarding which named individuals administered each dose, failed to comprehend the danger or catch the error, or failed to remedy its effects, were then and remain today in the sole possession of the defendants." Section 74.351(s) provides: Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health care liability claim is stayed except for acquisition by the claimant of information, including medical or hospital records or other documents or tangible things, related to the patient's health care through: (1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure; (2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and (3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s). "Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than two depositions before the expert report is served as required by Subsection (a)." Id. § 74.351(u). These provisions thus bar oral depositions of parties and allow only two oral depositions of non-parties before the expert report is served. They also bar pre-suit depositions to investigate potential claims under rule 202. In re Jorden, 249 S.W.3d 416, 420 (Tex.2008). Appellees urge that their inability to orally depose Dr. Bogar before serving their expert report creates "an intolerable procedural conundrum" or "catch-22" by preventing them from obtaining the very information they need to prepare a sufficient expert report.[4] This "conundrum," appellees assert, imposes an "impossible condition" on medical malpractice claimants' property rights in their causes of action that violates the due process clause of the fourteenth amendment to the United States Constitution and due course of law under article I, section 19 of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19.[5] Appellees acknowledge that "Texas courts construe Article I, Section 19, in line with the federal due process guarantees" and that "[s]tandards for Texas constitutional claims regarding access to the courts are the same under due process and open courts." See University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex. 1983).[6] Appellees stop short of "contend[ing] that the expert report requirement must be invalidated for all cases," but instead urge us to "construe Section 74.351 to avoid a constitutional problem" by either "declar[ing], for cases where medical negligence by one or more defendants *371 is clear but where the plaintiff cannot allocate fault among them without discovery, that Section 74.351(s) does not stay the discovery necessary to obtain the fault allocation facts that would perfect the required expert report; or declar[ing] the expert report in such a case sufficient without those facts, since they are unnecessary to demonstrate at the threshold that the case has merit."[7] We begin with the presumption that section 74.351 is constitutional. Walker, 111 S.W.3d at 66. Additionally, the party challenging the constitutionality of a statute bears the burden of establishing that the enactment fails to meet constitutional requirements. Id. With regard to restrictions on health care liability claims in particular, we are mindful of two general principles. First, "there are constitutional limitations upon the power of courts ... to dismiss an action without affording a party the opportunity for a hearing on the merits of his [or her] cause." Thoyakulathu v. Brennan, 192 S.W.3d 849, 855 (Tex.App.-Texarkana 2006, no pet.) (quoting Walker, 111 S.W.3d at 66 (quoting TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex.1991))). Second, the filing of a frivolous lawsuit can be misconduct subject to sanction. Id. (citing Palacios, 46 S.W.3d at 878). "[O]ne purpose of the expert-report requirement is to deter frivolous claims." Walker, 111 S.W.3d at 66. "The Legislature has determined that failing to timely file an expert report, or filing a report that does not evidence a good-faith effort to comply with the definition of an expert report, means that the claim is either frivolous, or at best has been brought prematurely. This is exactly the type of conduct for which sanctions are appropriate." Palacios, 46 S.W.3d at 878. Consequently, the supreme court rejected a due-process challenge to former article 4590i's mandatory dismissal of health care liability claims for failure to comply with statutory requirements. Walker, 111 S.W.3d at 66 ("The Gutierrezes' failure to file an adequate report thus raised the presumption that their claims were frivolous, or at best, premature. ... We do not believe the Constitution requires prior notice that the law is serious about a clearly stated consequence for failing to comply with its terms. The sanction imposed ... was a direct result of their failure to file an expert report that complied with the statutory requirements. Consequently, dismissal was appropriate and did not violate the due process clause, even in the absence of a notice of noncompliance prior to the motion to dismiss."); see Brennan, 192 S.W.3d at 855-56 (applying Walker to section 74.351). Turning to appellees' specific challenge, they have the burden of establishing that section 74.351's discovery limitations have in fact prevented them from satisfying the statute's expert-report requirements and pursuing their claim. See McGlothlin v. Cullington, 989 S.W.2d 449, 453 (Tex.App.-Austin 1999, pet. denied) (burden on claimant asserting open-courts violation is to provide sufficient evidence that the expert report requirement, and not her own inaction, actually functioned to keep her from pursuing her claim). Appellees suggest in their motion that they were forced to "prepare their report[] on medical records alone" and that these records were inadequate, but do not suggest they ever actually pursued the discovery permitted under section 74.351(s) beyond serving requests for disclosures at some unspecified point in *372 time.[8] Nor is there any evidence in the record to support such an assertion. We observe that section 74.351(s) and (u) authorize claimants to obtain discovery via not only requests for disclosure, but interrogatories, requests for production, requests for admissions, and depositions on written questions to parties (i.e., forms of discovery that could have been directed to Dr. Bogar); and rule 205 requests for production, depositions on written questions, and up to two oral depositions of non-parties.[9] The rules further provide mechanisms for enforcing compliance with discovery requests.[10] Appellees dismiss the significance of "[t]he limited written discovery that Section 74.351(a) nominally permits before service of the expert report," asserting that it is "widely understood not to extend beyond the medical records specifically mentioned in that subsection, and defense counsel in health care liability actions uniformly refuse any other written discovery." If that could be so, it is not because of anything the legislature actually provided in section 74.351, nor do appellees present evidence that any such application of section 74.351(s) in fact prevented them from obtaining any necessary discovery they had actually sought. See Brennan, 192 S.W.3d at 854 n. 5 (rejecting similar due-process argument "premised on [claimant's] failure to receive discovery from another party" as "ignor[ing] the remedies available to him to enforce lawful discovery requests"); see also Marichalar, 198 S.W.3d at 254 n. 1 (observing that "if the medical records are indeed conflicting" as to assistant surgeon's identity, as counsel had orally contended, "Marichalar could have propounded discovery to Dr. Garcia to discovery whether he was the assistant surgeon ... [a]nd if Dr. Garcia failed to timely answer the discovery requests, Marichalar could have moved to compel his answers."). Like the Brennan court, "we can certainly imagine a due process deprivation to a health care liability claimant pinned between a firm expert report deadline and a hypothetical absence of discovery tools," but must similarly conclude that appellees have not carried their burden of demonstrating that they were denied due process by such a situation here. Brennan, 192 S.W.3d at 856 n. 8; see McGlothlin, 989 S.W.2d at 453 (claimant's affidavit made "no mention of any actual attempt to obtain an expert report," in lieu of article 4590i bond requirement, "only some perceived financial barrier"). Appellees also question whether there is a rational relationship between chapter 74's expert-report requirement as applied here and the legislature's goal of discouraging frivolous lawsuits. See Lucas v. United States, 757 S.W.2d 687, 691 (Tex.1988) (holding that it was "unreasonable and arbitrary for the legislature to conclude that arbitrary damage caps, applicable to all claimants no matter how seriously injured, will help assure a rational relationship between actual damages and the amounts awarded."). This argument is predicated upon appellees' view that the bare fact Ms. Guerrero died of a drug overdose while in the hospital "create[s] a powerful presumption that the overdoses were the result specifically of *373 negligence by the treating physician of record," whom they assert was Dr. Bogar. We disagree that it is irrational, in light of the legislature's goal of curtailing frivolous health care liability claims, for it to require that appellees serve an expert report explaining why or how this outcome was actually caused by the conduct of Dr. Bogar, as opposed to some other person or health care provider. See Walker, 111 S.W.3d at 66 (explaining that the plaintiffs' failure to comply with the expert-report requirements "raised the presumption that their claims were frivolous, or at best, premature" and dismissal did not violate due process); Marichalar, 198 S.W.3d at 254-55 ("Section 74.351(r)(6) requires that an expert report explain how the care rendered by the physician failed to meet the applicable standard of care and the causal relationship between that failure and the injury suffered by the claimant."); see also Brennan, 192 S.W.3d at 855-56 (applying Walker to reject as-applied challenge to expert-report requirement where claimant had attempted to serve report timely, but fax machine failed; "Section 74.351 need not provide an exception geared toward such misfortune in order to provide constitutionally adequate safeguards."). We accordingly reject appellees contentions that our application of section 74.351 on the present record violates due process or due course of law. CONCLUSION As the Texas Supreme Court recently acknowledged, the requirements of section 74.351(b) "can lead to seemingly harsh results." Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *3. Here, they require us to render judgment dismissing appellees' claims against Dr. Bogar with prejudice and awarding Dr. Bogar attorney's fees and costs. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b). Further, our performance of our duty to effectuate these legislative mandates does not, on this record, exceed constitutional limitations. We accordingly reverse and render a judgment of dismissal and remand to the probate court for a determination of the amount of the attorney's fee award. Dissenting Opinion by Justice PATTERSON. JAN P. PATTERSON, J., dissenting. Given the length of time this accelerated interlocutory appeal has been pending, I will adopt my prior dissent with an additional observation, substituting this opinion and dissenting to the denial of appellees' motion for rehearing. In Palacios, the supreme court held that (i) a trial court's decision whether to dismiss a case under this statute is reviewed for abuse of discretion, and (ii) to constitute a good-faith effort to provide a fair summary of an expert's opinions, "an expert report must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit." American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (predecessor statute). In that case, the court found that the trial court did not abuse its discretion in its ruling and reversed the court of appeals. Based upon Palacios, I would hold that the trial court did not abuse its discretion here. For these reasons, I respectfully dissent. The majority has stepped into both shoes of the trial court: (i) overruling its determination that the expert report is sufficient and the litigation should go forward, and (ii) finding the report to be not just deficient, but "no report," thus foreclosing *374 an opportunity to cure any asserted deficiency. As the reviewing court, we are admonished that a trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex.1999). When reviewing a trial court's decision for an abuse of discretion, we recognize that such discretionary choices are left to a court's judgment, and its judgment is to be guided by sound legal principles. Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting United States v. Burr, 25 F. Cas. 30, 35 (CC Va. 1807) (Marshall, C.J.)). We may not substitute our own judgment for that of the trial court. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). While a trial court's failure to analyze and apply the law correctly would constitute an abuse of discretion, Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992), "[t]he test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. ... [I]t is a question of whether the court acted without reference to any guiding rules and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. Id. at 242. The parties agree that Dr. Bogar was the physical medicine rehabilitation doctor in charge of Ms. Esparza's care; he was the only doctor named in the lawsuit. An autopsy established that Ms. Esparza, who was admitted for post-operative hip surgery rehabilitation, died of an overdose of Oxycodone and Vicodin. After a hearing, the trial court expressly found the report to be sufficient and denied the motion to dismiss.[1] The supreme court has recently held that an expert report that implicates the doctor's conduct, but fails to mention the doctor by name, is merely deficient and subject to the trial court's discretionary power to grant a 30-day extension as allowed under section 74.351(c). See Ogletree v. Matthews, No. 05-0502, ___ S.W.3d ___, ___, ___, 2007 WL 4216606, at *1, 4, 2007 Tex. LEXIS 1028, at *2, 14 (Tex. Nov. 30, 2007). While the majority recognizes this recent supreme court holding, it fails to apply it to an expert report that plainly implicates appellant's conduct in prescribing a lethal dose of Oxycodone and Vicodin—choosing instead to ignore the statutory discretion imparted to the trial court by the legislature. See id. Although the trial court's determination is not shielded from review, we may not substitute our judgment for that of the trial court charged with a gatekeeping function in the first instance under this statute. Indeed, the trial court is charged not only with exercising its discretion in affirming or denying the motion to dismiss, but the trial court may—in its discretion— grant a 30-day extension to cure any deficiency. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c) (West Supp.2007). Because the trial court here found the report to be sufficient—and not deficient or "no report"—it did not consider whether to grant a discretionary extension to amend the report. I believe the trial court did not abuse its discretion in concluding that the report was sufficient. Because (i) the standard of review recognizes that there is a range of decisions that are appropriate as long as the trial court does not act in an arbitrary or unreasonable manner or without reference *375 to guiding rules and principles, and (ii) the trial court acted in accord with the supreme court's holdings in Palacios,[2] I would conclude that the trial court was guided by and employed sound legal principles and properly denied the motion to dismiss. I would affirm the trial court's order. Alternatively, because the trial court found the report to be sufficient and not deficient or "no report," I would follow this Court's precedent in Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (Tex.App.-Austin 2007, no pet.), and remand this cause for further proceedings to allow the trial court to exercise its discretion and determine whether a 30-day extension should be granted.[3] By cherry-picking language from the supreme court's Ogletree opinion to support its admitted "elusive" line between a deficient report and a "nonexistent" report, the majority overlooks the supreme court's common sense approach regarding expert reports that implicate a health provider's conduct: The supreme court reasoned that "while the 2003 amendments were intended to decrease claims, they do not mandate dismissal for deficient, but curable, reports." Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *9. In finding this report "no report," we are beyond cherry-picking and into hair-splitting for which the aim is not to seek the statutory mandate nor substantial justice. I would, therefore, grant the motion for rehearing. JAN P. PATTERSON, Justice, dissenting. For the reasons expressed in my dissenting opinion to this Court's disposition of this case on rehearing, I respectfully dissent from the denial of appellee's motion for en banc reconsideration. See Bogar v. Esparza, No. 03-07-00037-CV, ___ S.W.3d ___, ___ (Tex.App.-Austin May 16, 2008) (Patterson, J., dissenting). DIANE HENSON, Justice, dissenting. The expert reports required by section 74.351 of the civil practice and remedies code "are simply a preliminary method to show a plaintiff has a viable cause of action that is not frivolous or without expert support." Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex.App.-Houston [14th Dist.] 2008, no pet. h.). One of the benefits behind the expert-report requirement is that the screening mechanism frees up judicial resources to address non-frivolous claims. See House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995) (noting that predecessor statute to section 74.351 "would help focus judicial resources on legitimate claims"). The present case, which arose after a patient *376 suffered a fatal overdose of oxycodone and propoxyphene while receiving post-operative care for hip-replacement surgery, does not appear to be the type of meritless claim that the legislature intended to prevent by imposing the gate-keeping measure of the expert report. I join Justice Patterson's dissent in holding that the trial court acted within its discretion in finding the expert report sufficient, but write separately to further address the majority's failure to remand this case for a determination of whether, in the discretion afforded to the trial court under section 74.351(c), the appellees should be given a 30-day extension of time in order to cure any deficiencies in the expert report.[1] The majority reverses the trial court's determination that Dr. Adame's expert report is sufficient and renders judgment of dismissal, holding that this report constitutes "no report" as to Dr. Bogar and therefore that the trial court did not have discretion to allow a 30-day extension. See id. § 74.351(b) (stating that trial court shall dismiss claim if expert report has not been served within 120 days); Ogletree v. Matthews, No. 06-0502, ___ S.W.3d ___, ___, 2007 WL 4216606, at * 3, 2007 Tex. LEXIS 1028, at *8 (Tex. Nov. 30, 2007) ("If no report is served within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions."). If an expert report fails to implicate the conduct of a particular defendant, it is treated as "no report" as to that particular defendant. See Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex.App.-Austin 2007, no pet.) (report that described conduct of other doctors and health-care providers but failed to mention appellee at all constituted "no report" as to appellee); Garcia v. Marichalar, 185 S.W.3d 70, 72-73 (Tex.App.-San Antonio 2005, no pet.) (report that focused on conduct of other defendants and did not mention appellant at all was considered "no report" as to appellant). However, an expert report that does not fully satisfy the statutory criteria but is not so inadequate as to be deemed "no report" is treated as a deficient report, and trial courts have discretion to allow parties an extension of time in order to cure the deficiencies. See Ogletree, ___ S.W.3d at ___, 2007 WL 4216606, at *3, 2007 Tex. LEXIS 1028, at *10 ("[A] deficient report differs from an absent report. Thus, even when a report is deemed not served because it is deficient, the trial court retains discretion to grant a thirty-day extension."). While Dr. Adame's report does not mention Dr. Bogar by name, it unambiguously implicates Dr. Bogar's conduct. Unlike the reports in Apodaca, see 228 S.W.3d at 257, or Marichalar, see 185 S.W.3d at 72-73, the report in the present case does not implicate, identify, or describe the conduct of any physicians or medical professionals other than Dr. Bogar. Furthermore, Dr. Adame's report describes "the standard of care required of physicians not to prescribe drugs either alone or in combination that will cause a fatal overdose." (Emphasis *377 added). The report states that "[s]uch conduct falls below the standard of care required of physicians," and details how the levels of oxycodone and propoxyphene found in Guerrero's blood exceeded the amounts known to cause death. In light of this language, it is clear from the four corners of the report that Dr. Adame is implicating the conduct of the physician who prescribed oxycodone and propoxyphene to Guerrero. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) ("[T]he only information relevant to the inquiry is within the four corners of the document."). See also Ogletree, ___ S.W.3d at ___, 2007 WL 4216606at *1, 2007 Tex. LEXIS 1028, at *2 (where expert report implicated appellant's conduct but did not mention appellant by name, report was merely deficient and subject to extension allowed under section 74.351(c), rather than "no report" as to appellant). An expert report does not have to meet the same requirements as evidence offered in a summary-judgment proceeding or at trial, but is merely required to "discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question." Palacios, 46 S.W.3d at 875, see also 879. The trial court, in its discretion, may have reasonably concluded that Dr. Bogar was sufficiently informed of the conduct that the plaintiff in this case was calling into question—prescribing a combination of drugs in amounts that resulted in a fatal overdose. The majority's holding in the present case conflicts with this Court's holding in Austin Heart, P.A. v. Webb, 228 S.W.3d 276 (Tex.App.-Austin 2007, no pet.), in which we held that an expert report's failure to specifically identify a physician as having breached the standard of care or having caused the patient's injury merely results in a deficient report, subject to the cure provisions of section 74.351(c), rather than "no report." Id. at 282-83. The report in Austin Heart not only discussed the conduct of the appellant without identifying the appellant as having breached the standard of care or caused the injury, but also discussed the conduct of various other physicians without making it clear that the report related to the appellant physician. Id. at 280. Despite these omissions, this Court stated: While we are of the view that Dr. Cororve's report is deficient under section 74.351 because it requires the reader to make an educated guess regarding an essential element, we are also aware that the defect might well be curable. The tenor of Dr. Cororve's report, coupled with the fact that there is only one physician defendant, makes it quite likely that Dr. Cororve intended to opine that Dr. Kessler breached the standard of care and caused injury even though the report did not contain that opinion. The report's failure on this point is the kind of defect that the cure provisions of section 74.351(c) were designed to address. Id. at 282-83 (emphasis added). Significantly, the Austin Heart opinion also states, "Had Dr. Cororve referenced only actions by Dr. Kessler in the background section of his report, the link between Dr. Cororve's opinions and the responsible physician might be more apparent." Id. at 281. The link between Dr. Adame's opinions and Dr. Bogar could not be more apparent in the present case, where no other physicians or health-care professionals are named as defendants or mentioned in the expert report. Furthermore, the Texas Supreme Court's mandate that only information within the four corners of the expert report *378 may be reviewed for sufficiency, see Palacios, 46 S.W.3d at 878, does not necessarily preclude the trial court from conducting an independent analysis of the information contained in the report. In IHS Acquisition No. 140, Inc. v. Travis, No. 13-07-00481-CV, 2008 WL 1822780, 2008 Tex.App. LEXIS 2950 (Tex.App.-Corpus Christi Apr. 24, 2008, no pet. h.), the appellant argued that the trial court made an improper inference about causation that extended outside of the four corners of the expert report. The report failed to address a one-month gap between treatment of the patient's eye abscess and her death, and the trial court commented that the gap was the time which "causes the abscess to grow in the system and proliferate." Id. at *3, at *24. The court of appeals held that the trial court did not abuse its discretion in making such a comment, noting that expert reports may contain some level of ambiguity "that is subject to the independent analysis of the trial court." Id. The court further stated: [T]he trial court's explanation was only beyond the `four corners' of the report in the sense that the trial court explained medical concepts—such as abscess and cardiogenic shock—which Dr. Starer did not explain. The trial court, however, did not propose unique causation theories that were not discussed in the expert report. We believe that Dr. Starer's report, which explained causation, but which did not explain certain medical concepts that would perhaps need to be explained at trial, was `less than all the evidence necessary to establish causation at trial,' but still provided a `fair summary' of causation. ... The trial court's comments were not an improper `inference' and do not constitute an abuse of discretion. Id. at * 9, at *25 (quoting Tovar v. Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P., 185 S.W.3d 65, 68 (Tex.App.-San Antonio 2005, pet. denied)). Similarly, the trial court's conclusion that the report implicated the conduct of Dr. Bogar—the only physician named as a defendant—where no other physicians or healthcare providers were implicated in the report can best be characterized as an analysis of the information included in the report, rather than an impermissible venture outside the four corners of the expert report. Because the trial court found Dr. Adame's report to be sufficient, no 30-day extension was ever required, although the appellees requested an extension in the event that the report was found to be deficient. In light of the majority's ruling that Dr. Adame's expert report fails to meet the statutory requirements, "consideration by the trial court of [the appellees'] request for an extension to attempt to cure the defect is warranted." See Austin Heart, 228 S.W.3d at 283. I agree with Justice Patterson's dissent that the trial court acted within its discretion in determining that Dr. Adame's report was sufficient. However, assuming that the report was not sufficient, I would hold in the alternative that Dr. Adame's report is merely deficient, rather than "no report" as to Dr. Bogar, and therefore that the proper remedy is a remand to allow the trial court to determine whether to grant a 30-day extension of time under section 74.351(c), giving the appellees an opportunity to cure any deficiencies.[2] As a result, I respectfully join the dissent. NOTES [1] As we emphasized in Austin Heart—and as suggested by the supreme court in Ogletree, as we discuss below—this is not a "magic words" test. There may be a number of ways that a defendant may be referenced within the four corners a report so as to comply with the legislature's mandate that the report "provide[] a fair summary as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6) (emphasis added). [2] In Apodaca v. Russo, 228 S.W.3d 252, 255-58 (Tex.App.-Austin 2007, no pet.), this Court affirmed a trial court order dismissing a health care liability suit under section 74.351(b) and refusing to grant a 30-day extension under section 74.351(c). The lone defendant was Dr. Russo, a general surgeon, who was alleged to have acted negligently in failing to implement precautions against pulmonary embolism or stroke. The report described various deviations from the standard of care, including failures to properly address deep venous thrombosis prevention or to insert an IVC filter, but did not identify Dr. Russo by name or otherwise. The panel observed that "[a]lthough appellant has sued only Dr. Russo, other doctors and health-care providers are implicated by the facts set forth in the report. The report references other providers as well as their conduct and refers to another doctor by name, but fails to mention Dr. Russo at all." Id. at 257. The panel found the report deficient and no report, reasoning that it did not "specifically identify the defendant and apply the statutory elements to that defendant," id. at 258, and "[i]f a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30-day extension." Id. at 257. We need not consider Ogletree's implications for Apodaca's analysis of the "no report" issue because it is dicta. See Ogletree, ___ S.W.3d at ___, ___, 2007 WL 4216606, at *2-3, 2007 Tex. LEXIS 1028, at *6-8 (emphasizing discretionary nature of 30-day extension when trial court finds expert report deficient). [3] The dissent criticizes this holding, suggesting that we could remand to the probate court in the same manner as in Austin Heart, 228 S.W.3d at 285 (Patterson, J., dissenting). As the dissent has acknowledged in Austin Heart and elsewhere, section 74.351 does not permit such a remedy where, as here, the report constitutes no report. See Austin Heart, 228 S.W.3d at 291 (Patterson, J., dissenting) ("[t]he difference between the two is strategically significant. If the report is `no report,' then the trial court must dismiss the case with prejudice and has no discretion to grant a 30-day extension.") (emphasis in original); Apodaca, 228 S.W.3d at 257 ("If a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30-day extension.") (citing Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex.App.-San Antonio 2005, no pet.)). [4] Appellees similarly suggest that this regime incentivizes medical malpractice defendants to "maintain[] silence until the expert report deadline [to] entirely defeat a valid claim that in any other tort case they would each work affirmatively to defect onto a co-defendant as early as possible." [5] Dr. Bogar does not dispute that appellees preserved their constitutional arguments in the trial court. [6] However, as appellees further recognize, the open courts guarantee, see Tex. Const. art. I, § 13, is not directly implicated in this case because it applies only to common-law causes of action, not their statutory wrongful-death or survival claims. [7] Appellees similarly urge us to "avoid a constitutional confrontation" by remanding the case to afford them the opportunity to amend their expert report. [8] In a footnote in their motion, appellees complain that "Texas courts have never implemented the regime of preliminary disclosures provided in principle in Section 74.352; the plaintiffs had to request disclosures from the defendants, who responded — after the expert report was served — with little or nothing of substance." [9] See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(s), (u); Tex.R. Civ. P. 192.7(a) (defining "written discovery"); see generally Tex.R. Civ. P. 194, 196-98, 200-01. [10] See Tex.R. Civ. P. 215. [1] The hospital settled and was dismissed from the lawsuit. [2] In Palacios, the court faulted the expert report for its conclusory statement that the standard of care required the hospital to have monitored Palacios more closely, restrain him more securely or done something else entirely. The court stated: "Knowing only that the expert believes that American Transitional did not take precautions to prevent the fall might be useful if American Transitional had an absolute duty to prevent falls from its hospital beds." American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 880 (Tex.2001). Here, the trial court may have concluded that the standard of care and duty were clear from the report detailing the "toxic levels of oxycodone along with lethal levels of propoxyphene" that caused the death. [3] The majority's criticism of this approach relies on Apodaca v. Russo, 228 S.W.3d 252 (Tex.App.-Austin 2007, no pet.), and Garcia v. Marichalar, 185 S.W.3d 70 (Tex.App.-San Antonio 2005, no pet.), but those cases are distinguishable in that both involved multiple defendants, whereas here we have only one defendant—Dr. Bogar. [1] I do not take issue with the majority's holding that the appellees, who failed to take full advantage of the discovery tools provided by section 74.351 of the civil practices and remedies code, cannot now argue that the statute imposes an unconstitutional burden by restricting discovery until after expert reports have been served. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(s), (u) (West Supp.2007). However, while the appellees may not have established that section 74.351's discovery limitations prevented them from serving a sufficient expert report, they have also not been given any opportunity to cure deficiencies in Dr. Adame's report, which, until this Court's holding on appeal, had been deemed sufficient as to Dr. Bogar. [2] In addition to arguing that Dr. Adame's report constituted "no report," Dr. Bogar also argues that Dr. Adame, a pathologist, was not qualified to render opinions concerning the standard of care applicable to physical medicine rehabilitation physicians, such as Dr. Bogar. While the majority does not address this contention in light of their holding that the expert report constituted "no report" as to Dr. Bogar, I would hold that even if Dr. Adame is deemed unqualified to render an expert opinion in this case, the appellees should still be afforded the opportunity to request the 30-day extension provided by section 74.351(c). A similar argument regarding expert qualifications was made in Ogletree, in which the appellant asserted that a radiologist was incapable of opining on the standard of care applicable to urologists. Ogletree v. Matthews, No. 06-0502, ___ S.W.3d ___, ___, 2007 WL 4216606, at *2, 2007 Tex. LEXIS 1028, at *4 (Tex. Nov. 30, 2007). In a concurring opinion, Justice Willett stated that the defect in the expert report consisted of "designating the wrong type of medical professionals to opine on standard of care," and that using the wrong type of expert "is the type of defect for which a trial court may grant a discretionary section 74.351(c) extension." Id. at *6, at *18 (Willett, J., concurring).

12 F.3d 1101 73 A.F.T.R.2d 94-648 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Arthur W. ROSS, Sr., Plaintiff-Appellant,v.Shirley D. PETERSON, Defendant-Appellee. No. 92-3753. United States Court of Appeals, Seventh Circuit. Submitted Nov. 16, 1993.*Decided Nov. 23, 1993. Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges. Order Insisting that Shirley D. Peterson, former Commissioner of Internal Revenue, is personally liable to him for her role in a tax system that has led to his indictment and imprisonment (not to mention indignities suffered along the way), Arthur W. Ross, Sr., appeals the district court's dismissal of this Bivens action. Ross does not rely on Bivens, indeed does not distinguish constitutional from common law theories, or torts from violations of the Administrative Procedure Act, but he has named Peterson individually (and disdains any official-capacity action), so it is Bivens or nothing. Cf. Bivens v. Six Unknown Agents, 403 U.S. 388, 410 (1971) (Harlan, J., concurring). 1 The Department of Justice has treated this as an official-capacity suit, filing a brief on behalf of "The Commissioner of Internal Revenue" and insisting that the case must be dismissed because the United States (the Commissioner's alter ego) has not waived its immunity from damages. Yet Ross did not file an official-capacity suit; he filed a personal-capacity suit against Peterson (well, actually he sued "Mrs. Shirley Peters", but everyone got the drift). The Westfall Act, 28 U.S.C. Sec. 2679, provides a means by which the United States may be substituted as a defendant in litigation against federal employees. Instead of following the procedures specified in that statute--inapplicable to the constitutional claim Ross apparently seeks to pursue, see Sec. 2679(b)(2)(A)--the Department of Justice has proceeded as if a substitution had been accomplished. Such a head-in-the-sand posture would do a serious disservice to Ms. Peterson if Ross had a glimmer of a claim. But he does not, so we bring this litigation to a close. 2 Having named Peterson as the sole defendant, Ross had to establish that she, personally, violated his constitutional rights. That minions of the Treasury Department may have done so is irrelevant; Ross must identify the persons who did him harm and sue them, not choose as a convenient target the head of a bureau in which they serve. If Ross had troubled to name the right defendant, he still would have encountered substantial barriers in separating constitutional from other theories (mentioning the fourth and fifth amendments, as Ross does, falls well short of showing that anyone has violated these amendments), in immunity doctrines, and in the limits on Bivens litigation when Congress has established other means of redress. See Cameron v. IRS, 773 F.2d 126 (7th Cir.1985); see also Schweiker v. Chilicky, 487 U.S. 412 (1988); Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983). No matter; Ross does not get over the first hurdle. 3 Defendant has asked for sanctions on account of Ross's abuse of process, culminating in this frivolous appeal. Ross is a tax protester who has refused to accept the law despite his criminal conviction and is trying to lash back at those who administer the tax system. Retaliation is not a proper use of the judicial system. We regularly impose sanctions in cases of this character, see Coleman v. CIR, 791 F.2d 68, 73 (7th Cir.1986); McLaughlin v. CIR, 832 F.2d 986, 988 (7th Cir.1987), and do so here as well. The district court told Ross this suit is frivolous; he persisted, ignoring the reasons that court gave. Defendant's brief asked for sanctions; Ross ignored that request. In light of the bypassed opportunity, Circuit Rule 38 does not require a further round of notices. Colosi v. Electri-Flex Co., 965 F.2d 500, 505 (7th Cir.1992). We direct Ross to pay $1,500 in damages under Fed.R.App.P. 38. 4 AFFIRMED WITH SANCTIONS. * After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a), Circuit Rule 34(f). No such statement has been filed, so the appeal is submitted for decision on the briefs and record

544 P.2d 1010 (1976) Myron E. BRYANT, Appellant (Defendant below), Doyle D. Hendrickson and A.H. Hendrickson (Defendants below), v. WYBRO FEDERAL CREDIT UNION, a corporation, Appellee (Plaintiff below). No. 4515. Supreme Court of Wyoming. January 21, 1976. Rehearing Denied February 24, 1976. *1011 Ronald W. Hofer of Leimback, Aspinwall & Hofer, Casper, for appellant. Fred W. Layman, Casper, for appellee. Before GUTHRIE, C.J., and McCLINTOCK, RAPER, THOMAS, and ROSE, JJ. PER CURIAM. This is an appeal from an order of the district court denying a motion of defendant Myron E. Bryant to set aside a default judgment earlier entered by the court against him upon the ground that there was no jurisdiction of this defendant because of a failure to serve him. Wybro Federal Credit Union's service rests upon the following return set out in material part: "* * * by delivering to Myron E. Bryant by leaving a copy with D. Hendrickson as agent for service and accepting service in Natrona County, Wyoming." Based upon this service judgment was entered against Bryant. Execution issued thereon which was directed against certain real estate of the said Bryant, and this property was sold at a sheriff's sale and the sale was confirmed. Although there is a certificate of the sheriff that Hendrickson claimed to be the agent for Bryant and is alleged to have represented himself to the sheriff as such agent, the court heard evidence in connection with the determination of this motion, and there was no evidence produced at that hearing that Hendrickson had ever been authorized as agent for such service or empowered to accept service for this defendant. The court, in disposing of this matter, observed: "* * * There is no testimony of agency here, or of authorization. * * *" From our inspection of the record and the statement of the judge that there was an absence of any agency or authorization, the question presented herein becomes an extremely narrow one. Accepting this finding, there was no valid service or compliance with Rule 4(d)(1), W.R.C.P., which provides service shall be made by delivery "to an agent authorized by appointment or by law to receive service of process." In light of this rule and the finding, a disposal rests firmly in the law of this state. The case of Pease Brothers, Inc. v. American Pipe & Supply Co., Wyo., 522 P.2d 996, 1001, is most persuasive in this case. The summons therein was served upon an admitted employee of the corporation although not in the county where the suit was brought, *1012 and unlike this case the employee did forward the summons and complaint to the proper officers who had actual notice. The holding of that case was that judgment entered without proper service of summons or appearance was void, and if service were made in a manner not authorized by law the judgment was void and subject to attack, either directly or collaterally. When the court found, and the record so reveals, that Hendrickson was not the authorized agent for such service, it becomes readily apparent that this service was not made in the manner authorized by law. In other cases this court has said that ordinarily courts gain jurisdiction of a civil suit by the filing of a complaint along with the issuance and service of summons, Weber v. Johnston Fuel Liners, Inc., Wyo., 519 P.2d 972, 977. The case of Robertson v. State Highway Commission, Wyo., 450 P.2d 1003, 1004, calls attention to the fact that Rule 4, W.R.C.P., contains "the fundamental requisites of process which are essential in giving a court jurisdiction." Service upon a person not authorized to act as such agent for process is not compliance with the fundamental or basic requirements of this rule. This court does not think it amiss to call attention to the case of Vanover v. Vanover, 77 Wyo. 55, 307 P.2d 117, 119, 62 A.L.R.2d 931, which suggests the dangers of fraud if the method of service is enlarged beyond that of the then statute, and this seems particularly applicable in this case when the rule requires service upon an agent "authorized by appointment." Although there is much extraneous material, and suggestions and argument are made that there was actual notice to Bryant and that he had knowledge of the proceeding, or that he is in some way estopped to deny this service, there is no way in our view that this void judgment may be made to rise from the dead, so discussion of these questions would be useless. The motion to set aside this judgment should have been sustained. The case is therefore remanded with instructions to set aside this judgment insofar as the appellant Bryant is concerned.

87 F.3d 1309 NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Timothy POOLE, Plaintiff-Appellant,v.William SMITH, Warden for The Maryland House ofCorrection-Annex; Gary Hornbaker, AssistantWarden for the Maryland House ofCorrection-Annex; OtherUnnamed Defendants,Defendants-Appellees. No. 96-6250. United States Court of Appeals, Fourth Circuit. Submitted: May 16, 1996.Decided: June 5, 1996. Timothy Poole, Appellant Pro Se. Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges. PER CURIAM: 1 Appellant appeals from the district court's order denying relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Poole v. Smith, No. CA-96-270-AMD (D.Md. Feb. 5, 1996). 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

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 07 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS In re: MICHAEL DYLAN HENSHAW; No. 13-15331 KIMBERLY HENSHAW, D.C. No. 1:12-cv-00513-JMS- Debtors, BMK ----------------------------- PHILIP DANIEL HENSHAW; MEMORANDUM* BARBARA WRESSEL HENSHAW, Debtors-Appellants, v. DANE S. FIELD, Trustee of the Bankruptcy Estate of Michael Dylan Henshaw and Kimberly Henshaw, Trustee-Appellee. Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, Chief District Judge, Presiding Argued and Submitted October 19, 2016 Honolulu, Hawaii * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: WALLACE, FARRIS, and WATFORD, Circuit Judges. Philip and Barbara Henshaw (Henshaw Parents) appeal from the district court’s summary judgment in favor of Dane Field, trustee of the bankruptcy estate of Michael and Kimberly Henshaw. We have jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm. Under 11 U.S.C. § 548(a)(1), as is relevant here, a transfer is constructively fraudulent, and can thus be voided by a bankruptcy trustee, if: (1) the transfer was made within two years of the debtor’s bankruptcy filing; (2) the debtor received less than a reasonably equivalent value in exchange for such transfer; and (3) the debtor was insolvent on the date that such transfer was made. At issue in our case is the December 2009 transfer of Michael and Kimberly Henshaw’s interest in the subject property to the Henshaw Parents. The Henshaw Parents do not dispute that elements (1) and (3) of 11 U.S.C. § 548(a)(1) have been satisfied—the transfer was made within two years of Michael and Kimberly’s bankruptcy filing and they were insolvent at the time of the transfer. The Henshaw Parents, however, assert that there is a triable issue as to whether Michael and Kimberly received reasonably equivalent value in exchange for the transfer. The 2007 deed granted title to Michael Henshaw, Kimberly Henshaw, Philip Henshaw, and Barbara Henshaw “as joint tenants, their assigns and the survivor of 2 them, and the heirs, personal representatives and assigns of the survivor of them, in fee simple, forever.” Under Hawaii law, “a joint tenant has a specific, albeit undivided, interest in the property, and if he survives his cotenant he becomes the owner of a larger interest than he had prior to the death of the other joint tenant.” Sawada v. Endo, 57 Haw. 608, 613, 561 P.2d 1291, 1295 (1977). The bankruptcy court determined that the meaning of “joint tenants” was unambiguous, and applied the parol evidence rule to determine that Michael and Kimberly had a 50% interest in the property. As a result, there was no issue of material fact as to whether Michael and Kimberly received reasonably equivalent value for their interest (they did not) and the bankruptcy court granted summary judgment on this basis. The district court agreed. The precise issue before us is whether the district court erred by refusing to consider extrinsic evidence that would modify the plain terms of the 2007 deed. We conclude that the district court properly applied the Hawaii parol evidence rule to exclude such evidence. In Midkiff v. Castle & Cooke, Inc., the Hawaii Supreme Court held: Since there is no ambiguity in the deed as construed, the parol evidence rule applies. The extrinsic evidence of the surrounding facts and circumstances existing prior to, contemporaneously with and subsequent to the execution of the deed, as alleged in the amended complaint, is not 3  competent to contradict, defeat, modify or otherwise vary the meaning or legal effect of the deed. 45 Haw. 409, 421, 368 P.2d 887, 894 (1962). So too here. There is no ambiguity in the 2007 deed and thus the parol evidence rule bars the introduction of extrinsic evidence. The Henshaw Parents largely rely on the Hawaii intermediate appellate court’s decision in Fukunaga v. Fukunaga, 8 Haw. App. 273, 800 P.2d 618 (1990), to support their argument that extrinsic evidence should be considered to determine the joint tenants’ true relationship. Fukunaga involved a partition action between feuding family members who were joint tenants. Despite being named as joint tenants, one family member argued that the other had merely been added as a joint tenant to help secure a mortgage, and thus did not enjoy the full ownership rights of a joint tenant. The Hawaii appellate court concluded that the parol evidence rule was inapplicable to this evidence. Fukunaga, however, is distinguishable from our case, in that it did not arise in the bankruptcy context. While it is a maxim of bankruptcy law that the trustee stands in the shoes of the debtor, the trustee has a fiduciary duty not only to the debtor, but also to the creditors and to the estate. Thus, third parties such as bankruptcy trustees must be able to rely on the face of an unambiguous deed, 4 without the need to consult parol evidence. See In re Teranis, 128 F.3d 469, 471–72 (7th Cir. 1997). Accordingly, the district court did not err in ruling on the parol evidence question. AFFIRMED. 5 

9 So.3d 634 (2009) ORANGE WEST UTILITIES, INC. v. WESTSIDE TOWNHOUSES, INC. No. 5D08-3251. District Court of Appeal of Florida, Fifth District. May 19, 2009. Decision without published opinion. Affirmed.

141 F.Supp. 862 (1955) In the Matter of JOHN S. GOFF, Inc., Bankrupt. No. 24261. United States District Court D. Maine, S. D. August 8, 1955. Silas Jacobson, Portland, Me., Trusteeship, and Herbert H. Sawyer, Portland, Me., for trustee. Peter Mills, U. S. Atty., Portland, Me., John M. Doukas, Asst. Regional Counsel, Internal Revenue Division, Boston, Mass., John T. Burke, Jr., Chief of Special Proceedings, Office of the District Director of Internal Revenue, Augusta, Me., for the Government. CLIFFORD, District Judge. This action comes before this Court upon a petition filed by the Trustee to review an order of the Referee in Bankruptcy, which allowed delinquent tax penalties properly assessed and included in a valid lien perfected and filed prior to bankruptcy. The facts are undisputed. On January 12, 1954, the Director of Internal Revenue for the District of Maine, filed a proof of claim in the bankruptcy proceedings of John S. Goff, Inc., for withholding and employment taxes for the quarters ending June 30, 1953, and September *863 30, 1953. The total amount of the claim is $6,447.93. This amount is made up of $5,548.65 tax, $833.40 penalties and $65.88 interest. It was conceded by stipulation between the parties that a notice of tax lien was properly recorded in the appropriate registry of deeds prior to the date the bankruptcy petition was filed. The sole question presented before this Court is whether a claim for tax penalties seasonably filed by the Director of Internal Revenue is allowable where the notice of tax lien was properly recorded prior to the filing of the bankruptcy petition. Section 57, sub. j of the Bankruptcy Act, 11 U.S.C.A. § 93, sub. j provides that: "Debts owing to the United States or to any State or any subdivision thereof as a penalty or forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby and such interest as may have accrued on the amount of such loss according to law." The Trustee, in filing objections to so much of the claim as related to penalties, contends that section 57, sub. j applies and precludes the allowance of a claim for penalties. The precise question, although of novel impression in this Court, was considered in In re Knox-Powell-Stockton Co., 9 Cir., 1939, 100 F.2d 979 and in Commonwealth of Kentucky ex rel. Unemployment Compensation Comm. v. Farmers Bank & Trust Co., 6 Cir., 1943, 139 F.2d 266. In both cases the court held that even though section 57, sub. j of the Bankruptcy Act precludes the allowance of a claim for penalties, adjudication in bankruptcy does not affect a valid and existing lien, consequently where a lien exists to support a penalty at the time of adjudication, section 57, sub. j does not come into operation. The holding of the Knox-Powell-Stockton case, supra, is based upon the principle that adjudication in bankruptcy does not interfere with existing valid liens and that the Trustee takes the property of the bankrupt subject to all such liens as would have been enforceable against it in the hands of the bankrupt itself. The Ninth Circuit in this instance stated that this principle was made clear by section 67, sub. d of the Bankruptcy Act of 1898, 11 U.S.C.A. § 107, sub. d. In the case of In re Burch, D.C.Kan. 1948, 89 F.Supp. 249. The court disagreed with the holding in Knox-Powell-Stockton that section 57, sub. j of the Bankruptcy Act does not apply where a penalty is secured by a lien which arose prior to the institution of a bankruptcy proceeding and held that section 57, sub. j does apply to prevent the enforcement of a federal tax lien securing a penalty. In this decision the court states that the Knox-Powell-Stockton case was based primarily on the provisions of section 67, sub. d of the Bankruptcy Act of 1898, and points out that since section 67, sub. d was repealed by the Chandler Act, the effect of the opinion in Knox-Powell-Stockton is nullified. Another case expressly disagreeing with Knox-Powell-Stockton is In re Hankey Baking Co., D.C.Pa.1954, 125 F.Supp. 673. This Court believes that the judicial construction placed on section 57, sub. j by the Knox-Powell-Stockton decision more closely indicates the intention of the Congress. In support of this conclusion there is noted the case of Goggin v. Division of Labor Law Enforcement, of California, 1949, 336 U.S. 118, 126, 69 S.Ct. 469, 93 L.Ed. 543, a decision rendered since the Chandler Act, wherein it was stated that liens perfected before bankruptcy are safeguarded by the Bankruptcy Act and to support this statement, the Court cites the Knox-Powell-Stockton case with evident approval. Furthermore, it is believed that the substance of the provisions of section 67, sub. d, have been incorporated in the redrafted Sections 60, 67 and 70 of the Act. This view was recognized in the *864 case of Oppenheimer v. Oldham, 5 Cir., 1949, 178 F.2d 386, 389, wherein it was stated: "It has always been a fundamental principle of the bankruptcy law that the property rights and interests designated as liens and pledges, when valid in bankruptcy, shall not be impaired in the administration of a bankrupt estate. The Chandler Act manifests no intent to deviate from that principle. It is true that in the revision of Sec. 67, sub. d the Chandler Act did not retain the old language saying expressly that liens valid in bankruptcy shall `not be affected by anything herein', but that provision was simply declaratory of the obvious import reflected, and still reflected, frequently in the substantive terms of the law, and the omission of such redundancy is not significant." The Tenth Circuit considering the same issue in Grimland v. United States, 1953, 206 F.2d 599, a case decided after the 1952 amendment to section 57, sub. j, followed the reasoning of the Knox-Powell-Stockton case stating at page 601 of 206 F.2d: "It may well be that Congress had in mind that claims for tax penalties should not be allowed in bankruptcy, even though a lien has been perfected before adjudication, but the language of 57, sub. j, does not adequately express that intent." This Court's conclusion in this case is strengthened when the 1952 amendment to section 57, sub. j of the Bankruptcy Act is examined. No doubt Congress was mindful of the construction placed on section 57, sub. j by In re Knox-Powell-Stockton Co. and Commonwealth of Kentucky ex rel. Unemployment Compensation Comm. v. Farmers Bank & Trust Co., supra, which did not bar penalties supported by liens perfected prior to bankruptcy. In examining whether Congress intended to spell out a contrary purpose in the amended section, this Court adheres to the rule that as an aid in the construction of a statute, it is to be assumed or presumed that the Legislature was acquainted with, and had in mind the judicial construction of former statutes on the subject, and that the statute was enacted in the light of the judicial construction that the prior enactment had received, or in the light of such existing judicial decisions as have a direct bearing upon it. Such earlier decisions must accordingly be taken into consideration. Thus, in the interpretation of statutory law after an amendment thereof, the courts may take into consideration the construction by earlier decisions of the statute before its amendment. Trullinger v. Rosenblum, D.C. Ark.1954, 125 F.Supp. 758, 768. Accordingly, if the Congress at the time it amended sec. 57, sub. j had not been satisfied with the interpretation placed upon it by Knox-Powell-Stockton and cases following it, undoubtedly Congress would have said so. The amendment, however, does not in any respect affect that interpretation. In re Urmos, D.C.Mich.1955, 129 F.Supp. 298. It is therefore Ordered, Adjudged, and Decreed that the Order of the Referee be and hereby is affirmed.

T.C. Memo. 1997-290 UNITED STATES TAX COURT GEORGE L. WILLIS AND D. THOMAS-WILLIS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 10597-95.1 Filed June 26, 1997. George L. Willis and D. Thomas-Willis, pro sese. Elaine L. Sierra and Thomas G. Schleier, for respondent. MEMORANDUM OPINION WOLFE, Special Trial Judge: This case was heard pursuant to the provisions of section 7443A(b)(3) and Rules 180, 181, and 182. All section references are to the Internal Revenue Code in 1 By order dated Feb. 20, 1996, this case was removed from small tax case status and the letter "S" was deleted from the docket number.  - 2 - effect for the taxable year in issue, unless otherwise indicated. All Rule references are to the Tax Court Rules of Practice and Procedure. Respondent determined a deficiency in petitioners' 1992 Federal income tax in the amount of $1,320. After concessions, the issue for decision is whether petitioner George L. Willis' 1992 Social Security benefits include the worker's compensation payments he received during that year. The deficiency resulted from respondent's determination that petitioners failed to include $8,833 of petitioner George L. Willis' 1992 Social Security benefits in taxable income. Respondent conceded that the unreported income attributable to the taxable portion of petitioner George L. Willis' Social Security benefits is a lesser amount than the $8,833 asserted in the notice of deficiency, based on the limitation provisions of section 86(e), and that such lesser amount is $7,378. Petitioners conceded that if the worker's compensation that petitioner George L. Willis received in 1992 is taxable as Social Security benefits, petitioners are liable for tax on unreported income in the amount of $7,378. Some of the facts have been stipulated and are so found. The stipulated facts and attached exhibits are incorporated by reference. Petitioners resided in Union City, California, when  - 3 - their petition was filed. Hereafter, references to petitioner in the singular shall denote George L. Willis. On July 3, 1985, petitioner suffered a career-ending back injury while performing services as a longshoreman in the employ of Matson Terminals, Inc. (Matson). As a result of petitioner's back injury, and in accordance with the Longshore and Harbor Workers' Compensation Act (currently codified at 33 U.S.C. secs. 901-950 (1994)), Matson paid worker's compensation benefits to petitioner for temporary disability from July 4, 1985, to July 8, 1991, and for permanent disability from July 9, 1991, through and including taxable year 1992.2 In addition to receiving worker's compensation benefits during 1992, petitioner received Social Security disability benefits. A Notice of Award dated January 4, 1991, from the Office of Disability and International Operations of the Social Security Administration, announced that petitioner was "entitled to monthly disability benefits from Social Security beginning March 1990." However, the notice explained: 2 In 1993, petitioner and Matson reached a settlement resolving petitioner's worker's compensation claim relating to his 1985 injury as well as a claim relating to a 1980 injury. Matson paid the settlement amount due to petitioner in 1993. The parties have stipulated that the settlement of petitioner's worker's compensation claims in 1993 did not affect his worker's compensation benefits or Social Security disability benefits paid in prior years.  - 4 - When we figure how much to pay you, we must deduct certain amounts, such as Medicare premiums and worker's compensation offset. * * * * * We have to take into account your weekly workers' compensation payment * * * when we figure your Social Security benefits. Because you receive this payment, we are withholding the benefits you are due. Petitioner's 1992 Form SSA-1099, Social Security Benefit Statement, reports that petitioner received total benefits for 1992 in the amount of $20,412.70. The Form SSA-1099 reports that $770 of that total was paid by check or direct deposit, $318 was attributable to Medicare premiums, and $19,324.70 was attributable to worker's compensation offset. On their 1992 Form 1040, U.S. Individual Income Tax Return, filed jointly, petitioners reported Social Security benefits received in the amount of $1,352. They further reported that only $338 of that amount was taxable. Petitioners reported adjusted gross income for 1992 in the amount of $40,474.18. Respondent determined that the worker's compensation petitioner received during 1992 must be included in his Social Security benefits. The deficiency at issue results from the corresponding increase in petitioners' adjusted gross income because of such inclusion. Petitioner contends that his worker's compensation benefits should not be taxable because Matson paid them from a self- insured fund.  - 5 - Gross income includes "all income from whatever source derived", unless specifically excluded. Sec. 61(a). Generally, gross income does not include "amounts received under workmen's compensation acts as compensation for personal injuries or sickness." Sec. 104(a)(1). However, gross income generally includes Social Security benefits in an amount equal to the lesser of: (1) one-half of such benefits received during the taxable year, or (2) one-half of the excess over certain base amounts. Sec. 86(a). The base amount for taxpayers filing a joint return for taxable year 1992 is $32,000. Sec. 86(c)(2). Section 86(d)(3) provides that if any Social Security benefit is reduced by reason of the receipt of a benefit under a workmen's compensation act, the term "social security benefit" includes that portion of such benefit received under the workmen's compensation act which equals such reduction. Section 86 was added by the Social Security Amendments of 1983, Pub. L. 98-21, sec. 121, 97 Stat. 80. The House report states in relevant part: Your Committee's bill provides that social security benefits potentially subject to tax will include any workmen's compensation whose receipt caused a reduction in social security disability benefits. For example, if an individual were entitled to $10,000 of social security disability benefits but received only $6,000 because of the receipt of $4,000 of workmen's compensation benefits, then, for purposes of the provisions taxing social security benefits, the individual will be considered to have received $10,000 of social security benefits.  - 6 - H. Rept. 98-25, at 26 (1983), 1983 U.S.C.C.A.N. 219, 244. The facts are not in dispute. Petitioners stipulated that during 1992, petitioner received worker's compensation payments in the amount of $19,324.70, and that the Social Security disability benefits he was otherwise entitled to receive for that year were reduced, or offset, by an equivalent amount. Petitioner's 1992 Form SSA-1099 reports the same undisputed facts. The language of section 86(d)(3) is unambiguous and the statute contains no exceptions. Neither the clear language of the statute nor the explanation in the legislative history quoted above provide any suggestion of a modification or exception based on the circumstance that petitioner's worker's compensation benefits were paid from the employer's self-insured fund. Pursuant to section 86(d)(3), we must hold that petitioner's Social Security benefits for 1992 include the $19,324.70 offset corresponding to his worker's compensation payments. Respondent is sustained on this issue. Decision will be entered under Rule 155. 

Case: 09-40978 Document: 00511385335 Page: 1 Date Filed: 02/17/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED February 17, 2011 No. 09-40978 Lyle W. Cayce Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. RAUL SANCHEZ-MORALES Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-404-1 Before JONES, Chief Judge, JOLLY, and GARZA, Circuit Judges. PER CURIAM:* Raul Sanchez-Morales was charged with two counts of transporting illegal aliens within the United States by means of a motor vehicle, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and § 1324(a)(1)(B)(ii). At the close of the Government’s case, Sanchez-Morales unsuccessfully sought a judgment of acquittal. He did not put on a case in his defense, choosing instead to rely on the argument that the Government failed to carry its burden of proof. The jury convicted Sanchez-Morales on both counts. He raises only one issue on appeal: * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.  Case: 09-40978 Document: 00511385335 Page: 2 Date Filed: 02/17/2011 No. 09-40978 whether the evidence was sufficient to support his conviction. For the reasons stated herein, we affirm. On the afternoon of the events in question in this case, Three Rivers Police Department Officer Jesus Rodriguez stopped a car heading northbound on Highway 281 for carrying an expired inspection sticker. Sanchez-Morales was driving; a woman—now identified as Raquel Abigail Mendieta-Gonzalez—was seated in the front passenger seat; and three men were in the back seat. One of the male passengers was sitting on the floorboards. Officer Rodriguez testified that the passengers’ clothing was “filthy” and that the passengers “looked just hot and sweaty” and “like they hadn’t bathed in days.” Officer Rodriguez also noted some half-full water bottles in the car. Officer Rodriguez testified at trial that Sanchez-Morales told him that he and the passengers were from Mexico. Although Sanchez-Morales was able to produce proof of insurance, his only form of identification was a Mexican identification card. Officer Rodriguez spoke to the passengers and confirmed that they were from Mexico. He called United States Customs and Border Patrol (“CBP”). CBP Agent Roman Salinas received the call and came to the scene. When he arrived, he found Sanchez-Morales and his passengers handcuffed and sitting down. Agent Salinas testified that four of the five handcuffed individuals appeared dirty, while one appeared clean. He testified that Mendieta-Gonzalez was “limping pretty bad” and told him that she had sprained her ankle and had a blister on her foot. Agent Salinas spoke with the handcuffed individuals to confirm their citizenship and nationality, after which he advised them of their rights and transported them to a CBP station. Agent Salinas testified that some of the individuals had scratches and some asked him for water. He said they had no luggage and smelled of sweat and brush, “like they’d been out in the woods a couple days.” He ran background checks and confirmed the passengers’ immigration status. 2  Case: 09-40978 Document: 00511385335 Page: 3 Date Filed: 02/17/2011 No. 09-40978 Border Patrol Agent Luis Solis testified that, at the time, he was a prosecutions officer at the CBP station. The morning after Sanchez-Morales was originally detained, Agent Solis gave Sanchez-Morales a copy of the complaint against him, advised him of his rights, and explained how the criminal process would ensue. Sanchez-Morales stated that he had lied to the officials earlier and that the reason he had lied was that he feared retaliation if he were to tell the truth. We do not know, from the record, what earlier statement was supposedly a lie. Agent Solis, who interacted with Mendieta-Gonzalez as well as Sanchez- Morales, testified that Mendieta-Gonzalez was “very sore” and “could hardly walk.” He testified that, when it came time to transport her, she needed help getting into a van. Two of the passengers were held as material witnesses: Mendieta- Gonzalez and her husband, Miguel Guerrero-Villarreal. They gave sworn statements to CBP agents. The parties filed a stipulation in the district court that, if Mendieta-Gonzales and Guerrero-Villarreal were present in court and under oath, they would have testified in accordance with their statements. Mendieta-Gonzalez and Guerrero-Villarreal’s statements were admitted into evidence, and Mendieta-Gonzalez and Guerrero-Villarreal did not testify at trial. Guerrero-Villarreal stated that he was a citizen of Mexico with no documentation authorizing his presence in the United States. According to Guerrero-Villarreal, he met a young man in Matamoros, Tamaulipas, Mexico, who agreed to help him cross into the United States in exchange for $600. After crossing the river, Guerrero-Villarreal and others walked to a nearby area in the brush where they were picked up by a man in a pick-up truck. The man drove them to a brick house in Brownsville, where they made arrangements with the homeowner to be smuggled to Houston, Texas, in exchange for $1,800. One day later, a man in a different pick-up truck drove them for “about one and a half to two hours” to an unknown location near the brush. Guerrero-Villarreal 3  Case: 09-40978 Document: 00511385335 Page: 4 Date Filed: 02/17/2011 No. 09-40978 continued that he and seven others, including a guide, were dropped off near the brush. The party walked in the brush for two days and three nights, resting occasionally. The guide finally brought them to a house near the side of the road. Approximately five hours later, a man in a green vehicle, later identified as Sanchez-Morales, arrived. Guerrero-Villarreal stated that it was his understanding that Sanchez-Morales was there to take them to Houston, and that Guerrero-Villarreal was to pay another party $1,800 in Houston. The guide told Guerrero-Villarreal, Mendieta-Gonzalez, and two others to get in Sanchez-Morales’s vehicle. After driving for an hour, the car was stopped by police. Guerrero-Villarreal confirmed that Mendieta-Gonzalez traveled with him the entire way. Mendieta-Gonzalez told a similar story, adding that she injured her ankle and developed a large blister while walking through the brush. She stated that Sanchez-Morales did not speak to her while he was driving, but that she believed Sanchez-Morales knew she was in the country illegally because it was “obvious.” Guerrero-Villarreal similarly stated that he believed that Sanchez-Morales knew of his immigration status. As Sanchez-Morales correctly points out, however, neither witness revealed direct knowledge of Sanchez- Morales’s state of mind. “We review a claim of insufficiency of the evidence narrowly and affirm if a rational trier of fact could have found the evidence established the essential elements of guilt beyond a reasonable doubt.” United States v. Villegas-Rodriguez, 171 F.3d 224, 227-28 (5th Cir. 1999) (citations omitted). “Our role does not extend to weighing the evidence or assessing the credibility of witnesses.” United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). “[A]ll reasonable inferences from the evidence must be construed in favor of the jury verdict.” United States v. Thomas, 627 F.3d 146, 154 (5th Cir. 2010) (citations and quotation marks omitted). “‘Direct and circumstantial evidence are given equal weight, and the evidence need not exclude every reasonable hypothesis of 4  Case: 09-40978 Document: 00511385335 Page: 5 Date Filed: 02/17/2011 No. 09-40978 innocence.’” United States v. Dien Duc Huynh, 246 F.3d 734, 742 (5th Cir. 2001) (quoting United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000)). “Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, . . . be sufficient to constitute conclusive proof.” Thomas, 627 F.3d at 154 (citations and quotation marks omitted). “[T]he jury is free to choose among reasonable constructions of the evidence.” Lopez, 74 F.3d at 577 (citing United States v. Salazar, 66 F.3d 723, 728 (5th Cir. 1995)). A conviction for transportation of illegal aliens in violation of §§ 1324(a)(1)(A)(ii) and (B)(ii) requires that the Government show beyond a reasonable doubt that “(1) an alien entered or remained in the United States in violation of the law, (2) [the defendant] transported the alien within the United States with intent to further the alien’s unlawful presence, and (3) [the defendant] knew or recklessly disregarded the fact that the alien was in the country in violation of the law.” United States v. Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002) (citations omitted). Sanchez-Morales does not dispute that the Government established the first of these elements; rather, he argues that the evidence is insufficient to support his conviction in two regards: first, the evidence is insufficient to show that Sanchez-Morales transported Guerrero- Villarreal and Mendieta-Gonzalez with the intent to further their unlawful presence; and second, the evidence is insufficient to show that he knew, or recklessly disregarded, the fact that Guerrero-Villarreal and Mendieta-Gonzalez were in the country in violation of the law. The Government counters that the jury permissibly gleaned Sanchez-Morales’s knowledge and intent to further from the evidence in the record regarding his activities and behavior on the day of the arrest, the physical appearance and condition of his passengers, and his later admission that he lied to police. Upon review of the record, we agree with the Government. Mendieta- Gonzalez and Guerrero-Villarreal paid third parties to smuggle them into the 5  Case: 09-40978 Document: 00511385335 Page: 6 Date Filed: 02/17/2011 No. 09-40978 United States, and it was through the actions of those third parties that they eventually came into contact with Sanchez-Morales. Sanchez-Morales picked up his passengers and drove them, largely without speaking, north toward their destination. Testimony showed that those passengers were not merely dirty, but were dressed in filthy clothing and smelled strongly of body odor and brush. Mendieta-Gonzalez was, despite her young age,1 in readily observable poor physical condition. All of these facts are consistent with the inferences that Sanchez-Morales must have known that his passengers were in the process of completing a physically taxing illegal migration, and that, by driving them, he intended to act in furtherance thereof. After he was detained, moreover, Sanchez-Morales stated that he had lied to officials out of fear of retaliation, strongly corroborating the inference that he knew he was acting in furtherance of illegal activity. Construing the evidence in the light most favorable to the verdict, and permitting the jury all reasonable inferences, we find the foregoing facts sufficient to support conviction. For the reasons above, the judgment of the district court is AFFIRMED. 1 She stated that she was born in 1985. 6 

FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 3, 2018 Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-2124 MANUEL CHAVEZ-MORALES, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:16-CR-04013-WJ-1) _________________________________ John V. Butcher, Assistant Federal Public Defender (Michael A. Keefe, Assistant Federal Public Defender on the briefs), Albuquerque, New Mexico, for Defendant – Appellant. Paul J. Mysliwiec, Assistant United States Attorney (James D. Tierney, Acting United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff – Appellee. _________________________________ Before MATHESON, McKAY, and McHUGH, Circuit Judges. _________________________________ McHUGH, Circuit Judge. _________________________________ Manuel Chavez-Morales appeared before the district court following his fifth conviction for an illegal reentry offense. At sentencing, Mr. Chavez-Morales argued that higher wages in the United States motivated his decision to illegally reenter the United States. Focusing heavily on Mr. Chavez-Morales’s criminal history and noting that none of the earlier sentences deterred Mr. Chavez-Morales from reoffending, the district court imposed an upward variant sentence of thirty-six months’ imprisonment. The district court also imposed a three-year term of supervised release.1 On appeal, Mr. Chavez-Morales challenges the procedural reasonableness of his term of imprisonment. Specifically, he contends the district court did not meaningfully consider his argument that economic opportunities motivated his decision to illegally reenter the United States and thereby mitigated the seriousness of his offense. Mr. Chavez-Morales separately contends the district court committed plain error by imposing a term of supervised release without acknowledging or considering United States Sentencing Guidelines Manual (U.S.S.G.) § 5D1.1(c), which states a court “ordinarily” should not impose a term of supervised release when “the defendant is a deportable alien who likely will be deported after imprisonment.” We affirm the district court’s judgment. As to Mr. Chavez-Morales’s term of imprisonment, the transcript of the sentencing hearing establishes that, on three occasions, the district court addressed Mr. Chavez-Morales’s economic motivation argument. As to the imposition of a term of supervised release, while the district 1 The term of supervised release was, in fact, “unsupervised with mandatory and standard conditions” and the special condition that Mr. Chavez-Morales “not illegally re-enter the United States.” ROA Vol. 3 at 30. Although Mr. Chavez- Morales was not subject to supervision, for ease of reference, we refer to the term as a term of supervised release. 2 court erred by not acknowledging and considering U.S.S.G. § 5D1.1(c), Mr. Chavez- Morales has not carried his burden on the third prong of the plain error analysis. I. BACKGROUND A. Mr. Chavez-Morales’s History, Characteristics, & Offense Conduct Mr. Chavez-Morales, age fifty-six at the time of his most recent offense, is a citizen of Mexico. As a result of his family’s financial struggles, Mr. Chavez- Morales entered the work force at a young age. By the 1980s, Mr. Chavez-Morales lived in the United States. According to records obtained by probation services, Mr. Chavez-Morales was the subject of an order of removal issued in 1986. Whether the order of removal was executed is not clear, but Mr. Chavez-Morales was present in the United States in the mid and late 1990s, as is evident by four Colorado convictions. By January 2000, however, Mr. Chavez-Morales had returned to Mexico. On January 30, 2000, Mr. Chavez-Morales was detained when trying to enter the United States with fifty-three pounds of marijuana. He was deported in August 2000. In June 2002, Mr. Chavez-Morales returned to the United States, resulting in a conviction for reentry of a deported alien previously convicted of an aggravated felony, for which he incurred a sentence of twenty-four months’ imprisonment, followed by three years’ unsupervised release. Mr. Chavez-Morales was deported in March 2004. In December 2006, Mr. Chavez-Morales attempted to cross into the United States, presenting fraudulent documents to Border Patrol agents at a port of entry. Mr. Chavez-Morales pleaded guilty to the offense of illegal reentry and 3 incurred a sentence of thirty-seven months’ imprisonment, followed by two years’ unsupervised release. Mr. Chavez-Morales was deported in September 2009. In June 2011, Border Patrol agents found Mr. Chavez-Morales in the United States, which resulted in Mr. Chavez-Morales’s third illegal reentry conviction, for which he incurred a sentence of twenty months’ imprisonment. Mr. Chavez-Morales was deported in November 2012. In March 2015, Border Patrol agents, once again, found Mr. Chavez-Morales in the United States, leading to Mr. Chavez-Morales’s fourth illegal reentry conviction, for which he incurred a sentence of eighteen months’ imprisonment.2 Mr. Chavez-Morales was deported on July 13, 2016. On August 19, 2016, roughly one month after being deported, Mr. Chavez-Morales was found in the United States, leading to the reentry of a removed alien conviction underlying the present appeal. B. Plea & Sentencing Proceedings Mr. Chavez-Morales and the government negotiated a fast-track plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and U.S.S.G. § 5K3.1. The fast-track plea agreement estimated a Sentencing Guidelines range of nine to fifteen months and, if accepted by the district court, would have obligated the court to impose a within-Guidelines sentence. Focusing on Mr. Chavez-Morales’s history of reentry offenses and the need to impose a sentence that would satisfy the 2 In total, Mr. Chavez-Morales’s four prior illegal reentry convictions resulted in sentences totaling ninety-nine months’ imprisonment and in Mr. Chavez-Morales serving, seven years, two months, and eleven days in prison or immigration detention awaiting deportation. 4 18 U.S.C. § 3553(a) factors, including adequately deterring Mr. Chavez-Morales, the district court rejected the fast-track plea agreement. The district court indicated, however, that if Mr. Chavez-Morales entered into a non-fast-track plea agreement, a within-Guidelines sentence would likely satisfy the § 3553(a) factors.3 But, a month after rejecting the fast-track plea agreement, the district court informed the parties that even if Mr. Chavez-Morales entered into a non-fast-track plea agreement with a Guidelines range of twenty-one to twenty-seven months’ imprisonment, the district court might vary upwards. The district court granted Mr. Chavez-Morales’s motion to formally withdraw the guilty plea he entered pursuant to the fast-track plea agreement. Thereafter, a grand jury indicted Mr. Chavez-Morales on one count of illegal reentry by a removed alien after deportation subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a), (b). Mr. Chavez-Morales then entered a straight-up guilty plea, without a written plea agreement. Based on a total offense level of ten and a criminal history category of V, a presentence investigation report (“PSR”) established a Guidelines range of twenty- one to twenty-seven months’ imprisonment. See U.S.S.G. ch. 5 pt. A (sentencing table). Relying on Mr. Chavez-Morales’s 8 U.S.C. §§ 1326(a)(1), (b)(2) offense being a Class C felony, the PSR established a Guidelines range for supervised release of one to three years. However, the PSR noted that “[p]ursuant to U.S.S.G. 3 Under U.S.S.G. § 5K3.1, a defendant who enters into a fast-track plea agreement may receive up to a four-level reduction to his offense level. Under the negotiated fast-track plea agreement, Mr. Chavez-Morales was to receive the full four-level reduction so long as he had not previously sustained a conviction for a serious violent felony and did not have a criminal history category of VI. 5 § 5D1.1(c), the court ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” ROA Vol. 2 at 29. Neither the Government nor Mr. Chavez-Morales objected to the Guidelines calculations in the PSR, and the district court adopted the factual findings and Guidelines calculations set out in the PSR. The government advocated for an upward variant sentence of thirty-eight months’ imprisonment, arguing that Mr. Chavez-Morales’s longest previous sentence of thirty-seven months did not adequately deter him from reentering the United States. Mr. Chavez-Morales argued for a within-Guidelines sentence, highlighting his good work ethic while in detention awaiting sentencing, his plan to open a taqueria in Mexico after deportation, and his economic motivation for illegally reentering the United States. When Mr. Chavez-Morales’s counsel compared the wages Mr. Chavez-Morales could earn in Mexico to the hourly wages in the United States, the district court interjected and the following colloquy occurred: [COUNSEL:] . . . He came back here every time, Your Honor, to have opportunities. I think I’ve set forth in the Sentencing Memorandum the amount of money he was making when he worked in Mexico, something like $7 a day, and he can come over here and make in the range of $15 an hour doing the same kind of work. THE COURT: How much is he making in prison? [COUNSEL]: Nothing. THE COURT: Well, you get a little bit. [COUNSEL]: A dollar a day, or whatever it is, yes. THE COURT: It’s less than what he can make in Mexico; is that right? [COUNSEL]: Yes. The Court is right, over the last 15 years he’s spent 8 years, more than half of that, locked up. So again, this seems to be a 6  part of—it should become very clear. What’s very clear to all of us should become very clear to Mr. Chavez-Morales, and we hope that it does. ROA Vol. 3 at 19–20. The district court commenced announcing its sentence by reciting the 18 U.S.C. § 3553(a) factors, placing emphasis on the need to promote respect for the law and the need to adequately deter Mr. Chavez-Morales. See 18 U.S.C. § 3553(a)(2)(A), (B). In discussing the need to promote respect for the law, the district court stated: Now, to promote respect for the law. You can’t help but look at this Presentence Report and come to the conclusion that the Defendant has no respect for the laws of the United States. I mean, I’m going to cite the fact that in the prior re-entry case, he was deported to Mexico on July the 13th, 2016, and that’s referenced in Paragraph 29 of this Presentence Report where he was given 18 months custody, and then he was arrested again in the United States on August the 19th, 2016. So that’s just a little more than one month after he’s deported, he is arrested on this matter. Now, in the second Sentencing Memorandum, [counsel for Mr. Chavez-Morales] talked about the wages and the money that he can make here in the United States compared to what he can make in Mexico, but obviously to me he didn’t really give it a shot in Mexico, because he was deported on July 13, 2016, and he’s arrested within a little more than 30 days here. So that just tends to ring hollow and just comes back to the point that he didn’t really try to make a go of it there. ROA Vol. 3 at 25–26 (emphasis added). At this point, counsel for Mr. Chavez-Morales interjected, stating that “the incentive was so strong to come back based on what he knew he could earn. I don’t think things had changed that much in Mexico [during his last prison sentence].” Id. at 26. To which, the district court responded: I mean, I get that. I understand that wages in general are lower. But then you come back to, as much time as he’s served in prison in the United States, he could be making more if he was living and working in Mexico. Other than he gets a small inmate account at the detention facility, they’re not paying in detention what he could be earning in Mexico. So, again, it 7  comes back as a complete and total lack of respect for the laws of the United States. Id. The district court then discussed specific deterrence, noting that none of Mr. Chavez- Morales’s four prior sentences deterred him from reentering the United States. In discussing the need for specific deterrence, the district court harkened back to its earlier conclusion that Mr. Chavez-Morales’s conduct evidenced a lack of respect for the laws of the United States. Mr. Chavez-Morales’s counsel interjected again, and the following interchange occurred: [COUNSEL]: Your Honor, if I could just say, on the lack of respect for the law, I would just say, I don’t think—on paper, clearly it appears total lack of respect for the law. But it’s not a situation where I think Mr. Chavez-Morales is thumbing his nose and saying, hey—I don’t think that’s the thought process that goes into this. I think the incentive is to come back to the United States, and again, I think it is more of an economic driven decision than it is sort of, you know, I don’t care what their laws are. . . . So I understand why the Court would say that. It makes sense in terms of the way you look at things on paper. I’m just saying, in terms of knowing Mr. Chavez-Morales over these past several months and working with him, I don’t think that’s really his attitude. THE COURT: Well, I’ll accept your representation that he doesn’t have a subjective intent that would indicate a lack of respect, but if you look at his conduct objectively, it clearly would suggest a lack of respect if for no other reason than that after being told you’re not going to be authorized to come here legally, you know, he’s back in the United States a little over 30 days after he’s deported on the previous re-entry conviction. And again, I could understand it if maybe that was the first go-around, but again, this is—is it the fourth or the fifth re-entry? This is the fifth re-entry conviction. So, you know, you get at least from a sentencing judge’s standpoint, you get to a point where you say, enough is enough. And I don’t know what else to do except impose a sentence that, again, satisfies the goals of sentencing, and is sufficient but not greater than necessary to satisfy those goals. Id. at 28–29. 8  The district court then announced its sentence. Although inclined to impose a 48-month sentence, the district court credited Mr. Chavez-Morales’s good behavior and work ethic while awaiting sentencing and settled on a sentence of thirty-six months’ imprisonment. On the matter of supervised release, the district court stated: After service of the sentence, the Defendant is placed on supervised release for a term of three years. The term is unsupervised with mandatory and standard conditions, and the following special condition. The Defendant shall not illegally re-enter the United States. And I hope this time around the Defendant will listen to what I’m telling him, and listen to what his lawyer told him. You will never, ever be authorized to come to the United States legally. So unless you want to essentially spend the rest of your life sitting in a U.S. prison cell, I strongly recommend that after you serve this sentence and you’re deported, you never return to the United States. Id. at 30. Mr. Chavez-Morales did not object to the term of imprisonment or to the term of supervised release. II. DISCUSSION A. Term of Imprisonment On appeal, Mr. Chavez-Morales argues that the district court failed to “meaningfully consider” his argument that his economic motivation for illegally reentering the United States mitigated the seriousness of his offense. Mr. Chavez- Morales contends that this failing on the part of the district court amounted to procedural error because the district court imposed an upward variant sentence without adequately addressing one of Mr. Chavez-Morales’s arguments for a lower sentence. The government contends that Mr. Chavez-Morales, by not objecting to the adequacy of the district court’s consideration of and response to his economic motivation argument, did not preserve the issue for appellate review and that, if we 9 review the argument, we should do so under a plain error standard. In reply, Mr. Chavez-Morales argues for an abuse of discretion standard of review but, alternatively, presents an argument under the plain error standard. We discuss the appropriate standard of review before turning to the merits of Mr. Chavez-Morales’s argument that the district court committed procedural error. 1. Standard of Review United States v. Gantt, 679 F.3d 1240 (10th Cir. 2012), provides guidance regarding the standard we apply to review Mr. Chavez-Morales’s procedural error argument. In Gantt, the defendant filed a sentencing memorandum raising several arguments counseling against the above-Guidelines sentence the district court indicated it was prepared to impose. 679 F.3d 1244, 1247. Mr. Gantt renewed his arguments at the sentencing hearing; but, the district court imposed the previously contemplated, above-Guidelines sentence. Id. at 1247. On appeal, Mr. Gantt argued the district court committed procedural error by not adequately considering several of his arguments before imposing its sentence. Id. at 1247. This court concluded Mr. Gantt had failed to preserve his procedural reasonableness challenge to his sentence because he never objected to the extent of the district court’s consideration of and explanation for rejecting his arguments for a lesser sentence. See id. at 1247-48. We instructed that to preserve a procedural reasonableness challenge based on the sentencing court’s failure to consider and explain its reasons for rejecting a defendant’s argument for a lesser sentence, the defendant “needed to alert the court that its explanation was inadequate, which ordinarily would require an objection after 10 the court had rendered sentence.” Id.; see United States v. Pacheco-Donelson, ___ F.3d ___, 2018 WL 3078024, at *1 (10th Cir. June 22, 2018) (applying plain error review to procedural challenge on appeal because “substantive objection did not preserve the procedural issue on the adequacy of the findings”). Here, Mr. Chavez-Morales presented his economic motivation argument in a sentencing memorandum filed subsequent to the district court indicating that it might impose an above-Guidelines sentence. Mr. Chavez-Morales renewed his economic motivation argument at the sentencing hearing. Before imposing its sentence, the district court commented on Mr. Chavez-Morales’s economic motivation argument three times, and Mr. Chavez-Morales did not raise an objection on the ground that the district court’s comments on the argument did not amount to meaningful consideration for procedural purposes. Thus, Mr. Chavez-Morales did not alert the district court that its explanation was inadequate so as to permit the district court to further consider and elaborate on its reasons for discounting the argument. Therefore, in accord with Gantt, Mr. Chavez-Morales did not preserve his argument and the argument is subject to plain error review.4 4 Mr. Chavez-Morales urges us to rely on United States v. Lopez-Avila, 665 F.3d 1216 (10th Cir. 2011), to reach the opposite conclusion. In Lopez-Avila, we concluded that a defendant’s initial argument on a matter preserved the argument for appellate review where an objection would have been a “superfluous and futile gesture” given the district court’s response to the argument. Id. at 1218. While Mr. Chavez-Morales objecting to the substance of the district court’s reasons for rejecting his economic motivation argument may have been futile, an objection regarding the extent of the district court’s consideration of and response to his economic motivation argument would not have been “superfluous and futile” because it would 11  Under plain error review, the defendant must establish that “(1) the district court committed error; (2) the error was plain—that is, it was obvious under current well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Gantt, 679 F.3d at 1246 (internal quotation marks omitted). “Because all four requirements must be met, the failure of any one will foreclose relief.” Id. Finally, although Mr. Chavez-Morales did not present an argument for plain error review in his opening brief, his advancement of a plain error argument in his reply brief is sufficient to permit us to consider the argument under plain error review. See United States v. Courtney, 816 F.3d 681, 684 (10th Cir. 2016). 2. Analysis of Argument “[W]here a defendant has raised a nonfrivolous argument that the § 3553(a) factors warrant a [sentence below that imposed by the district court], we must be able to discern from the record that ‘the sentencing judge . . . considered whether the [sentence imposed] actually conforms, in the circumstances, to the statutory factors.’” United States v. Sanchez-Juarez, 446 F.3d 1109, 1117 (10th Cir. 2006) (quoting United States v. Cunningham, 429 F.3d 673, 676 (7th Cir. 2005)); see United States v. Estrada-Mederos, 784 F.3d 1086, 1090 (7th Cir. 2015) (“The district court is required to adequately explain the chosen sentence . . . . A judge who fails to mention a ground of recognized legal merit . . . is likely to have committed an error or oversight.” (quotation marks and citations have permitted the district court an opportunity to assess whether further discussion of the argument was necessary to satisfy procedural requirements. 12 omitted)). “Potential merit does not mean the sentencing court must accept the argument, but it ordinarily will deserve explicit comment.” Estrada-Mederos, 784 F.3d at 1091. And, courts have recognized that a defendant’s economic motivations for committing an offense may be a meritorious mitigating argument under the § 3553(a) factors. See United States v. Arias-Lopez, 533 F. App’x 824, 827 & n.2 (10th Cir. 2013) (identifying economic motivation for illegal reentry as a “potentially mitigating fact[]”); cf. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (“[S]entencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. The defendant’s motive for committing the offense is one important factor.” (citations omitted)). Accordingly, where Mr. Chavez-Morales argued that economic incentives in the United States motivated him to commit his illegal reentry offense and that these incentives lessened the seriousness of his offense, the district court needed to address the argument before imposing an above-Guidelines sentence. Contrary to Mr. Chavez-Morales’s argument, however, the transcript of the sentencing hearing shows that the district court responded to the argument on three separate occasions. Although the district court acknowledged that wages in the United States were higher than wages in Mexico, it discounted the logic and veracity of Mr. Chavez-Morales’s argument on the ground that Mr. Chavez-Morales had earned less money during the seven-plus years he had spent in a United States prison then he would have had he worked in Mexico. The district court also rejected the mitigating value of Mr. Chavez-Morales’s economic argument based on the limited 13 amount of time between his most recent deportation and his present offense, noting that Mr. Chavez-Morales “didn’t really try to make a go of it [in Mexico].”5 ROA Vol. 3 at 26. Accordingly, the district court did not commit procedural error because it satisfied its procedural duty to consider Mr. Chavez-Morales’s economic motivation argument and provided reasons for rejecting the argument before imposing an above-Guidelines sentence.6 B. Imposition of Supervised Release Mr. Chavez-Morales argues that the district court committed procedural error by imposing a term of supervised release without considering U.S.S.G. § 5D1.1(c). Mr. Chavez-Morales, however, concedes that because he did not object to the imposition of a term of supervised release, his argument is subject to plain error review. As noted earlier, under plain error review, the defendant must establish that “(1) 5 Mr. Chavez-Morales also suggests that the district court erred by relying on a need to promote respect for the law, see 18 U.S.C. § 3553(a)(2)(A), when selecting Mr. Chavez-Morales’s sentence after it conceded that a “subjective” disrespect for the law did not motivate Mr. Chavez-Morales to commit his most recent offense, see ROA Vol. 3 at 29. We read the district court’s comments more narrowly than does Mr. Chavez-Morales. It may be the case that a disrespect for the law was not the prevailing reason behind Mr. Chavez-Morales’s decision to illegally reenter the United States. But, as the district court noted, it is not hard to conclude that an individual has objectively disrespected the laws of the United States by incurring five independent convictions for the same general offense. Separately, nothing in the language of § 3553(a)(2)(A) requires the district court to find a subjective disrespect for the law before relying on the factor when determining what sentence is sufficient, but not greater than necessary, to satisfy the § 3553(a) factors. Instead, a district court may rely on § 3553(a)(2)(A) to select a sentence that promotes a general, societal respect for the law. 6 Because Mr. Chavez-Morales has not demonstrated that the district court committed procedural error, his challenge to his sentence would also fail under the more favorable abuse of discretion standard of review for which he advocated. 14 the district court committed error; (2) the error was plain—that is, it was obvious under current well-settled law; (3) the error affected the Defendant’s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Gantt, 679 F.3d at 1246 (internal quotation marks omitted).7 We commence our plain error analysis by discussing the procedural steps in which the district court needed to engage before imposing supervised release on Mr. Chavez-Morales given that he was likely to be deported upon completing his term of imprisonment. Where Mr. Chavez-Morales’s present illegal reentry conviction occurred after a conviction for an aggravated felony, his conviction carried a maximum sentence of twenty years’ imprisonment and qualified as a Class C felony. See 8 U.S.C. § 1326(b)(2), 18 U.S.C. § 3559(a)(3). Section 3583 of Title 18 authorizes a term of supervised release of “not more than three years” for a Class C felony. 18 U.S.C. § 3583(b)(2) (emphasis added). Accordingly, the district court was not statutorily required to impose a term of supervised release on Mr. Chavez-Morales. Section 5D1.1 of the United States Sentencing Guidelines advises that “[t]he court ordinarily should not impose a term of supervised release in a case in which supervised 7 The Supreme Court’s recent decision in Rosales-Mireles v. United States alters the threshold for satisfying the fourth prong of the plain error analysis relative to an “ordinary case” involving “a plain Guidelines error that affects a defendant’s substantial rights.” ___ S. Ct. ___, 2018 WL 3013806, at *12 (June 18, 2018). But, Rosales-Mireles arose within the context of an error in calculating the defendant’s Guidelines range. See id. at *4. Because Mr. Chavez-Morales fails to satisfy the third prong of the plain error analysis, we need not decide whether the district court’s failure to tie its comments about deterrence to its imposition of a term of supervised release qualifies as a Guidelines error or whether Rosales-Mireles applies to Guidelines errors that do not involve the calculation of a Guidelines range. 15 release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” U.S.S.G. § 5D1.1(c) (emphasis added). Commentary to U.S.S.G. § 5D1.1 provides the rationale for ordinarily not imposing supervised release on a defendant who is a deportable alien: Unless such a defendant legally returns to the United States, supervised release is unnecessary. If such a defendant illegally returns to the United States, the need to afford adequate deterrence and protect the public ordinarily is adequately served by a new prosecution. The court should, however, consider imposing a term of supervised release on such a defendant if the court determines it would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case. U.S.S.G. § 5D1.1 n.5 (emphasis added). In imposing a term of supervised release, the district court did not acknowledge or consider the guidance in U.S.S.G. § 5D1.1(c) and the accompanying commentary. Nor did the district court specifically link its imposition of supervised release to a need for deterrence or protection. And while the district court did focus on the need for specific deterrence when selecting Mr. Chavez-Morales’s term of imprisonment, Tenth Circuit precedent prevents us from imparting the district court’s reasons under the § 3553(a) factors for selecting a term of imprisonment onto its decision to impose a term of supervised release. See United States v. Zanghi, 209 F.3d 1201, 1205 (10th Cir. 2000) (“It is not appropriate simply to assume that the sentencing court’s reason for imposing a prison term likewise extends to its decisions regarding supervised release . . . nor is it consistent with our appellate function to do so.”). Instead, the district court should have recognized the advice in U.S.S.G. § 5D1.1(c) regarding ordinarily not imposing 16 supervised release and then explicitly tied its imposition of supervised release to the added deterrent effect of doing so in Mr. Chavez-Morales’s case, the need to protect the public, and any of the other relevant 18 U.S.C. § 3583(c) factors governing supervised release. By not engaging in these procedural steps, the district court committed error. See United States v. Solano-Rosales, 781 F.3d 345, 353–54 (6th Cir. 2015) (concluding that district court commits error by imposing term of supervised release on deportable alien without acknowledging U.S.S.G. § 5D1.1(c) and without providing “reasoning for taking a different course of action” than recommended by § 5D1.1(c)); see also United States v. Azcona-Polanco, 865 F.3d 148, 153 (3d Cir. 2017) (suggesting that district court must acknowledge U.S.S.G. § 5D1.1(c) and “must ‘explain and justify’ the imposition of supervised release on a deportable immigrant” (quoting United States v. Murray, 692 F.3d 273, 281 (3d Cir. 2012))). Although the district court committed error, we conclude that Mr. Chavez-Morales failed to sustain his burden on the third prong of the plain error analysis.8 Under the third prong, Mr. Chavez-Morales must establish that there is “a ‘reasonable probability’ that the defects in his sentencing altered the result of the proceedings.” United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir. 2005) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 81–82 (2004)). Mr. Chavez-Morales argues that because U.S.S.G. 8 Because Mr. Chavez-Morales fails to sustain his burden on the third prong of the plain error analysis, we need not address the second prong—whether the district court’s error was plain. See United States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (finding it unnecessary to analyze third prong of plain error analysis where appellant did not satisfy fourth prong). 17 § 5D1.1(c) indicates that supervised release is “ordinarily” not appropriate, it follows that there is a reasonable probability that the district court would not have imposed a term of supervised release had it acknowledged and considered § 5D1.1(c). Mr. Chavez- Morales’s argument, however, does not account for the specific facts of his case. From the time of considering the fast-track plea agreement through the sentencing hearing, the district court repeatedly expressed concerns about Mr. Chavez-Morales’s history of illegal reentry offenses, as well as the need to deter Mr. Chavez-Morales so that he did not illegally reenter the United States a sixth time.9 And while the district court did not adequately tie its imposition of a term of supervised release to deterrence for purposes of our error analysis, threads of a deterrence rationale appear in the 9 Although United States v. Zanghi prohibits us from ascribing the district court’s reasons for selecting a term of imprisonment to its decision to impose a term of supervised release when determining if the district court adequately explained its decision to impose supervised release, Zanghi involved a preserved challenge to a term of supervised release that we reviewed under an abuse of discretion standard. 209 F.3d 1201, 1203 (10th Cir. 2000). Accordingly, nothing in Zanghi prohibits us from considering the proceedings as a whole when determining whether Mr. Chavez- Morales established a reasonable probability of a different result absent the error. And, other circuits that follow the reasoning of Zanghi have considered the proceedings as a whole, including the district court’s explanation for its sentence, when evaluating the third prong of the plain error analysis relative to a challenge to the imposition of supervised release in light of U.S.S.G. § 5D1.1(c). See United States v. Azcona-Polanco, 865 F.3d 148, 153–54 (3d Cir. 2017) (noting that “[t]he requirement that a district court provide an adequate explanation applies to supervised release” but considering proceedings as a whole, including defendant’s history and characteristics, when evaluating third prong of plain error analysis); United States v. Solano-Rosales, 781 F.3d 345, 352, 354–55 (6th Cir. 2015) (acknowledging requirement that district court provide reasons specific to imposition of supervised release but considering all of district court’s comments when evaluating third prong of plain error analysis). 18 statement made by the district court contemporaneous to its decision to impose supervised release: The term is unsupervised with mandatory and standard conditions, and the following special condition. The Defendant shall not illegally re-enter the United States. And I hope this time around the Defendant will listen to what I’m telling him, and listen to what his lawyer told him. You will never, ever be authorized to come to the United States legally. So unless you want to essentially spend the rest of your life sitting in a U.S. prison cell, I strongly recommend that after you serve this sentence and you’re deported, you never return to the United States. ROA Vol. 3 at 30. Finally, at a hearing prior to sentencing, Mr. Chavez-Morales’s own counsel suggested that the district court could impose a term of supervised release as an added means of deterrence because the term of supervised release would permit the district court to impose a revocation sentence should Mr. Chavez-Morales illegally return to the United States during the term of supervised release. Considering the proceedings as a whole, we conclude that (1) the need for deterrence was particularly high in Mr. Chavez-Morales’s case given his numerous illegal reentry convictions; (2) both the district court and Mr. Chavez-Morales’s own counsel recognized the need for specific deterrence; and (3) the imposition of a term of supervised release was likely to have a strong deterrent effect on Mr. Chavez-Morales given the district court’s imposition of an above-Guidelines sentence and its suggestion to Mr. Chavez-Morales that, if he returned, the same district court judge would impose a lengthy revocation sentence. On these specific facts, Mr. Chavez-Morales has not demonstrated a reasonable probability that if we were to remand for resentencing, the 19 district court would decline to reimpose the same term of supervised release.10 See Azcona-Polanco, 865 F.3d at 154–55 (no effect on substantial rights where district court cited defendant’s serious criminal history, failure to comply with order of removal, prior illegal reentry conviction, and purchase of false documents in effort to remain in United States); see also United States v. Alvarado, 720 F.3d 153, 160 (2d Cir. 2013) (relying on defendant’s criminal history to conclude that, if district court did not adequately explain reasons for imposing supervised release on deportable alien defendant, any error did not affect substantial rights); United States v. Cancino- Trinidad, 710 F.3d 601, 606–07 (5th Cir. 2013) (concluding that, in light of defendant’s criminal record, defendant showed only a “possibility,” not a “probability,” of different result at resentencing such that the error did not affect substantial rights).11 10 Mr. Chavez-Morales points to United States v. Dieudonne, 695 F. App’x 657 (3d Cir. 2017), in support of his argument that there is a reasonable probability that the district court would not have imposed a term of supervised release had it acknowledged and considered U.S.S.G. § 5D1.1(c). Apart from the fact that Dieudonne is an unpublished, out of circuit decision, the government in Dieudonne conceded the third prong of the plain error analysis, Dieudonne, 695 F. App’x at 661. Furthermore, the defendant in Dieudonne, while subject to deportation, was convicted of wire fraud offenses rather than an immigration offense and nothing in the Third Circuit’s opinion suggests that the defendant was in the United States illegally, had ever illegally reentered the country after deportation, or had even sustained a prior felony conviction. See id. at 658. Accordingly, Dieudonne has little persuasive value when considered in light of Mr. Chavez-Morales’s history and characteristics. 11 Where Mr. Chavez-Morales fails to satisfy the third prong of the plain error test, we need not evaluate his arguments under the fourth prong of that analysis. See United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). 20  III. CONCLUSION We AFFIRM the district court’s judgment with respect to both Mr. Chavez- Morales’s term of imprisonment and term of supervised release. 21 

995 So.2d 509 (2008) AGNEW v. STATE. No. 4D08-3015. District Court of Appeal of Florida, Fourth District. December 8, 2008. Decision without published opinion. Affirmed.

165 Ariz. 236 (1990) 798 P.2d 374 CITY OF TUCSON, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA; Honorable John G. Hawkins, a Judge thereof, Respondents, and COTTONWOOD DEVELOPMENT CO., INC.; George P. Mehl Construction Co., Inc.; Bear Canyon Shopping Center: dba Cottonwood Properties Inc.; Cottonwood Development, Inc.; Bear Canyon Shopping Center, and/or George P. Mehl Construction Co.; Pima County, a governmental organization in the State of Arizona; Osborn, Petterson, Walbert & Assoc. Engineering and Surveying, an Arizona corporation; R.E. Miller Paving and Construction, Inc.; The Superior Court of Arizona, In and For the County of Pima; and John G. Hawkins, a Judge thereof, Real Parties in Interest. No. CV-89-0236-PR. Supreme Court of Arizona, En Banc. September 18, 1990. *239 Kimble, Gothreau & Nelson by Michael P. Morrison, Michael J. Gothreau, Tucson, for petitioner. Murphy, Goering, Roberts & Holt, P.C. by Michael F. McNamara, David L. Berkman, Tucson, for respondents. OPINION FELDMAN, Vice Chief Justice. This is an action in which one joint tortfeasor seeks contribution from another for amounts paid to the injured party. See A.R.S. § 12-2501 et seq. We granted review to determine whether a non-settling tortfeasor is bound by the amount of damages that the settling tortfeasors paid in "good faith" to obtain the injured parties' complete release of all defendants. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. FACTS This case arises from an automobile accident and resulting actions for death and personal injury brought by various individuals (tort claimants) against the City of Tucson (City) and a number of other defendants. The tort claimants alleged that the City and the other defendants were negligent in designing, building, or maintaining a public street in Tucson. In 1987, the tort claimants settled with all defendants except the City. In a January 19, 1987 minute order, the trial judge listed the terms of settlement, including the amount to be paid to each claimant and the portion thereof to be paid by each settling defendant. Those defendants petitioned the trial court for a formal determination that the settlement was made in "good faith." See Rule 16.1, Ariz.R.Civ.P., 16 A.R.S. (hereafter Rule 16.1). The City opposed that motion, but after considering the affidavits submitted, the trial court found the settlement was made in good faith. The tort claimants dismissed their actions with prejudice, giving a complete release of all claims, thus also releasing the City from any further liability. The settling defendants then brought an action against the City seeking contribution for those settlement amounts paid the tort claimants "in excess of [the settling defendants'] actual pro rata shares of potential liability." See City of Tucson v. Superior Court, 161 Ariz. 441, 442, 778 P.2d 1337, 1339 (Ct.App. 1989); see also A.R.S. § 12-2501(B). The settling defendants moved for summary judgment, arguing that the trial court's finding that the settlement was made in good faith collaterally estopped the City from relitigating in the contribution action issues pertaining to the amount of damages sustained by each of the tort claimants. They further contended that the damage issues, together with the pro rata share "owed" by each tortfeasor, had been concluded by the good faith settlement. In the contribution action, therefore, the only question remaining to be litigated was the proportionate share of fault attributable to the City. When that percentage was determined and applied to the settlement amount, the product would be the sum the City owed for its contribution as a joint tortfeasor. The trial judge granted the motion over the objections of the City and entered judgment for contribution against the City. The City then filed a special action[1] in the court of appeals, claiming the trial court exceeded its jurisdiction by precluding it from litigating the amount of damages sustained by the claimants. The court of appeals accepted jurisdiction of the special action and granted relief, holding that the trial judge had exceeded his authority by granting the settling defendants' motion for summary judgment. City of Tucson, 161 Ariz. at 442-43, 778 P.2d at 1338-39. The court held that the City was not precluded from contesting the amount of damages, even though the settling defendants had settled in good faith. The court stated that "[t]he issue of damages, like the issue *240 of liability, raises questions of fact which only the trier of fact may resolve" in the contribution action. Id. at 446, 778 P.2d at 1342. The settling defendants then petitioned this court for review. Because the interpretation of the statutes is a matter of statewide importance and the issue one of first impression, we granted review. See Rule 23(f), Ariz.R.Civ.App.P., 17B A.R.S. The sole issue before us is whether the trial court's Rule 16.1 finding of "good faith" precludes the City from disputing the amount of damages that were due to the tort claimants. CONTRIBUTION Prior to 1984, Arizona law did not recognize an action for contribution among joint tortfeasors. Holmes v. Hoemako Hospital, 117 Ariz. 403, 405, 573 P.2d 477, 479 (1977); see also Note, Denying Contribution Between Tortfeasors in Arizona; a Call for Change, 1977 ARIZ.ST.L.J. 673. A negligent tortfeasor was liable to pay the entire damages and had no right to contribution from any joint tortfeasor. See Note, supra, 1977 ARIZ.ST.L.J. at 674. This regime changed in 1984 when the legislature both recognized the action for contribution between joint tortfeasors and enacted the doctrine of comparative negligence. See A.R.S. §§ 12-2501, 12-2505, and 12-2506.[2] The legislature created an action for contribution with the following language: A.... [I]f two or more persons become jointly or severally liable in tort for the same injury ... there is a right of contribution among them even though judgment has not been recovered against all of them. B. The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. * * * * * * D. A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor ... in respect to any amount paid in a settlement which is in excess of what was reasonable. A.R.S. § 12-2501. It is important to note that nothing in the statute purports to bind a non-settling defendant from litigating the three issues that determine its liability for contribution to a settlement, namely: (1) its liability for the tort (§ 12-2501(A)); (2) the pro rata shares of liability of both the party seeking contribution and the party alleged to be liable for contribution (§ 12-2501(B)); and (3) in the case of settlements, whether the amount the settling party paid was reasonable (§ 12-2501(D)). The policy behind the Uniform Contribution Among Tortfeasors Act, upon which Arizona's contribution statute is based, is to encourage settlements. See Commissioner's Comment to section 1(d) of the Uniform Contribution Among Tortfeasor's Act, 12 U.L.A. § 1 (1959), Master Edition (1975). Once a tortfeasor discharges the entire obligation, he is entitled to contribution from the non-settling tortfeasors. Because the statute requires the settlement to be reasonable, it follows that the issues of damages as well as total liability may be litigated in the contribution action. Id.; see also S. Butler and G. Gage, Comparative Negligence and Uniform Contribution: New Arizona Law, 20 ARIZ. BAR J. 16 (1984) (defendants in a contribution action retain the right to challenge reasonableness of the amount of settlement as well as right to dispute liability to the plaintiff). There being no express statement in the contribution statute, if the non-settling defendant *241 is to be bound by some form of issue preclusion, such a result must flow from something other than that statute. The preclusion claimed here arises from the trial court's finding that the settlement was made in good faith. This argument is based on the language of A.R.S. § 12-2504, which provides as follows: If a release or covenant not to use ... is given in good faith to one of two or more [joint tortfeasors] both of the following apply: 1. It does not discharge any of the other tortfeasors from liability ... unless its terms so provide, but it reduces the claim against the others.... 2. It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. (Emphasis added.) The statute does not define the term "good faith" nor provide any mechanism by which its existence could be established. To accomplish the latter, the State Bar of Arizona proposed and this court adopted a rule that permits the trial court to make a "formal determination whether the settlement is made in good faith." Rule 16.1(a). Various subsections of the rule provide for an adjudicative procedure including the use of affidavits, filing of objections, and a hearing. In our view, neither A.R.S. § 12-2504 nor the rule promulgated to implement that statute is relevant to the issues in this case. By the express words of A.R.S. § 12-2504, the finding that a settlement was made in "good faith" is only relevant and necessary to discharge a settling tortfeasor from liability for claims by other joint tortfeasors seeking contribution from him. In other words, a settling joint tortfeasor may raise the finding of "good faith" as a defense to a contribution action brought against him by other tortfeasors. It is not an element that a settling tortfeasor must show as a sine qua non to maintain his contribution action against non-settling tortfeasors.[3] As the court of appeals pointed out, however, when a settling defendant brings a contribution action against a non-settling defendant, the issues are determined by A.R.S. § 12-2501, which established the right of action for contribution. The liability imposed by that statute "exists only in favor of a [defendant] who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share." § 12-2501(B) (emphasis added). Faith, good or bad, is not the test. The liability of the defendant in a contribution action is determined by the amount of the "common liability" — an amount representing the total damages caused by the negligence of all the defendants — and the degree of fault (the "pro rata share") attributable to each of the tortfeasors. This amount can be established either by verdict or through settlement. Where the amount of the common liability is "fixed" by a settlement rather than a verdict, subsection (D) limits the settling defendant's contribution recovery from a non-settlor by prohibiting recovery of "any amount paid in a settlement which is in excess of what was reasonable." § 12-2501(D). The term "reasonable" may have a distinct relationship to the term "good faith" and the question of good faith may have evidentiary value in determining reasonableness.[4]See Tech-Bilt, Inc. v. *242 Woodward-Clyde & Assocs., 38 Cal.3d 488, 213 Cal. Rptr. 256, 262-64, 698 P.2d 159, 166-67 (1985). We believe, however, that "reasonable" is used in § 12-2501(D) as a term of limitation. The settling defendant may recover the amount paid in excess of "his pro rata share of the common liability" — common liability meaning here the amount of the settlement — or the amount that was "reasonable" to pay in settlement, whichever is less. Thus, even though a defendant has settled in "bad faith," he may be entitled to contribution, but his recovery is limited to what would have been "reasonable" in settling. Of course, in determining what is reasonable the parties may offer evidence of the total damages sustained by the tort claimant. See Ogle v. Craig, 761 P.2d 722 (Alaska 1988). Other factors are also to be considered. See Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165, 168-69 (Fla.App. 1983) (objective factors to be considered include: extent of plaintiff's injuries; his past, present, and future medical expenses; and his age and ability to work. Subjective factors to be considered include: certainty of the tortfeasor being held liable; risks of going to trial; and chance that jury verdict may exceed the settlement offer). We can conceive of no reason why the right of contribution in a case that has been settled should be different from, or more or less than, the right of contribution in a case that has been tried. The only distinction between the two situations is that in the latter, the total liability and pro rata share of the party seeking contribution have been established by judgment. In a case that has been settled prior to trial, the reasonableness of the settlement amount paid and the liability of the non-settling defendant must be established in an adversary proceeding, as must the "pro rata share of the entire liability" of the non-settling defendant. This conclusion disposes of the settling defendant's claims. We agree with the court of appeals' disposition of the collateral estoppel issues. City of Tucson, 161 Ariz. at 444-45, 778 P.2d at 1340-41. We observe further that the settling defendant's preclusion claims must be rejected because the trial court's determination of good faith in the Rule 16.1 hearing was not necessarily a determination of the issues pertaining to the reasonableness of the settlement and the relative degrees of fault required to establish the contribution claim under § 12-2501. For the doctrine of collateral estoppel to be applied, the issue or fact to be precluded must have been the same issue or fact actually litigated. See Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986); Restatement (Second) of Judgments § 27 (1982). CONCLUSION The trial court erred in granting the settling defendants' motion for partial summary judgment. Under the statute, both the issue of reasonableness of the settlement and the issue of liability of the City were for the trier of fact.[5] The issues were not precluded and the grant of the motion exceeded the court's legal authority. The court of appeals' opinion is approved. The trial court's judgment is vacated. The case is remanded to the superior court for further proceedings in conformity with this opinion. GORDON, C.J., and CAMERON, MOELLER and CORCORAN, JJ., concur. NOTES [1] In Arizona, relief formerly obtained by writs of prohibition, mandamus or certiorari is now obtained by "special action." Rule 1, Arizona Rules of Procedure for Special Actions, 17B A.R.S. [2] In 1987, the legislature repealed § 12-2506 and enacted a new version of the statute that abolished the doctrine of joint and several liability of tortfeasors and provided, instead, that each joint tortfeasor shall be liable only for his or her percentage of fault. Laws 1987, Ch. 1, § 2, eff. Jan. 1, 1988. Of course, the abolition of joint and several liability moots the question of contribution. The case before us, however, is one that arose before the applicability of the statute abolishing joint and several liability. Nothing in this opinion, therefore, reaches any question that might arise regarding the interpretation or validity of that statute. [3] We conclude, therefore, that we need not determine in this case which of two lines of authority is appropriate for determining whether a settlement was made in good faith. See City of Tucson, 161 Ariz. at 444, 778 P.2d at 1340; Dompeling v. Superior Court, 117 Cal. App.3d 798, 173 Cal. Rptr. 38 (1981) (recognizes presumption that settlements were fair and in good faith absent evidence of collusion or other improper or tortious conduct); Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., 38 Cal.3d 488, 213 Cal. Rptr. 256, 262-64, 698 P.2d 159, 166-67 (1985) (adopting a test that requires ascertainment of a number of factors to determine whether a settlement fell within the "reasonable range" appropriate for the case and therefore was made "in good faith"). [4] The facts pertaining to the motives or methods of settlement may be relevant. This does not mean the court's finding on the issue is admissible. [5] The court of appeals also agreed with the City that it was deprived of the right to a jury trial on these issues. Although either party to litigation in the superior court is entitled to demand a jury trial as a matter of right, whether the case falls in equity or in law, see Shaffer v. Insurance Co. of North America, 113 Ariz. 21, 22, 545 P.2d 945, 946 (1976), in an equity case the verdict is merely advisory. See Mozes v. Daru, 4 Ariz. App. 385, 420 P.2d 957 (Ct.App. 1966). We take no position at this time on whether a jury verdict in this case would be merely advisory.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-73,866-01 EX PARTE BRANDON EDWARDS, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. B-28,045-A IN THE 161st DISTRICT COURT FROM ECTOR COUNTY Per curiam. O R D E R Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of manufacturing or possessing with intent to manufacture more than 400 grams of methamphetamine and sentenced to forty-five years' imprisonment. The Eighth Court of Appeals affirmed his conviction. Edwards v. State, No. 08-00-00551-CR (Tex. App.-El Paso, delivered August 15, 2002, pet. ref'd). Applicant contends that his trial counsel rendered ineffective assistance because he failed to investigate and interview witness Mr. Tim Perry, who would have provided exculpatory testimony at trial. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. It appears from the record that Applicant is currently represented by habeas counsel. However, if this is no longer the case and the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04. The trial court shall make findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief. This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: May 26, 2010 Do not publish

91 F.Supp.2d 1 (1999) Eloise Pepion COBELL, et al., Plaintiffs, v. Bruce BABBITT, Secretary of the Interior, Lawrence Summers, Secretary of the Treasury, and Kevin Gover, Assistant Secretary of the Interior, Defendants. No. 96-1285. United States District Court, District of Columbia. December 21, 1999. *2 *3 *4 Dennis M. Gingold, Washington, DC, Thaddeus Holt, Point Clear, AL, Elliott H. Levitas, Atlanta, GA, Keith Harper, Lorna K. Babby, Washington, DC, for Plaintiffs. Lois J. Schiffer, Assistant Attorney General, Tom C. Clark, II, Senior Counsel, Phillip A. Brooks, Senior Counsel, Charles Findlay, Assistant Chief, U.S. Department of Justice, Washington, DC, for Defendants. MEMORANDUM OPINION: FINDINGS OF FACT AND CONCLUSIONS OF LAW LAMBERTH, District Judge. This matter comes before the court after a six-week bench trial and the submission of an administrative record, proposed findings of fact and conclusions of law by both sides, and responses thereto. Upon consideration of these materials and the record in this case, the court makes the following findings of fact and conclusions of law. Table of Contents I. Introduction ................................................................ 6 II. Findings of Fact ............................................................ 7 A. History Surrounding IIM Trust Establishment .............................. 7 B. The IIM Trust ............................................................ 9 C. The Indian Trust Fund Management Reform Act of 1994 ...................... 12 *5 D. The Strategic Plan ....................................................... 13 E. The High Level Implementation Plan (HLIP) ................................ 14 1. Data Cleanup .......................................................... 14 a. OST Trust Fund Records Data Cleanup ................................ 14 b. BIA Trust Asset Records Data Cleanup ............................... 15 2. BIA and OHA Probate Backlog ........................................... 17 3. BIA Appraisal Program ................................................. 18 4. Computer Systems ...................................................... 18 a. OST Trust Fund Accounting System (TFAS) ............................ 18 b. BIA Trust Asset and Accounting Management System (TAAMS) ........... 19 5. OST/BIA Records Management ............................................ 20 F. Facts Pertaining to Plaintiffs' Interference Claims ...................... 21 G. The Department of the Treasury ........................................... 21 1. Time Lapse in Availability of Deposited Funds ......................... 22 2. Loss of Interest on Issued Checks ..................................... 22 3. Illegal Document Retrieval and Retention Policies ..................... 23 4. The Sweeping of Money into the Unclaimed Moneys and Miscellaneous Receipts Accounts at Treasury ....................................... 23 III. Jurisdiction and Scope of Lawsuit ........................................... 24 A. Subject Matter Jurisdiction .............................................. 24 B. Waiver of Sovereign Immunity ............................................. 24 C. Plaintiffs' Common-Law Claims for Breach of Trust ........................ 28 D. Scope of Lawsuit ......................................................... 31 E. APA "Jurisdiction" ....................................................... 35 F. Administrative Record .................................................... 37 IV. Declaratory Judgment—Basic Principles ................................. 38 V. Declaratory Judgment—The Secretary of the Interior .................... 40 A. Overview ................................................................. 40 B. Declaration of Trust Duties Arising from the Indian Trust Fund Management Reform Act .............................................................. 40 1. The Secretary of the Interior's Duty to Perform Accounting on All IIM Trust Money ...................................................... 40 2. The Secretary of the Interior's Duty to Establish Written Plans for Gathering of Missing Information; Document Retention; Business and Computer Systems Architecture; and Staffing of Trust Management Functions ................................................. 41 (i.) Introduction ..................................................... 41 (ii.) document retrieval and retention ................................ 42 (iii.) systems architecture and staffing .............................. 43 C. The Deadline for the Discharge of the Secretary of the Interior's Four Declared Planning Duties Has Passed .................................... 45 D. The Secretary of the Interior is Currently in Breach of Four Statutory Trust Duties that Warrant Prospective Relief ........................... 48 1. The Secretary of the Interior Has No Written Plan to Gather Missing Data ................................................................ 48 2. The Secretary of the Interior Has No Written Plan Addressing the Retention of IIM-Trust Documents Necessary to Render an Accounting .. 49 3. The Secretary of the Interior Has No Written Architecture Plan ........ 49 4. The Secretary of the Interior Has No Written Plan Addressing the Staffing of Interior's Trust Management Functions ................... 49 VI. Declaratory Judgment—The Secretary of the Treasury .................... 49 A. The Secretary of the Treasury's Duty to Retain IIM-Trust Documents that are Necessary for the Rendition of an Accounting .................. 49 B. The Secretary of the Treasury Has Breached His Fiduciary Duty to Retain IIM-Trust Documents and Has No Remedial Plan to Address This Breach of Duty .................................................... 50 VII. Plaintiffs' Obstruction Claims .............................................. 51 VIII. Remedy ...................................................................... 52 IX. Certification of Order for Interlocutory Appeal ............................. 57 X. Conclusion .................................................................. 57 *6 I. Introduction[1] It would be difficult to find a more historically mismanaged federal program than the Individual Indian Money (IIM) trust. The United States, the trustee of the IIM trust, cannot say how much money is or should be in the trust. As the trustee admitted on the eve of trial, it cannot render an accurate accounting to the beneficiaries, contrary to a specific statutory mandate and the century-old obligation to do so. More specifically, as Secretary Babbitt testified, an accounting cannot be rendered for most of the 300,000-plus beneficiaries, who are now plaintiffs in this lawsuit. Generations of IIM trust beneficiaries have been born and raised with the assurance that their trustee, the United States, was acting properly with their money. Just as many generations have been denied any such proof, however. "If courts were permitted to indulge their sympathies, a case better calculated to excite them could scarcely be imagined." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15, 8 L.Ed. 25 (1831) (Marshall, C.J.). Notwithstanding all of this, defendants, the trustee-delegates of the United States, continue to write checks on an account that they cannot balance or reconcile. The court knows of no other program in American government in which federal officials are allowed to write checks—some of which are known to be written in erroneous amounts—from unreconciled accounts—some of which are known to have incorrect balances. Such behavior certainly would not be tolerated from private sector trustees. It is fiscal and governmental irresponsibility in its purest form. The United States' mismanagement of the IIM trust is far more inexcusable than garden-variety trust mismanagement of a typical donative trust. For the beneficiaries of this trust did not voluntarily choose to have their lands taken from them; they did not willingly relinquish pervasive control of their money to the United States. The United States imposed this trust on the Indian people. As the government concedes, the purpose of the IIM trust was to deprive plaintiffs' ancestors of their native lands and rid the nation of their tribal identity. The United States reaped the "benefit" of this imposed program long ago—sixty-five percent of what were previously tribal land holdings quickly opened up to non-Indian settlement. But the United States has refused to act in accordance with the fiduciary obligations attendant to the imposition of the trust, which are not imposed by statute. The defendants cannot provide an accounting of plaintiffs' money, which the United States has forced into the IIM trust. This problem, which has been handed down from administration to administration of apologetic United States trustee-delegates to generation upon generation of helpless beneficiaries, continues today and is the basis for this lawsuit. It imposes far more than pecuniary costs, although those are clear and cannot be overstated. Plaintiffs' class includes some of the poorest people in this nation. Human welfare and livelihood are at stake. It is entirely possible that tens of thousands of IIM trust beneficiaries should be receiving different amounts of money— their own money—than they do today. Perhaps not. But no one can say, which is the crux of the problem. Plaintiffs bring this lawsuit to force the government to abide by its duty to render *7 an accurate accounting of the money currently held within the IIM trust. But plaintiffs must remember that this is a lawsuit. They cannot treat the court as a grievance committee for the United States' mishandling of the trust. Whether plaintiffs like it or not, only Congress can play that type of role. For everyone involved must consider not only plaintiffs' rights, but also the constitutional role of courts in American government. This court can consider only plaintiffs' soundly grounded causes of action, and it cannot provide relief beyond them. The component of the case currently before the court concerns the issue of whether defendants are in breach of any trust duties such that plaintiffs should be afforded some prospective relief to prevent further injury of their legal rights. Plaintiffs have stated and proved certain valid legal claims that entitle them to relief. For the reasons stated below, the court finds that the United States government, by virtue of the actions of defendants and their predecessors, is currently in breach of certain trust duties owed to plaintiffs. The government recently has taken substantial steps toward bringing itself into compliance in several respects. Nonetheless, given the long and sorry history of the United States' trusteeship of the IIM trust, the defendants' recalcitrance toward remedying their mismanagement despite decades of congressional directives, and the consequences of allowing these enumerated breaches of trust to continue, the court will retain continuing jurisdiction over this matter. It would be an abdication of duty for this court to do anything less. II. Findings of Fact A. History Surrounding IIM Trust Establishment As Chief Justice Marshall noted in 1831, the United States-Indian relationship is "perhaps unlike that of any two people in existence" and "marked by peculiar and cardinal distinctions which exist nowhere else." Cherokee Nation, 30 U.S. at 16, 8 L.Ed. 25. In the early 1800s, the United States pursued the policy of "removal"-i.e., the relocation of tribal communities from their homelands in the East and Midwest to remote locations in the newly acquired Louisiana Purchase territory. Trial Tr. at 846. In 1824, the Bureau of Indian Affairs (BIA) was created to implement that removal policy.[2] Trial Tr. at 152-53; 846. For the majority of the Nineteenth Century, the federal government entered into a series of treaties and agreements identifying the lands owned by the tribes. These treaties and agreements were frequently violated or amended to reduce Indian holdings and to open more land to non-Indian settlers. Trial Tr. at 848-49. During this time period, the tribes held their land communally, so there was very little individual ownership of land. Non-Indian land, whether communally or individually owned, could be sold without the approval of the federal government. Trial Tr. at 849-50. By the late 1870s, the government had embarked upon the reservation era. This era was a particularly miserable time for the Indians because the reservation policy deprived Indians of their traditional economy and made them dependent upon the federal government. Trial Tr. at 851-52. During the reservation era, the BIA became the provider of foods and goods to the tribes. Trial Tr. at 852. Hence, by the 1870s, the government had successfully placed Native Americans in a state of coerced dependency. After this relationship of dependency between the United States and the Indian people was forcibly established, the allotment era began. Driven by a greed for *8 the land holdings of the tribes, Congress passed the 1887 General Allotment Act, also known as the Dawes Act. See 25 U.S.C. § 348. Through the allotment process established by the Dawes Act, a delegation of American "peace commissioners" would negotiate with the tribes for the allotment of their reservations. The tribes were compensated for their land, and each head of household was allotted some amount of property, usually in 40-, 80-, or 160-acre parcels. The "surplus" lands that were not allotted to Indian individuals were then opened to non-Indian settlement. Trial Tr. at 852-56. Allotted land was held in trust by the United States for the individual Indians. Therefore, the Indians could not lease, sell, or burden their property without the approval of the federal government. More importantly, the United States had again successfully managed to deprive the Indian people of more land, this time in return for the creation of a trust status. Between 1887 and 1934, 90 million acres—about sixty-five percent of Indian land—left Indian ownership. Trial Tr. at 857-57. The allotments were the product of the United States' effort to eradicate Indian culture. As defendant Gover testified: the thinking was that it was tribalism that held the Indians back; that what they needed to do was develop the sort of individualism that had been so beneficial for the United States in its expansion, and allotment was the way to do that. But ... the things that accompanied allotment ... were really even more dreadful than the allotment policy itself. For example, there was a system of boarding schools established, and suddenly the Indian people were subject to these mandatory education requirements imposed by the Bureau of Indian Affairs. These schools were run by the Bureau of Indian Affairs, and they would take these kids away from their families, put them in these boarding schools. They might or might not see their parents again for years, or ever. Train them in English. They forbade them their native languages. They forbade them their religions. They cut their hair, and they dressed them ... like non-Indian kids would be dressed, and literally tried to turn them into white people. * * * * * * They were so confident in this assimilation policy that there was actually a sunset in most of the allotment agreements that said after 25 years the trust patents will be withdrawn, you'll be issued a fee patent, each individual who owned this land, and you will go forth and prosper. You will own the land outright, and may do with it what you wish. Trial Tr. at 855-57. In 1934, another major shift in federal policy toward Indians occurred. With the enactment of the Indian Reorganization Act of 1934, the federal government reversed its assimilation policy and directed BIA to rebuild the tribal communities and government structures. See 25 U.S.C. § 462. This new policy ended the allotment era and authorized the Secretary of the Interior to acquire land in trust for the tribes and for individual Indians. The Reorganization Act also indefinitely extended the trust period for the allotments that had already been made, which is why the United States has a continuing duty to administer allotted Indian lands (and the funds arising from those lands) in trust today. Trial Tr. at 863. Less than two decades after the Reorganization Act was passed, in the early 1950s, congressional policy swung in a new direction. According to Assistant Secretary Gover, "this time the policy was called the `termination policy.' Termination basically meant the severing of the relationship between the tribe and the United States, and, specifically, the severing of the trust relationship." Trial Tr. at 864. Congress directed BIA to identify tribes that were *9 said to be "ready for termination, ready to be released from federal supervision because by this point the conclusion had been reached that the real problem with Indian affairs, and the real reason the Indians are poor is that they're under the thumb of the federal government." Trial Tr. at 864. Following that direction, the United States withdrew recognition of the existence of certain tribes and forswore any responsibility to those tribes or their people as Indians. The tribal assets were gathered up and either administered by a corporate entity or distributed among the tribal members. Much like the allotment policy, this policy devastated the tribal communities. Trial Tr. at 864-67. The termination policy ended quickly. After the 1960s, no further tribes were terminated. Trial Tr. at 867. The end of the termination policy brought about the onset of the modern era of Indian policy: self-determination and self-governance. Beginning in the 1960s, tribal governments began to reconstitute themselves and take over governmental programs. The highlight of this policy was the enactment in 1975 of the Indian Self-Determination and Education Assistance Act, which permits tribes to assume any of the functions BIA carries out on the reservation. Upon proper request, BIA must contract with that tribe to conduct any such function in lieu of BIA. Trial Tr. at 867-68. BIA can refuse to grant the contract only if the tribe does not have the proper accounting system or the proper property management or administration capabilities to carry out the contract. If BIA finds that the tribe does not have those capabilities, then BIA is obligated to provide technical assistance to the tribe in order to help it develop the capacity to carry out the contract. Tribes may also assume those functions performed by Office of Trust Fund Management (OTFM) with regard to IIM trust accounts, through a contract or compact with Interior. To date, three tribes have compacted to manage IIM trust accounts. Trial Tr. at 309 & 1376. Under the Self-Determination Act, if BIA contracts with a tribe to allow that tribe to perform a function, the financial resources that BIA would use in providing that service, including the overhead, are transferred to the tribe. In essence, these funds, which represent almost seventy percent of BIA's budget, just pass through BIA to the tribes. Trial Tr. at 870-71; 881-82; Defs.' Ex. 47. B. The IIM Trust As a result of the allotments made from 1887-1934 and the Indians Reorganization Act's indefinite extension of the resulting trust period, the United States currently holds approximately 11 million acres of plaintiffs' individual land allotments in trust. Trial Tr. at 903-04. The United States itself is the trustee of the IIM trust. Congress has designated the Secretary of the Interior and the Secretary of the Treasury as the United States' trustee-delegates for certain trust management functions. Within Interior, several agencies perform some IIM trust function. These agencies include the Bureau of Indian Affairs (BIA), the Office of the Special Trustee (OST), the Office of Trust Funds Management (OTFM), the Bureau of Land Management (BLM), the Minerals Management Service (MMS), and the Office of Hearings and Appeals (OHA). BIA generally has responsibility for trust land management and income collection. Almost any transaction involving IIM trust lands must be approved by BIA. To make these approvals, BIA maintains personnel to review the transfers of those lands and to appraise the lands in conjunction with those transactions. There are also income-producing activities on many of these lands, including grazing leases, timber leases, timber sales, oil and gas production, mineral production, and rights-of-way. Each of these activities requires the approval of BIA. Trial Tr. at 116-17; 123; 127; 904-05. These activities are the source of IIM trust funding. Given BIA's *10 role, it logically follows that it is responsible for maintaining complete and accurate land and title records. These records, in theory, provide the basis for IIM trust payments, which are controlled by OTFM. OTFM, in conjunction with the Department of the Treasury, performs the banking aspect of Interior's trust responsibilities. Trial Tr. at 126. OTFM and BIA collection officers collect payments and send them to an agency or area office for deposit in a private bank where there is a Treasury General Account.[3] Trial Tr. at 1239-40. MMS deposits its collections into a Treasury General Account and then notifies OTFM by facsimile of the deposit. Trial Tr. at 1242. Once the deposits are posted on the OTFM system, OTFM credits the amounts either to an IIM trust account holder or to a special deposit account, depending upon the information contained in work tickets prepared by the collection officers. Trial Tr. at 1237-41.[4] There are over 300,000 IIM trust accounts on Interior's system. Trial Tr. at 114-15; 542-43. Interior cannot provide the exact number of IIM trust accounts that should be on this system. This number could increase (assuming greater omissions than duplicates) or decrease (assuming greater duplicates than omissions). Plaintiffs contend that there should be approximately 500,000 IIM trust accounts. While the overall number of accounts is quite large, it is important to note that OTFM has identified 16,700 IIM trust accounts with a stated balance below one dollar and no activity for at least eighteen months. Trial Tr. at 320-21 & 1287. Of course, it is a farce to say that these accounts actually contain any given amount. Although the United States freely gives out "balances" to plaintiffs, it admits that currently these balances cannot be supported by adequate transactional documentation. As mentioned above, OTFM may also credit income from allotted lands to a special deposit account. A special deposit account is a holding account within the IIM trust system where money is placed for safekeeping because, for a variety of reasons, it cannot or should not be paid to an IIM trust account holder. In addition, special deposit accounts are quite often used to hold performance bonds or other money subject to a contingency. Trial Tr. at 487-89; 1045; 1242-44. Administrative fees collected by BIA are also often put in special deposit accounts. The administrative fees belong to BIA, not individual Indians, and therefore the fees in these special deposit accounts is not trust money. Trial Tr. at 1045-46; 1246-47.[5] Further, in many areas, funds are placed in a special deposit account while BIA's ownership and lease file is reviewed to make sure that it is current. Then, in an overnight process, those funds are released from the special deposit account into the individual IIM trust accounts. Trial Tr. at 1245-46. Once OTFM has credited the appropriate IIM trust or special deposit accounts, at the end of each day several automatic processes begin. First, overnight, funds credited to unsupervised IIM trust accounts, if they meet a monetary threshold of $15.00 ($5.00 for oil and gas), are automatically identified and a check file is created.[6] The next day, Interior prints and *11 mails a check to the IIM trust account holder. Trial Tr. at 1250-51. Second, also overnight, the balances in supervised accounts or in accounts with a balance below the threshold are automatically moved into a control account and, the next day, invested in the Treasury overnight instrument, awaiting longer term investments. Trial Tr. at 1247-49; 1304.[7] Interest earned on these investments is credited once a month to the individual accounts or the special deposit accounts.[8] Trial Tr. at 1247-49; 1304. Other bureaus of Interior perform functions associated with the management of the assets (i.e., the management of the trust lands). For instance, MMS acts as the collection agent for oil, gas, coal, and other types of royalty payments once a lease is in effect. Trial Tr. at 122. BLM checks for environmental compliance on trust lands and verifies certain mineral production figures. Trial Tr. at 124-25. OHA handles the probate of wills affecting Indian land ownership. Treasury's IIM trust responsibilities include holding and investing IIM trust funds at the direction of Interior, as well as maintaining certain records related to these functions. Of course, Treasury also performs central accounting for the federal government and serves as the government's financial manager. Trial Tr. at 3297-99. Treasury maintains a single account for IIM trust funds, known generally as the "IIM account," and does not maintain individualized IIM trust or special deposit accounts. Trial Tr. at 1240; 1247; 3312. This common fund is pooled for investment purposes. The IIM trust account at Treasury, which holds funds for OTFM prior to disbursement or investment, is maintained in the name of OTFM. Trial Tr. at 1240; 3309-11; Pls.' Ex. 181. When Interior deposits funds for credit to the IIM trust account, the funds themselves go into Treasury's operating account at the Federal Reserve Bank of New York. Trial Tr. at 2204. Like the accounts in which money is deposited at the area or agency level, this account is referred to as Treasury's General Account or TGA. At the time of deposit, Interior does not tell Treasury to which agency account the deposit should be credited. Trial Tr. at 2211-12. Rather, Interior reports deposits to Treasury by Agency Location Code (ALC). An ALC is a code assigned by Treasury to an agency and is used by the agency to report financial transactions. Trial Tr. at 2209. The typical ALC used by OTFM is 4844. Trial Tr. at 3312. Because it covers transactions made at a higher organizational level, the 4844 ALC covers more than just IIM trust transactions. Trial Tr. at 732 & 2209. Each agency is responsible for classifying its own deposits placed into the TGA and for reporting this information on a monthly basis to Treasury. Also at the end of the month, Treasury reports to the agency certain summary-level accounting information. Trial Tr. at 1254 & 3309. This information consists of overall totals by account, as opposed to detailed information about individual transactions. Trial Tr. at 3299-3300. Again, because of the ALC system, Treasury *12 keeps only summary-level accounting information; OTFM keeps the individualized accounting records. Trial Tr. at 3299-3300. OTFM uses Treasury's information to reconcile its own records. Trial Tr. at 1254. Thus, Treasury's records are important to a proper accounting of plaintiffs' trust money. The Treasury General Account at the Federal Reserve Bank is a cash account, but the various agency accounts maintained at Treasury do not actually hold funds. Trial Tr. at 3390. Instead, amounts are debited and credited to the various agency accounts only as accounting entries. Pursuant to standard procedures for dual-entry accounting, a deposit of IIM trust funds ultimately leads to offsetting accounting entries to the TGA and the IIM trust account. Trial Tr. at 4908. Conversely, a disbursement of IIM trust funds ultimately results in offsetting accounting entries to these accounts. Trial Tr. at 4908-09. More precisely, the issuance of a check (by OTFM) leads to offsetting entries to the IIM trust account and an outstanding check liability account. Payment of a check leads to offsetting entries to the checks-outstanding account and to the TGA. Trial Tr. at 4908-09. No entry is made to the TGA for an issued check until it actually is paid. Disbursements of IIM trust funds are charged against the IIM trust account. Trial Tr. at 3394. When directed by Interior, funds in the IIM account are to be invested by Treasury: All funds held in trust by the United States and carried in principal accounts on the books of the United States Treasury to the credit of individual Indians shall be invested by the Secretary of the Treasury, at the request of the Secretary of the Interior, in public debt securities with maturities suitable to the needs of the fund involved, as determined by the Secretary of the Interior, and bearing interest at rates determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable securities. 25 U.S.C. § 161a(b).[9] When OTFM issues a check, the funds remain in the TGA, so the United States still enjoys the benefit of the trust money; however, until the check is cashed, the amount is debited from the invested fund, thereby depriving the beneficiary of any interest. Although this time lapse may be short in the private sector, it can be much longer in the IIM trust context because OTFM often has incorrect addresses for the recipients. C. The Indian Trust Fund Management Reform Act of 1994 By the mid-1980s there was uniform disapproval of the manner in which Interior was administering the IIM trust. In 1988, Congress began to hold oversight hearings related to the handling of government trust accounts. On April 22, 1992, the House Committee on Government Operations issued a report entitled Misplaced Trust: The Bureau of Indian Affairs' Mismanagement of the Indian Trust Fund, H.R. No. 102-499 (1992) (Pls.' Ex. 1). This thoroughly documented report concluded that Interior had made no credible effort to address the problems in trust administration in a "wide range of areas" and that Interior had disobeyed many congressional directives aimed at forcing Interior to correct trust management practices and reconcile the Indian trust accounts. Pls.' Ex. 1. In response to these criticisms, Interior, through the accounting firm Arthur Andersen, conducted a study to determine whether the IIM trust and tribal trust accounts could be reconciled simultaneously. In an initial report, Arthur Andersen concluded that, within certain parameters, *13 the tribal accounts could be reconciled, but that the IIM trust system would pose a far more difficult task, perhaps costing over $200 million. Trial Tr. at 529-30; Trial Tr. at 318-19. Even that expenditure would have yielded only a "reconciliation" of approximately eighty-five percent reliability. Based largely on the findings made in Misplaced Trust, Congress passed the Indian Trust Fund Management Reform Act. See Pub.L. No. 103-412 (1994) (Pls.' Ex. 1). The Act recognized and codified the trust duties of the Secretary of the Interior, as the primary trustee-delegate of the United States, toward the IIM trust. See 25 U.S.C. §§ 162a(d) & 4011 (Supp.1999); see also infra Part IV (listing these duties). Because Congress recognized that Interior's pattern of historic failures could not be allowed to continue, the 1994 Trust Fund Management Reform Act established within Interior the Office of the Special Trustee for American Indians. OST is headed by the Special Trustee, who reports directly to the Secretary. 25 U.S.C. § 4042(a). To advise the Secretary and to help oversee defendants' trust management practices, Congress limited the availability of the position of Special Trustee to those people with certain statutory job qualifications, which were meant to ensure that a trust expert capable of assisting the Secretary would fill the position. See id. § 4042(b)(1). This trust expert was to submit his version of a "comprehensive strategic plan" that would provide the reforms necessary to ensure "proper and efficient discharge of the Secretary of the Interior's trust responsibilities to Indian tribes and individual Indians." Id. § 4043(a)(1). Similarly, the Strategic Plan was to identify reforms necessary to ensure "discharge of the Secretary's trust responsibilities" in compliance with the 1994 Trust Fund Management Reform Act, to provide an opportunity for Indian tribes to assist in the management of trust accounts, and to identify a timetable for implementing the Strategic Plan. Id. § 4043(a)(2). Congress charged the Special Trustee with "general oversight of reform efforts," but he was given no final decision making authority, as that was left with the Secretary of the Interior. Id. § 4042(a). The Special Trustee was given several duties, including the monitoring of the "fair and accurate accounting" of the trust accounts. Id. § 4043(b). Moreover, Congress required the Special Trustee to submit an annual report to Congress reporting on Interior's progress in discharging its statutory duties. Id. § 4043(f). However, despite the wishes of several influential legislators and the plaintiffs in this case, the Trust Fund Management Reform Act vested the Special Trustee with largely an advisory role. While the Special Trustee must oversee reform, coordinate the reform efforts, and keep Congress informed, the Special Trustee must still report to the Secretary. This limited authority is consistent with the language of the Trust Fund Management Reform Act and the mandate of 25 U.S.C. § 162a(d). In that section, Congress placed many of the United States' enumerated trust responsibilities on the Secretary of the Interior; logically, the same person who bears the trust duties must be given the ultimate authority to discharge them. See Defs.' Resp. to Pls.' FF/CL at 168. D. The Strategic Plan In July 1995, President Clinton nominated Paul Homan to be the first Special Trustee under the Act. Trial Tr. at 109; Defs.' Ex. 106. In April 1997, the Special Trustee submitted his final Strategic Plan to the Secretary and to Congress. The Strategic Plan concluded that the "government increasingly was unable to keep pace with the rapid changes and improvements in technology, trust systems and prudential best practices taking place in the private sector trust industry." Pls.' Ex. 4 at 3. The Special Trustee's Strategic Plan *14 called for a new Indian Development Bank and for a centralized Indian Fiduciary Records Center, both of which would have been substantial organizational changes and would have required legislation. After the Strategic Plan's issuance, Secretary Babbitt met with the Special Trustee to discuss how to handle the Indian trust problems. The Secretary, as the official with final decision making authority, decided to take an approach whereby those portions of the Strategic Plan that did not require new institutions would be implemented. Defs.' Ex. 28; Defs.' Ex. 29; see also Trial Tr. at 331-32; 2938; 3705-06. The Secretary called for the implementation of the following components of the Strategic Plan: (1) acquisition/upgrade of trust systems; (2) records "cleanup"; (3) elimination of trust asset processing backlogs; and (4) strengthening support functions, including records, policies and procedures, training, and internal controls. The Secretary "deferred" three items: (1) new management and organization structures outside Interior; (2) introducing new trust products or services based on the prudent investor rule; and (3) an Indian development bank. Defs.' Ex. 28; Trial Tr. at 2942 & 3712. E. The High Level Implementation Plan (HLIP) The HLIP plays a key role in this case not as Interior's plan to reform the IIM trust, but rather as Interior's most comprehensive plan to discharge its trust duties. The HLIP consists of twelve "sub-projects," only a few of which are central to the court's purposes of determining the propriety of affording plaintiffs prospective relief. 1. Data Cleanup As set forth in numerous congressional reports and the HLIP itself, Interior has had significant data quality and backlog problems during its tenure as the United States' primary trustee-delegate for the IIM trust. See Defs.' Ex. 45, at 10. These problems have largely caused the systemic flaws that survive to this date. Document management is the single biggest issue that must be comprehensively addressed if plaintiffs are to be assured any practical prospective assurance that their trustee will be able to give them an accurate accounting. As the Acting Special Trustee testified, "[t]he records are the base for the entire trust operation." Trial Tr. at 3164. a. OST Trust Fund Records Data Cleanup Under the HLIP, OST data cleanup focuses on one discreet data issue—deriving the beneficiaries' vital information, such as names, addresses, and Social Security numbers.[10] This information is to be gathered, in theory, by taking all the paper documentation contained in the administrative files, which should contain all the necessary vital statistical information, and reconciling that information with the data contained on the "legacy" electronic data bases: the Integrated Records Management System (IRMS) and the Land Record Information System (LRIS).[11] This process is to take place before loading the correct vital information into the new Trust Fund Accounting System (TFAS). Trial Tr. at 1258. Because of document mismanagement by Interior, achieving this basic goal involves several steps. First, OST will acquire the records, jacket folders, and unfiled documents from OTFM's IIM trust offices across the country. Trial *15 Tr. at 1262; Defs.' Ex. 62 at 12.[12] Second, OST will establish inventory control of the files. Third, OST will inventory the documents for inactive or closed accounts.[13] Fourth, the data-cleanup team will move on to verifying certain data and reviewing active accounts. Specifically, Data Com Inc., Interior's contractor, will look at the physical file folders and verify that OTFM has the most current address, Social Security number, and back-up documentation by comparing that data to the information contained in the computer system. If a discrepancy exists between the papers in the file and the information on the computer, then Data Com will refer the discrepancy to OTFM, with a recommended change. Trial Tr. at 1270-72. To guide this process, OTFM has created a policy on mandatory documents. A mandatory document is something that OTFM must have to properly manage that account (such as the certificate of Indian blood and social security number). Trial Tr. at 1273-75; Defs.' Ex. 63. If any of the mandatory documents are missing during file review, the contractor at the completion of cleanup will contact other agencies in an attempt to gather copies of the missing documents. Trial Tr. at 1276-77. Once OST, through Data Com, completes this initial vital-information cleanup of files, the BIA area offices will be ready for TFAS to be installed. Even after TFAS is installed in a particular location, however, OTFM will still need to locate and file additional vital documentation. Trial Tr. at 1293. Data cleanup, as that phrase refers to the jacket files, is continuing post-deployment. OTFM, aided by its contractor, will visit BIA agencies, contact tribal offices, and write to IIM trust account holders to confirm or correct vital information. OTFM will also attempt to locate account holders for whom it does not have current addresses by contacting agencies and tribal officials, publishing lists of such account holders, and posting these lists on OTFM's World Wide Web Internet site. Trial Tr. at 1277-78; 1322; 1398-99; 1810. Once the vital documentation is completed, the files will be imaged so that they can be reviewed by authorized users at any BIA location in the country. After the documents are imaged, the hard copies are sent to the central records center. Trial Tr. at 1293. In short, Interior's data-cleanup project addresses two problems that have been allowed to accumulate up to this point— the unknown identities of the beneficiaries, to whom defendants should be sending (their own) money, and the "whereabouts unknowns" (i.e., lack of correct addresses) for the mailing of these payments. That defendants need to undertake such a sophisticated plan just to identify that which they should already know speaks volumes about the current state of IIM trust management. b. BIA Trust Asset Records Data Cleanup Interior's goal for BIA is to "have a level of data in the system that allows for proper land title records and every allottee and every tribe to receive the correct dollars that they're supposed to get." Trial *16 Tr. at 2504. As is the case for OTFM, data cleanup for BIA's TAAMS, the new Trust Asset and Accounting Management System, is being performed by Data Com. Trial Tr. at 2274. The high-level phases in this cleanup include: (1) assessing the area offices to determine what needs to be done; (2) establishing metrics for a particular area and any training that may be necessary to assist the data-cleanup needs at the area; (3) pre-deployment cleanup; (4) performing post-deployment cleanup; and (5) utilizing verification and audit procedures to determine data accuracy rates and whether additional cleanup activities are warranted. Trial Tr. at 2275-76; 2765-66; 2769; Pls.' Ex. 238, at 3, 7, 8, 20-22. Pre-deployment data cleanup strictly involves validating the data already contained in the two legacy systems. This process is accomplished with the help of an automated tool that compares the data in IRMS and LRIS and "kicks out" anomalies. These anomalies are not eligible for migration to the TAAMS system; instead, they will be analyzed and resolved by a team of Data Com and BIA staff and then encoded into TAAMS. Trial Tr. at 1083-85; 2278; 2307-08; 2627; 2769. The pre-deployment BIA document cleanup is narrowly focused. The pre-deployment phase does not address the problem of missing data. Similarly, this phase will not catch errors unless the two legacy systems contain inconsistent information. As long as the systems are similarly incorrect, no validation of data will be made at this point, despite the admitted unreliability of the legacy systems' data. Nonetheless, this narrow focus is a logical starting point. Given the pre-deployment phase's purpose, data cleanup must continue after the implementation of TAAMS (i.e., "post-deployment"). Post-deployment data clean-up for BIA includes the continued processing of paperwork backlogs in each BIA office. Pls.' Ex. 238 at 7. Making the two (correct) assumptions for the moment that defendants owe plaintiffs an accurate accounting and that defendants are missing a share of necessary documents to reach that end, then it follows that defendants must retrieve documents from outside sources, also referred to as third-party documents. Defendants currently have no written plan for doing so. Interior's most specific plan for BIA data cleanup is Plaintiffs' Exhibit 238, a draft "Data Clean Up Subproject Plan," created no earlier than May 1, 1999. As described above, the plan contains five document clean-up phases, two of which are the already described pre- and post-deployment phases. The fifth and final phase is entitled "Verification and Audit." Pls.' Ex. 238, at 26. While this phase sounds like a sterile accounting exercise, it is truly the most important and challenging phase. Due to the backloaded construction of the BIA document clean-up plan, because no previous phase includes a plan for retrieving all of the missing data required to give plaintiffs an accurate accounting, this last phase encompasses the only hope for a planned retrieval of missing data from third-party sources. It is not clear, even at the highest level of planning, whether Interior intends to gather these third-party documents, which are necessary to support an accounting. For example, Interior's fifth phase includes the following: After TAAMS has been populated with BIA data, the records in TAAMS need to be verified to ensure that they are complete and accurate to the greatest extent practical. This task is scheduled to be performed subsequent to the conversion to TAAMS, and will involve verifying the data in TAAMS against hardcopy records, other hardcopy sources, and available reliable sources of information. Id. at 15. First, it can be readily seen that this statement does not explicitly provide for missing data to be retrieved if BIA does not already have it. Only the records *17 "in TAAMS" will be verified and audited, and no previous phase calls for TAAMS to be "populated" with outside information. Id.; see also Defs.' Ex. 45 ("Data Clean Up Defined. The Data Clean Up Sub projects within OST and BIA are aimed at ensuring data housed in existing or new systems are accurate and timely, and at eliminating transaction processing backlogs ...." (emphasis added)). Second, what the language gives, it also takes away. The records "in TAAMS" will be verified to ensure that they are "complete," but only "to the greatest extent practical." Pls.' Ex. 238, at 15. Similarly, this approach "will involve verifying the data in TAAMS" against "other" records, but plaintiffs are left with only the promise that "roughly 30% of all BIA hardcopy records will be reviewed," and that 30% will be "at least partially" reconciled to the TAAMS information. Id. On the other hand, the plan does include a review of "other hardcopy sources and available sources of information." Id. It is clear that Interior has no intention of beginning to gather necessary third-party documentation, if at all, until the fifth phase of document cleanup (except for "vital information" and anomalies in the legacy systems). If this process is to occur at all, then it is not scheduled to begin before January 2001. See id. at 30 (showing that there are no Phase Five beginning or ending deadlines through December 31, 2000). Even at that point, Interior's intent to gather third-party documents is dubious, and hedged at that. Therefore, it can be fairly stated that Interior has no written plan to gather this necessary missing information required to render an accurate accounting. Indeed, it does not even have a discernable intent to do so. 2. BIA and OHA Probate Backlog BIA has a probate backlog of approximately 12,000 cases. These probates affect the land interests in the IIM trust; in turn, land interests are determinative of the proper payment amounts that must be made to each affected beneficiary. Thus, the probate backlog has a direct effect on the proper administration of the IIM trust and must be eliminated. The HLIP currently contains no formal plan to deal with the probate backlog. However, a "re-invention team" has developed a plan that will be formally included in the HLIP revision. That plan has several components including: (1) hiring additional staff working on probate at the area level; (2) using skilled "SWAT" teams to go area by area to reduce the backlog; (3) asking Congress for an amendment to the authorizing statute to increase the size of the estate that can be probated administratively to avoid an automatic-hearing right in the Office of Hearings and Appeals; and (4) designing an automated tracking system. Trial Tr. at 984-85. In addition to these anticipated improvements, BIA is taking other steps to address the problem of fractionated Indian land interests in allotments.[14] *18 3. BIA Appraisal Program Appraisals are important for evaluating whether the trustee is managing the underlying assets prudently. While asset management is not part of this lawsuit, appraisal backlogs affect the processing of leases, which in turn affects the ability to render an accounting. The most recent number given to the court, which was derived by the former Special Trustee, states that there were approximately 212,000 title defects that needed to be addressed through reducing the appraisal backlog. Trial Tr. at 143-44. Interior plans to reduce some of the appraisal backlog by re-defining when appraisals are required as a matter of Interior policy. This re-definition has lead to two fundamental appraisal changes. First, BIA has determined that a single appraisal before a lease is entered is sufficient, as opposed to appraising the property on a yearly basis. Trial Tr. at 1020-21. Second, because BIA is not required to provide appraisals on properties not held in trust, BIA has eliminated its practice of providing appraisals of properties held in fee. Trial Tr. at 1010-11; Defs.' Ex. 56; Defs.' Ex. 57. BIA has begun to implement a computer-generated modeling technique to value fractional land interests. In so doing, Interior hopes to achieve some balance between the need to value the very small interests in these allotments versus the cost of performing full-fledged appraisals on those same small interests. Trial Tr. at 1016-17. 4. Computer Systems Both Secretary Babbitt and the Special Trustee agreed that the government has fallen behind in maintaining the technical capabilities necessary to track trust resources and that the upgrade of these systems had to take foremost priority. Trial Tr. at 3707-10. For this reason, Interior committed to the acquisition and implementation of the two new systems— TFAS and TAAMS. Defs.' Ex. 28; Defs.' Ex. 45. a. OST Trust Fund Accounting System (TFAS) TFAS is a commercial-off-the-shelf (COTS) trust fund financial management, as opposed to asset management, system. Plaintiffs' own expert testified that TFAS is a major improvement over the present system. Trial Tr. at 4271-72. In fact, in terms of the software and hardware itself, plaintiffs do not appear to quarrel with TFAS or its capabilities per se. Assuming that complete and correct information is retrieved and loaded onto TFAS, and further assuming that TFAS can properly integrate with the other necessary computer and business systems, then it should allow Interior to bring OTFM's financial management practices up to commercial standards. With these two assumptions made—which is a huge leap given the current state of documentation and planning—TFAS will accurately track disbursements, receipts, and securities; handle the pricing or evaluation of securities; produce accurate account statements; keep and update correct names and addresses; reconcile accounts; provide for direct deposits; provide effective internal controls, including a routine file maintenance audit trail; and enforce internal controls through the use of passwords. *19 b. BIA Trust Asset and Accounting Management System (TAAMS) BIA still maintains much of its data relating to IIM trust accounts on two separate electronic database systems: LRIS, which stores information on certified title for allotted lands, and IRMS, which stores data regarding IIM trust account transactions. Some BIA offices use these systems, some use modified versions of these systems, some use their own "in-house" electronic databases, and others continue to use manual paper systems. Trial Tr. at 1490-91; 2310; 4572; Pls.' Ex. 238, at 9. Thus, the systems used in any given area or agency BIA office vary, which is one significant cause of the current trust management problem. Admitted inadequacies of LRIS and IRMS, which are still operational and used to issue IIM trust checks, include: (1) inconsistent data, making it difficult to identify the appropriate owners of allotments or beneficiaries' appropriate land interests therein; (2) inconsistent use of the legacy systems; (3) significant backlogs in the certification of title; (4) the absence of important information, such as the schedules for payments due on leases; (5) the absence of an adequate general ledger system; (6) the nonexistence of a master list of leases and assets; and (7) insufficient internal controls and audits of the systems. Trial Tr. at 120-22; 148; 152-55; 409-13; 416-18; 420-21; 435; 441-42; 622; 1153-54. The government admits these fundamental flaws in the systems, and it admits that these systems are used to manage and disburse IIM trust funds today. However, the government has purchased a new system that is currently in the pilot stages of implementation, specifically in the Billings Area BIA office. Like TFAS, TAAMS is not yet operational or implemented and therefore is not used to issue IIM trust payments or manage IIM assets. Like TFAS, in pure software and hardware terms, TAAMS appears to be an adequate asset management system as modified to fit BIA's needs. Also like TFAS, however, the ultimate success of TAAMS depends on complete and accurate data and a proper interface with the other trust management business and computer components. With these assumptions made, TAAMS, when implemented, will allow BIA to administer trust assets, generate timely bills, identify delinquent payments, track income from trust assets, and distribute proceeds to the appropriate account holders. The key features of TAAMS that will support these functions are a billing and accounts receivable subsystem and a collection subsystem. TAAMS also will have a major module for administering land title records, a sub-module for probate tracking, and a tickler system that will notify BIA employees of upcoming important events, such as when leases are about to expire, when it is time to advertise leases, and when collections are due. Trial Tr. at 1150 & 2390. TAAMS will generate title status reports and modern title documents (such as used by title insurers). Trial Tr. at 2319. Specifically, TAAMS will pull all tracts of land owned by a single individual nationwide. Trial Tr. at 2810. Conversely, the tract mechanism in TAAMS will provide information on who actually owns the land and the legal description of the tract. In addition, TAAMS will provide all the documents associated with a tract of land or, conversely, will identify the land that a document covers. TAAMS automatically will create a receivable and generate a receivable ledger that gives BIA the ability to track what money is due from leasing and permitting activities. Once payments are received, those accounts receivables will be credited and reconciled. After the money flows into the system, it will be put through the income distribution function for distribution back to the individual account holders. Trial Tr. at 2788-89. TAAMS will calculate interest for money collected and subsequently disbursed. Trial Tr. at 2390; 2758-59. Further, TAAMS will generate *20 payment coupons, which will permit the use of lockboxes. Trial Tr. at 2390. TAAMS also will generate account statements for owners showing all the owners' interest in land. Trial Tr. at 2391. TAAMS will issue reports for land holders covering all transactions related to any leases on that landowner's property. Trial Tr. at 2391. Further, TAAMS will track title and chain of title. Trial Tr. at 2391. 5. OST/BIA Records Management As defendants admit, a coherent plan for the proper retrieval and management of trust documents is critically important to the discharge of the United States' continuing trust obligations. OST and BIA, especially, must function seamlessly with regard to document management. On February 11, 1998, Interior created a records management group to set up a framework to: (1) formalize the transfer of the financial trust records from BIA to OST; (2) prepare a mutual budget for BIA and OST for records management operations; (3) draft, for BIA and OST headquarters' approval, a memorandum of agreement between BIA and OST covering trust records and operational matters, including joint procedures of records management; and (4) develop and submit for departmental and National Archives Records Administration (NARA) approval records control schedules. Defs.' Ex. 41; Trial Tr. at 575-76. Thus, five years after the Trust Fund Management Reform Act, the trustee has planted the seed for responsible document management. Ken Rossman moved to Interior from the State Department and now heads the HLIP records management sub-project. Trial Tr. at 1044; 1872; 2181. Rossman's high-level records management plan was approved by the Acting Special Trustee and Assistant Secretary for Indian Affairs.[15] Trial Tr. at 1044; Defs.' Ex. 58. Rossman's plan contains several action items for records management improvements, including: (1) program management, addressing staffing and oversight responsibility for the records management program; (2) day-to-day records operations, including a process for setting the records retention period for trust related records, daily use of historical records, and *21 clearing the backlog of stored documents; (3) integrated training program, including classroom training and training in the form of publications and guidance; (4) management of electronic records; (5) further development of the records management coordination between OST and BIA; and (6) document production for this litigation. Trial Tr. at 1043-44; 1886-87. Under the approved high-level records management plan, BIA and OST will share a unified records management program with joint procedures on access to records. Trial Tr. at 2118. The unified records management staff will promulgate new record retention schedules for approval by the National Archives and Records Administration (NARA). Trial Tr. at 1977-85. This will allow Interior to resume the normal NARA process of moving records from local offices to Federal Records Centers, Archives, or, when appropriate, disposing of unneeded records. Resumption of the orderly NARA process is a critical step in resolving document storage problems. Trial Tr. at 1992-95. F. Facts Pertaining to Plaintiffs' Interference Claims Beyond their claims centering on the trust management systems put in place by the United States, plaintiffs have alleged that defendant Babbitt has obstructed the Special Trustee's discharge of his statutory duties under the Trust Fund Management Reform Act in two ways. First, plaintiffs contend that the Secretary failed to make budget requests sufficient to address the Special Trustee's needs. Trial Tr. at 167-68. Second, plaintiffs argue that defendant Babbitt acted contrary to law when he reorganized the OST without the approval of Congress or consultation with the Special Trustee. Although pages could be dedicated to Robert Lamb's testimony on the budget process and the context of the budgeting for OST, it suffices to note that the facts are largely undisputed on this first claim. The Indian Trust Fund Management Reform Act did not appropriate any funds for the operation of OST. Trial Tr. at 3496. Defendant Babbitt did not request inordinate sums of money to fund OST, especially during OST's infancy. For example, Interior requested only $447,000 for OST funding in Interior's fiscal year 1996 budget, compared to the $3.5 million request that the Special Trustee had made to fund the operations necessary to produce his Strategic Plan. Even the modest funding that defendant Babbitt did request, however, was slashed by the Office of Management and Budget. The federal government during this period of time was undertaking severe budget cuts and was operating on a series of continuing resolutions rather than a budget approved by Congress. This conservative fiscal philosophy and resulting round of continuing resolutions undoubtedly had an impact on the actual funding and funding requests made for OST. As for defendant Babbitt's re-organization of OST, the facts again are largely not in dispute. Defendant Babbitt claims to have reorganized OST to reflect its current operational structure, placing an operational deputy beneath the position of Special Trustee. Defendant Babbitt reassigned the Special Trustee's head records expert, Joe Christie, to another Senior Executive Service position within Interior. Christie's duties are now carried out by Ken Rossman, who has already been discussed. Defendant Babbitt did not discuss any of these radical changes of the Special Trustee's office with the Special Trustee. The Special Trustee resigned shortly after the Secretary told him of these changes, after the changes had already been ordered. Defendant Babbitt proclaims that he has the authority to do all of this under the applicable laws and regulations. G. The Department of the Treasury Treasury performs several key trust functions in the management of the IIM trust. Treasury's role as trustee-delegate is generally limited to holding those IIM trust funds kept by Interior on deposit at *22 the Treasury and investing the funds as directed by Interior. Within these contexts, plaintiffs have raised certain important issues concerning Treasury's discharge of its IIM trust duties. Plaintiffs have focused on four main claims against Treasury: the time lapse in availability of deposited funds, the loss of interest on issued checks, illegal document retrieval and retention policies, and the sweeping of money into the Unclaimed Moneys and Miscellaneous Receipts Accounts at Treasury. In a stipulation filed with the Court on July 6, 1999, Treasury committed to address some of these issues. 1. Time Lapse in Availability of Deposited Funds Treasury makes deposited funds available to Interior for investment or disbursement on behalf of the account holders as soon as the funds are available to Treasury. Trial Tr. at 2225-26. Funds are available to Treasury when the funds are transferred to Treasury's General Account at the Federal Reserve Bank of New York. Trial Tr. at 2205 & 3396. Treasury has designed an accelerated system for collecting and making deposits available. Trial Tr. at 2206-07. The latest that deposited funds are made available to Interior is, in the case of deposits by check, the next business day after deposit. Trial Tr. at 2225. In the case of electronic funds transfers, funds are available on the day of deposit. Trial Tr. at 2225. The extra day in the case of check deposits is needed to allow time for the collection of funds through the banking system and the transfer of those funds to Treasury's operating account at the Federal Reserve Bank of New York. Trial Tr. at 2205-06 & 2226. With regard at least to check deposits, OTFM acts to invest or disburse deposited IIM trust funds the day after the funds are deposited, or as soon as they are available to be invested or disbursed. Trial Tr. at 1249 (explaining that investment and disbursement is an "overnight process"). The cutoff time for investment at Treasury is 3:00 p.m. Eastern time. Trial Tr. at 3351. The common situation arises in which deposited funds become available to Interior only after 3:00 p.m. Such a situation is most likely to occur with electronic payments, which may settle late in the day after the cutoff time. See Trial Tr. at 2224 (noting that wire transfers can be received by the Federal Reserve Bank in New York as late as 6:30 p.m.). In this situation, the funds may be available to Interior, but as a result of Treasury's cutoff, Interior may be unable to invest them through Treasury until the next day. To address this problem, Treasury has agreed, in the July 6 stipulation, to allow Interior to invest such funds as if the funds had been invested "as of" the prior business day. Defs.' Ex. 103 ¶ 7; Trial Tr. at 3350-51. Indeed, the July 6 stipulation allows Interior to invest any available funds omitted from its overnight investment request as if they had been invested the previous business day.[16] Trial Tr. at 3351. This agreement enables OTFM "to sweep as much money into that overnight investment account as possible for that day's activities," Trial Tr. at 3351, and thereby to "maximize ... the amount of investment that's available to OTFM." Trial Tr. at 3351. 2. Loss of Interest on Issued Checks Plaintiffs specifically challenge the way in which Treasury treats invested funds at the time of IIM trust check issuance. The facts pertaining to this claim are relatively clear and largely undisputed. When IIM trust deposits of plaintiffs' money are made by OTFM into Treasury, Treasury keeps the funds in a Treasury General Account, which is available for the United States' daily financial needs. Although the money itself resides in that account, a *23 number of other operations take place, mainly in the forms of accounting entries and investment. The United States admits that the IIM trust funds are invested, when requested by Interior, until IIM trust checks are issued. When a check is issued to a beneficiary, the money is debited from the investment account, which earns interest, and is placed into a non-interest bearing account until the time the check is negotiated and the funds leave Treasury. Thus, between the time that a check is issued and presented for payment, plaintiffs' IIM trust money earns no interest. During the course of the trial, Treasury agreed to conduct a study of its IIM trust check negotiation practices. Defs.' Ex. 103 ¶ 8; Trial Tr. at 3352. Specifically, Treasury has agreed to: undertake a study, which it anticipates completing within one year ... to determine the average time between the date of OTFM check issuance and the date of presentation of those checks to the Federal Reserve for payment. Defs.' Ex. 103 ¶ 8. Aside from agreeing to study the issue, which in itself does not alter the current practice, Treasury has done nothing to address this issue. 3. Illegal Document Retrieval and Retention Policies Plaintiffs' most significant prospective claim in terms of receiving an accounting deals with IIM-related trust records retention and destruction policies. Specifically, plaintiffs challenge Treasury's policy, enacted pursuant to the destruction schedule promulgated by the National Archives and Records Administration, of destroying all documents after six years and seven months. Treasury historically has followed this policy. Trial Tr. at 142. Treasury cannot, under its current system, segregate IIM trust checks or records from any other type of record. Thus, before the onset of this litigation (and during the litigation for some time), Treasury's documents pertaining to the funds, including canceled checks, went to the shredder despite the admission that the IIM trust is nowhere close to being reconciled. Treasury has partially addressed these issues in the long term through its stipulation. Treasury has agreed to implement a system that will allow IIM trust checks to be retrieved by payee name, which is currently an unavailable function. With regard to the document destruction allegations, Treasury has agreed to work with Interior to propose a new, yet to be determined record retention schedule for trust documents. There is some issue, however, as to whether this new record disposition schedule would change the policy for all IIM-related trust documents or simply IIM trust account documents.[17]See supra II(B) (discussing the "IIM account" at Treasury as one of several accounts involved in Treasury's IIM trust-management process). In the short term, Treasury and plaintiffs have reached an agreement for the retention of IIM trust documents for the purposes of this litigation. See Stipulated Order of Aug. 12, 1999. 4. The Sweeping of Money into the Unclaimed Moneys and Miscellaneous Receipts Accounts at Treasury Finally, plaintiffs make vague accusations about certain money purportedly kept in the "unclaimed moneys" or "miscellaneous receipts" accounts at Treasury. These allegations do not appear in plaintiffs' complaint and they were recently raised at the time of trial. There are only two important factual conclusions to be drawn from the record on these claims. First, plaintiffs have adduced no evidence of a systemic problem with Treasury's handling of plaintiffs' funds in a manner that involves either of these accounts. Second, *24 plaintiffs provide no support for the contention that they are entitled to any prospective relief based upon one instance of improper handling of certain funds. It is undisputed that, at one point in the 1980s, there was one proved instance in which IIM trust money was improperly placed in an unclaimed moneys account. However, plaintiffs have adduced no other evidence beyond this admitted example. Thus, plaintiffs can point to no other evidence that would entitle them to prospective relief. III. Jurisdiction and Scope of Lawsuit Before continuing on to conclusions of law, this court's jurisdiction must be established. Relatedly, the court is compelled to once again state the proper scope of this lawsuit in terms of proper jurisdiction and current case or controversy. Although the court has largely dealt with these issues in earlier opinions, it must do so once again by virtue of the parties' current arguments presented in their proposed findings of fact and conclusions of law. A. Subject Matter Jurisdiction The court has jurisdiction over plaintiffs' statutorily based claims related to the IIM trust. See Cobell, 30 F.Supp.2d, at 31-33. Plaintiffs have alleged various statutory violations, and, in substance, the focus of their claims is to enforce the statutory right to an accounting. Plaintiffs state claims both within and without the Administrative Procedure Act, 5 U.S.C. § 701 et seq. All of plaintiffs' soundly grounded claims arise from the statutory scheme giving defendants pervasive control of plaintiffs' IIM trust money. See United States v. Mitchell, 463 U.S. 206, 224, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Hence, all of these claims "arise under" the laws of the United States and therefore under 28 U.S.C. § 1331, which grants the court federal question jurisdiction. B. Waiver of Sovereign Immunity Because plaintiffs bring their lawsuit against federal officials, plaintiffs must prove a clear waiver of sovereign immunity that covers the substantive claims and remedies that they seek. Plaintiffs have done so. See Cobell, 30 F.Supp.2d at 31-33. Section 702 of the APA waives these officials' sovereign immunity for all of plaintiffs' claims that this court will consider. Section 702 states: An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. 5 U.S.C. § 702. As described in the legislative history of this provision, § 702 was intended "to eliminate the defense of sovereign immunity with respect to any action in a court of the United States seeking relief other than money damages and based on the assertion of unlawful action by a Federal officer." H.R.Rep. No. 1656, 94th Cong., 2d Sess., at 2 (1976). Clearly, plaintiffs' APA claims, which stem from the statutory right to an accounting, see 25 U.S.C. § 162a(d)(1)-(7), fall within this provision. Plaintiffs have repeatedly stated that they do not seek to recover any money or other substitutionary relief. See Cobell, 30 F.Supp.2d at 39-40 & n. 18. The court has so held and has construed their claims in that light. See id. Plaintiffs' claims arising from the statutory right to an accounting are claims for relief "other than money damages" in the purest form. Thus, they fall under the waiver of sovereign immunity in 5 U.S.C. § 702.[18] *25 Despite plaintiffs' disavowal of seeking an order from this court to force defendants to pay money, and notwithstanding that plaintiffs do not seek any other form of relief that is in fact a legal substitute for receiving such payments, defendants still steadfastly contend that "there is a significant issue regarding whether sovereign immunity has been waived" as to the second phase of this lawsuit regarding the actual accounting in light of the controlling statutes. Defs.' FF/CL at 128 n.64. In full, defendants make the following argument: Plaintiffs must show not only that there has been some waiver of immunity, but also that the waiver extends to the particular cause of action asserted. Cf. Lane v. Pena, 518 U.S. 187, 197, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Plaintiffs' claim for an accounting cannot logically be severed from their claims (temporarily shelved for purposes of this case) for monetary reimbursement for alleged breaches of trust. An equitable action whose eventual purpose is to recover money does not fall within the waiver of Section 702, even if Plaintiffs do not seek money in the instant action. Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 119 S.Ct. 687, 692, 142 L.Ed.2d 718 (1999) (equitable action for a lien was not within waiver of Section 702 as it was "merely a means to the end of satisfying a claim for the recovery of money;" thus, plaintiffs' "ultimate claim" was not one for "other than money damages" within the terms of the waiver). Even though this Court struck claims for money damages from the complaint, the close relationship between Plaintiffs' claim for an accounting and their stated desire for money damages is clear from the original Complaint. See Prayer for Relief at ¶ 4 (Plaintiffs ask "for a decree ordering an accounting and directing the defendants to make whole the IIM accounts of the class members"). The common law remedy of an accounting is part and parcel of a monetary claim. See Eichengrun, Remedying the Remedy of Accounting, 60 INDIANA L.J. 463 (1984/1985) ("The true accounting remedy yields a restitutionary award of the defendant's profits wrongfully obtained from the use of the plaintiff's property. The plaintiff must establish some basis for the obligation to account, the defendant is ordered to account, and the plaintiff then gets an order directing payment of the sum of money found due."). For this reason, the claim for a retrospective accounting, which is the basis for Phase II trial and discovery associated therewith, must be dismissed, as Section 702 does not waive sovereign immunity, and this Court accordingly has no jurisdiction over it. Id. In short, defendants misconstrue and then conflate two important jurisdictional considerations—the Supreme Court's recent holding in Blue Fox and the true nature of plaintiffs' claims to enforce their statutory right to an accounting. Similarly, there is absolutely no evidence of the glue that holds defendants' two erroneous premises together—that plaintiffs have made (or will make) "claims ... for monetary reimbursement for alleged breaches *26 of trust," but that these claims have simply been "temporarily shelved for the purposes of this case." Id. First, defendants misconstrue Blue Fox. In Blue Fox, an insolvent prime contractor failed to pay claimant Blue Fox, Inc., a subcontractor, for work that Blue Fox completed on a construction project for the Department of the Army. Blue Fox, 119 S.Ct. at 689. Blue Fox sued the Army directly, as opposed to suing the prime contractor, and attempted to gain an equitable lien on certain Army funds. Id. at 689-90. Thus, Blue Fox sought to artfully plead a money damages action as an equitable action for obtaining a lien, which would have had the same effect as a money damages claim. The equitable lien would have produced a monetary substitute as compensation for Blue Fox's injuries, suffered as a result of the prime contractor's actions. The Court of Appeals for the Ninth Circuit held that § 702 waived the Army's sovereign immunity because Blue Fox had brought an equitable action. Id. at 690. The Supreme Court reversed. The Court began by re-affirming the text of § 702, stating that the government's sovereign immunity had been waived in actions seeking relief "other than money damages." Id. at 691; see also 5 U.S.C. § 702. Next, the Court held, as did this court in November 1998, that § 702's waiver does not turn on whether an action is equitable or legal in nature; rather, the proper issue is whether the claim is one for money damages (i.e., a sum used as compensatory relief to substitute for a suffered loss, as opposed to a specific remedy that attempts to give the plaintiff the very thing to which he was entitled). Blue Fox, 119 S.Ct. at 691; see also Cobell, 30 F.Supp.2d at 40-41. From this point, the court analyzed the nature of Blue Fox's claim for an equitable lien and held that it was, in effect, a claim for money damages and therefore not a claim within § 702's waiver. Id. at 692. The Court's ultimate rejection of Blue Fox's claim for an equitable lien turned upon its finding that the "sort of equitable lien sought" by Blue Fox constituted money damages because its goal was "to seize or attach money in the hands of the [g]overnment as compensation for the loss resulting from the default of the prime contractor." Blue Fox, 119 S.Ct. at 691 (emphasis added). In other words, the equitable lien was attempting to shift a property interest to Blue Fox that would have effectively given it the same relief as a compensatory sum, and therefore this claim fell outside § 702's waiver. Id. (noting that an equitable lien grants a claimant a "security interest in the property, which [the claimant] can then use to satisfy a money claim" (quoting D. DOBBS, LAW OF REMEDIES § 4.3(3), at 601 (2d ed.1993))). Moreover, Blue Fox's action was one for substitute relief, as opposed to specific relief, because it was brought against the government and not the prime contractor. Contrary to defendants' argument, the Court did not hold that all "equitable actions whose eventual purpose is to recover money does not fall within the waiver of Section 702, even if [the claimants] do not seek money in the instant action." Defs.' FF/CL at 129 n.64 (emphasis added). As explained above, the Court specifically held that whether an action is equitable or not is not determinative of whether an action falls under § 702's waiver.[19] Moreover, the Court never held that an action falls outside of § 702's waiver if the claimant's eventual purpose is to seek "monetary redress." Rather, the equitable lien *27 in Blue Fox was itself the transfer of property interest that would have been the basis for the compensatory redress; although Blue Fox may have had to bring a further claim to enforce that lien, the case before the Court involved the shifting of the determinative interest. Furthermore, as stated above, Blue Fox's claim was substitutionary in nature because it sought to recover money from the government, not the prime contractor. Finally, that money may be recovered is not determinative of whether a claim for money damages has been made. As Supreme Court precedent makes clear, it is the nature of the action and the compensation that is conclusive. See Bowen v. Massachusetts, 487 U.S. 879, 893-96, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). The money must be compensatory or substitutive in nature, as it was in Blue Fox. Plaintiffs do not, as explained below, make any type of claim for money in this case. Instead, they seek to enforce a non-compensatory statutory right to an accounting through APA and non-APA means. The Supreme Court in Blue Fox explicitly recognized that, even in the context of paying money, "a suit seeking to enforce [a] statutory mandate itself" falls within § 702's waiver of sovereign immunity. Blue Fox, 119 S.Ct. at 692 (quoting Bowen, 487 U.S. at 900, 108 S.Ct. 2722); see also Rockbridge v. Lincoln, 449 F.2d 567, 573 (9th Cir.1971) ("Appellants[, all Navajo Indians,] are not seeking money damages from the government, nor are they seeking to assert some right against it or to block a government project. The relief they seek does not in any way affect the sovereign power of the United States. The government is not asked to give up a right, to grant a concession, to dispose of property or to relinquish authority. Appellants merely seek a court order directing certain government officials to perform acts which Congress has already directed those officials to perform ...."). Thus, defendants' expansive interpretation of Blue Fox is fatally flawed and undermines their argument on this point. Second, as alluded to above, defendants desperately attempt to make plaintiffs' claims something that they are not. As their general attack, defendants cite to a law review article for the proposition that the "true accounting remedy yields a restitutionary award ... and the plaintiff gets an order directing payment of the sum of money found due." Defs.' FF/CL at 128 n.64 (citing James Eichengrun, Remedying the Remedy of Accounting, 60 Indiana L.J. 463, 463 (1984/1985)). Whether at common law a "true" accounting claim necessarily involved an order for payment of money is irrelevant. Plaintiffs have expressly disavowed seeking an order for the payment of money in this case. Thus, accepting defendants' "true accounting" argument as correct for the moment, plaintiffs simply do not seek every element of a "true" accounting, as that phrase was meant at common law. Instead, and most importantly (as the government is fond of recognizing in other contexts) plaintiffs do not even properly seek a common-law claim for an accounting. See infra subpart III(C). Instead, they seek to enforce their statutory right to an accounting as that phrase is meant under the provisions of 25 U.S.C. § 162a(d)(1)-(7) and 25 U.S.C. § 4011. Although the interpretation of this statute does, as the government admits, demand that the court look to common law for guidance, it does not mean that plaintiffs must by necessity seek an order of money to be paid. To the contrary, plaintiffs narrowly seek to preclude defendants from acting contrary to law in abridging plaintiffs' rights granted by statute and to affirmatively force defendants to comply with the law as stated by Congress. Third, as their more specific attack, defendants try to argue that plaintiffs' accounting claim is merely "part and parcel" of a hypothetical money damages claim that has been "temporary shelved for the purposes of this litigation." This argument is mistaken and is simply another variation on the premise that plaintiffs must really be seeking money damages. *28 There is no evidence of any money damages claim being made in some other court, much less such a claim being "temporarily shelved." Further, even if plaintiffs were to eventually bring a money damages case in the Court of Federal Claims, and assuming that they somehow relied on their accounting claim in this case to support their argument in that lawsuit, Blue Fox cannot be read to deprive this court of jurisdiction based on such unsubstantiated assumptions. As explained above, the Blue Fox claimant sought an equitable lien as its substitutionary remedy. The equitable-lien action was itself a claim for money damages in disguise because it would have given the claimant a property interest in the Army's funds. The thrust of Blue Fox's suit was compensation. In contrast, the type of accounting sought in this case (which is really just a statutory right) would not itself be substitutionary; no property interests will change hands. At most, the enforcement of this statutory right may partially support some future monetary claim (but not necessarily "money damages"), which, because this is plaintiffs' own money, will only be compensatory to the extent that the money is missing from the trust.[20] In the case at bar, plaintiffs seek "the very thing to which they are entitled," an accounting of their money that actually exists in the IIM trust. Blue Fox, 119 S.Ct. at 692 (quoting Bowen, 487 U.S. at 895, 108 S.Ct. 2722). Therefore, defendants' arguments on these jurisdictional points fail. C. Plaintiffs' Common-Law Claims for Breach of Trust One significant point of confusion in this lawsuit has been the source of law giving rise to plaintiffs' valid claims. Plaintiffs continue to believe, despite this court's references to the contrary, that they state valid common-law claims against the government for breach of trust. At the motion to dismiss stage, the court was not in a posture to dismiss these claims because of different possible interpretations of plaintiffs' complaint. At the summary judgment stage, the court stated that it read plaintiffs' soundly grounded claims to be derived from statute, not the common law.[21] Now, because plaintiffs have continued to pursue rights allegedly granted to them by the common law of trusts (but apparently not statute), the court must finally address this issue. This issue has not been squarely addressed before by any court and has been the source of some discussion in academia. See generally John F. Duffy, Administrative Common Law in Judicial Review, 77 TEXAS L. REV. 113 (1998); Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 STAN. L. REV. 1213 (1975). The court believes that the government has the better argument on this point. Plaintiffs cannot state common-law claims for breach of trust against these federal officials in the context of financial mismanagement of the IIM trust. "There is no such thing as a common law of judicial review in the federal courts." Stark v. Wickard, 321 U.S. 288, 312, 64 *29 S.Ct. 559, 88 L.Ed. 733 (1944) (Frankfurter, J., dissenting). On this issue, plaintiffs have taken the approach that the IIM trust is a trust and, therefore, the standard duties governing the trustee-beneficiary relationship at common law can be imported through sources such as the Restatement (Second) of the Law of Trusts and, presumably, the case law underlying such treatises. It is true that there is abundant case law to support the propositions that the government's conduct with relation to the Native American people must generally "be judged by the most exacting fiduciary standards," see Seminole Nation v. United States, 316 U.S. 286, 296-97, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942), and that "where only a relationship between the [g]overnment and the tribe is involved, the law respecting obligations between a trustee and a beneficiary in private litigation will in many, if not all, respects, adequately describe the duty of the United States," Nevada v. United States, 463 U.S. 110, 142, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983). Importantly, however, it does not follow from these principles that plaintiffs may simply claim that they are the beneficiaries of a trust relationship with the United States and therefore invoke all of the rights that a common-law trust entails. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIANS LAW 169 (1942) (noting that the full body of common-law duties and rights "does not exist between the United States and the Indians"). As the Supreme Court also stated in Nevada, "the [g]overnment is simply not in the position of a private litigant or a private party under traditional rules of common law or statute." Nevada, 463 U.S. at 141, 103 S.Ct. 2906. "The federal power over Indian lands is so different in nature and origin from that of a private trustee ... that caution is taught in using the mere label of a trust plus a reading of Scott on Trusts to impose liability on claims where assent is not unequivocally expressed." Mitchell II, 463 U.S. at 234, 103 S.Ct. 2961 (Powell, Rehnquist, and O'Connor, JJ., dissenting) (quoting Mitchell v. United States, 229 Ct.Cl. 1, 664 F.2d 265, 283 (1981) (Nichols, J., concurring in part and dissenting in part)). Plaintiffs' actionable rights in this case stem from and are shaped by three bodies of law. In all three cases, plaintiffs' substantive rights are created by—and therefore governed by—statute. Thus, to the extent plaintiffs seek relief beyond that provided by statute, their claims must be denied. Plaintiffs' statutorily-based claims against the government can be brought under the APA. See Rockbridge, 449 F.2d at 573. First, as a matter of litigating against the government, plaintiffs may enforce rights granted to them by statute under the provisions of the APA. Persons seeking review under the APA must show that they suffered a "legal wrong because of agency action" or that they were "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. This right to review of administrative action does not stand alone; persons seeking APA review must show some independent statutory right to which they are entitled. See Rasmussen v. United States, 421 F.2d 776, 779 (8th Cir.1970). Second, to the extent that certain governmental actions cannot be reviewed under the APA, then plaintiffs may seek non-statutory review. See Chamber of Commerce, 74 F.3d at 1327. In Chamber of Commerce, the Court of Appeals for the District of Columbia Circuit instructed that non-statutory review stems from American School of Magnetic Healing v. McAnnulty, in which the Supreme Court held: acts of all [governmental department's] officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts generally have jurisdiction to grant relief .... Otherwise the individual is left to the absolutely uncontrolled and arbitrary *30 action of a public and administrative officer, whose action is unauthorized by any law, and is in violation of the rights of the individual. 187 U.S. 94, 108, 23 S.Ct. 33, 47 L.Ed. 90 (1902). In construing McAnnulty, the Court of Appeals held that successful non-statutory review demands that the challenged conduct be ultra vires and that the governmental action violate either a specific statutory prohibition or deprive an individual of a right granted by statute. Chamber of Commerce, 74 F.3d at 1327. Thus, although "non-statutory" in title, non-statutory review demands the existence of a statutory right or prohibition. Third, plaintiffs may rely upon the rights effectively given to them by the Supreme Court in Mitchell II. In Mitchell II, the claimants brought an action for money damages in the Court of Claims under the government's waiver of sovereign immunity in the Tucker Act, 28 U.S.C. § 1491. The Court found that the Tucker Act was indeed a waiver of sovereign immunity for certain claims. To ultimately prevail on these claims, however, the plaintiffs had to find a basis for the substantive right to recover money damages. In Mitchell II, the plaintiffs found that right when the Supreme Court stated that the "statutes and regulations" before it "clearly [gave] the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians [and they] thereby establish[ed] a fiduciary relationship and define[d] the contours of the United States' fiduciary responsibilities." Mitchell II, 463 U.S. at 224, 103 S.Ct. 2961. While the Court did recognize that "all of the necessary elements of a common-law trust [were] present," id. at 225, 103 S.Ct. 2961, the Court later went on to re-emphasize its earlier position that it was the "statutes and regulation at issue" that "clearly establish[ed the] fiduciary obligations of the [g]overnment," id. at 226, 103 S.Ct. 2961. Again, as under the enforcement mechanisms of APA and non-statutory review, it is the statutes and regulations that create and define the enforceable trust relationship. Plaintiffs wish to rely upon Mitchell II for the establishment of the trust, but then they seek to ignore Mitchell II when it comes to the establishment of rights. See, e.g., Pls.' Resp. to Defs.' FF/CL, at 2 ("The trust for individual Indians is clearly a trust within the terms of Mitchell II."). This approach must be rejected. While plaintiffs correctly point out that the Trust Fund Management Reform Act should not be rigidly interpreted as would a carefully crafted "trust instrument," it is nonetheless accurate as a general matter that it is the statutes that give defendants pervasive control over plaintiffs' lands and money. It is this pervasive control that has created the trust relationship. See id. Although the Trust Fund Management Reform Act may not explicitly recite every trust duty owed by the government to plaintiffs, this does not mean that every common-law duty applies, either. Whatever the scope of the government's legal duties under the IIM trust, the source is statutory law. "The extent of [a trustee's] duties and powers is determined by the trust instrument and the rules of law which are applicable." RESTATEMENT (SECOND) OF TRUSTS § 201 (1959). Accordingly, even though the IIM trust is a trust, as that term is used in Mitchell II, plaintiffs must point to rights granted by statute if they are to be enforced against the government. There is simply no persuasive basis for doing so on a purely common-law basis. In summary, it does not matter whether plaintiffs rely upon a traditional statutory analysis of their rights against the government through APA and nonstatutory review or, on the other hand, whether they claim to be beneficiaries of a trust created under the terms of Mitchell II (which must be enforced through one of these other mechanisms in the absence of an implied right of action). In either instance, the court's review and plaintiffs' rights are derived from and determined by statute. The court recognizes that there is *31 some older authority (not pressed by plaintiffs), dealing primarily with trust asset management, that could be construed more broadly to be contrary to the court's holding today. See Cramer v. United States, 261 U.S. 219, 229, 43 S.Ct. 342, 67 L.Ed. 622 (1923) (voiding, under trust law principles, a United States land patent that conveyed Indian lands to a railway and holding that "the fact that [the Indians'] right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive"); Manchester Band of Pomo Indians v. United States, 363 F.Supp. 1238, 1245 (N.D.Cal.1973) (holding that the United States bears the fiduciary trust duty to make trust property productive, and relying, at least primarily, on the common law of trusts); Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp. 252, 257 (D.D.C.1972) (holding that the Secretary of the Interior breached the United States' duty of loyalty despite the absence of any applicable treaty or statutory provision). Nonetheless, the court is compelled to follow the more current holdings of the Supreme Court, especially Mitchell II's instruction that "statutes and regulations establish a fiduciary relationship and define the contours of the United States' fiduciary responsibilities." Mitchell II, 463 U.S. at 224. Consequently, to the extent that plaintiffs seek relief solely alleged to be afforded to them by rights arising under the common law of trusts, plaintiffs have failed to state a claim. The times at which this court may legitimately create federal common law are both "few and restricted." Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) (quoting United States v. Standard Oil Co., 332 U.S. 301, 308, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947)). While this court must consider the common law when interpreting the statutes creating and governing the IIM trust, see NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) (citing Perrin v. United States, 444 U.S. 37, 42-43, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)), a statute or regulation must nonetheless authorize this importation of common law authority. See Duffy, Administrative Common Law in Judicial Review, supra, at 116 (quoting Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 883, 887 (1986)). This statutorily-based perspective is the proper avenue for commonlaw analysis in this case. See infra Parts IV-VI. An adjudication of rights arising purely from federal common law should be eschewed because, as the Supreme Court unanimously has stated, the "function of weighing and appraising [policy considerations required by pure common-law analysis] `is more appropriately for those who write the laws, rather than for those who interpret them.'" O'Melveny & Myers v. FDIC, 512 U.S. 79, 89, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994) (quoting Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 98 n. 41, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981)). For these reasons, the court will dismiss plaintiffs' pure common-law claims. D. Scope of Lawsuit The balance of the court's task today involves only plaintiffs' requests for prospective relief with regard to their rights arising from the IIM trust and related statutes. The interplay between the two components of this bifurcated case is an important issue, however, and worthy of brief discussion. Everyone understands that the second phase of this case will involve a trial regarding defendants' rendition of an accounting. In general terms, that process will involve the government bringing forward its proof on IIM trust balances and then plaintiffs making exceptions to that proof. The government mistakenly assumes, however, that because "trial two" involves the actual accounting then the scope of the required accounting—even at the most basic level—is a matter that need not be addressed today. See Defs.' FF/CL at 1 n.1. On this point, the government is incorrect. See infra section V(B)(1) & n.31. The government *32 alludes to the argument that the Trust Fund Management Reform Act does not require a "historical" accounting. This argument necessarily brings the issue of whether the Act requires an accounting of all IIM trust money within the scope of today's decision. Simply put, the court cannot declare defendants' duties and assess whether defendants are in compliance with these duties without establishing the funds to which the duties apply. See infra section V(B)(1) & n.31. The disposition of this narrow (but threshold) issue leaves all other accounting issues as matters for the second component of this litigation, consistent with the government's position.[22] With the boundaries of the two components clarified, the court will turn its attention to plaintiffs' requests for prospective relief. In Mitchell II, the Supreme Court alluded to the availability of prospective remedies in Indian trust fund cases, and the government apparently did not take issue with the availability of such prospective remedies in that case: Absent a retrospective damages remedy, there would be little to deter federal officials from violating [plaintiffs'] trust duties, at least until the allottees managed to obtain a judicial decree against future breaches of trust.... The [g]overnment contends that violations of duties imposed by the various statutes may be cured by actions for declaratory, injunctive or mandamus relief against the Secretary, although it concedes that sovereign immunity might have barred such suits before [the passage of 5 U.S.C. § 702]. Mitchell II, 463 U.S. at 227, 103 S.Ct. 2961. The court recognizes that there are certain important distinctions between the case at bar and Mitchell II. For example, Mitchell II was a money damages case brought in the Court of Claims under the waiver of sovereign immunity provided by the Tucker Act, 28 U.S.C. § 1491. The instant suit is the non-monetary analog of Mitchell II in the financial mismanagement context; it is an "other than money damages" action brought under APA and non-statutory review in federal district court under the waiver of sovereign immunity provided by 5 U.S.C. § 702. Nonetheless, it can hardly be said that the Court of Claims has broader prospective powers than this court. To the contrary, the Court of Claims' jurisdiction is almost exclusively concerned with damages awards, see id., 463 U.S. at 216 & n. 15, 103 S.Ct. 2961, whereas this court has equitable powers stemming from its inherent powers, as verified or augmented by statutory authorities such the APA, see 5 U.S.C. §§ 702 & 706, and the All Writs Act, 28 U.S.C. § 1651. Thus, the Supreme Court's allusion to the Mitchell II plaintiffs' rights to prospective relief under the IIM trust may have been a direct reference to what is now the case before this court today. As described in various places above, plaintiffs allege several claims that will not be considered. For the purpose of clarity, a comprehensive list of these claims will be discussed here. First, and most obviously, plaintiffs' claim for an actual accounting is a matter left for the second phase of this bifurcated case. See supra. Second, for the reasons given above, the court will dismiss plaintiffs' pure common-law causes of action for breach of trust. See supra III(C). Although many of these same duties may arise, as the government admits, as concomitants to the government's statutorily enumerated trust duties, the common-law nature of those actions can not be considered actionable in themselves.[23]*33 Third, as explained below, the court will not comprehensively address issues that the government concedes and that, therefore, are not in dispute. See infra Part IV. Specifically, defendants do not dispute that: (1) The IIM trust is a trust. Defs.' Resp. to Pls.' FF/CL, at 4.(2) Congress has conferred primary responsibility for management of the IIM trust on the Secretary of the Interior. Id. at 4-5.(3) Defendants owe plaintiffs the duties that Congress has mandated. See id. at 10; see also infra Parts IV-VI (interpreting certain aspects of these statutory duties). (4) These statutorily based duties must be interpreted in light of the common law of trusts and the United States' Indian policy. See Defs.' Resp. to Pls.' FF/CL, at 8 n.5. (5) Proper record keeping and appropriate practices and procedures are important components of proper trust management. Defendant DOI's Factual Stipulations, filed June 11, 1999, at 2 n.2. All of these positions significantly narrow the disputed issues. In addition to these more legally based admissions, Interior has made significant concessions on some factual matters, as well. In a written stipulation filed on the eve of trial, Interior admitted that, as of the commencement of trial: 1. [T]he Department of the Interior cannot provide all account holders with a quarterly report which provides the source of funds, and the gains and losses. [See 25 U.S.C. § 4011.] 2. [T]he Department of the Interior does not adequately control the receipts and disbursements of all IIM account holders. [See id. § 162a(d)(2).] 3. [T]he Department of the Interior's periodic reconciliations are insufficient to assure the accuracy of all accounts. [See id. § 162a(d)(3).] 4. [A]lthough the Department of the Interior makes available to all IIM account holders the daily balance of their account and can provide periodic statements of the account balances, the Department does not provide all account holders periodic statements of their account performance. [See id. § 162a(d)(5).] 5. [The] Department of the Interior does not have written policies and procedures for all trust fund management and accounting functions. [See id. § 162a(d)(6).] 6. [T]he Department of the Interior does not provide adequate staffing, supervision and training for all aspects of trust fund management and accounting. [See id. § 162a(d)(7).] 7. [The Department of the Interior's] record keeping system [is inadequate]. [See id. § 162a(d)(1), (3), (4), (6).] Def. DOI's Factual Stipulations, filed June 11, 1999, at 5-6, 2 n.2. More generously, Secretary Babbitt admitted in his testimony that: 1. He is "aware that there are many individual Indians who have not and cannot at this time get an accurate accounting." Trial Tr. at 3762; see also 25 U.S.C. § 162a(d)(1)-(7). 2. As of trial, "the entitlements of Individual Indians that are dictated by the trust responsibilities of the United States are not being fulfilled." Trial Tr. at 3765. 3. "The fiduciary obligation of the United States government is not being fulfilled." Trial Tr. at 3768. 4. "A major portion of that responsibility rests with [the] Secretary of the Interior." Trial Tr. at 3768. *34 Like Interior, Treasury has filed a written stipulation of its own. Plaintiffs ask this court to order Treasury to take certain actions in its role as a trustee of IIM trust funds. However, because Treasury has agreed in this stipulation to take some of these actions without court order, some of plaintiffs' claims are now moot. Specifically, Treasury has agreed to take the following actions, upon which this court bases its decision today: RECORDS RETRIEVAL: DEVELOPMENT OF NEW SYSTEMS 1. Treasury's current system does not allow Treasury to search and retrieve IIM checks drawn on the Treasury from individual payees without predicate information ([i.e.,] check symbol, serial number) from Interior. 2. New System for Negotiated Checks—Within one year of the filing of this stipulation, Treasury will install a new system to retrieve by payee name (and potentially an additional unique identifier such as an alpha-numeric designation from Interior) information from IIM checks negotiated after the new system becomes operational. 3. New System for Checks Issued, but not Negotiated—Provided that [OTFM] provides payee names and potentially an additional unique identifier to Treasury (as it presently provides other information on disbursed checks), Treasury will install, within one year of the filing of this stipulation, a new system to retrieve by payee name (and potentially an additional unique identifier such as an alphanumeric designation from Interior) information from IIM checks issued by OTFM after the new system becomes operational. This system will provide information on checks that have been issued but not negotiated. RECORD RETENTION 4. Treasury will consult with the Department of the Interior to identify IIM-related documents maintained or created by Treasury necessary to meet the government's trust obligations. 5. Following consultation with Interior, Treasury will evaluate and submit its proposed revised record retention schedules for IIM-related documents to the Archivist of the United States .... The revised schedules will address the existing undifferentiated check records as well as differentiated records once IIM check information is segregated. 6. Until the new retention schedules are in effect, Treasury will preserve: a. original checks, and digitized and microfilm copies of negotiated checks; b. check information from these same checks in electronic form ([i.e.,] check serial number, date and amount); c. monthly reports of canceled checks (either in electronic form or hard copy as retained in the normal course of business); and, d. IIM deposit fund investment records (either in electronic form or hard copy as retained in the normal course of business), specifically requests for investment/redemption, transaction confirmations, and monthly account statements. AVAILABILITY OF DEPOSITS FOR INVESTMENT 7. Although current OTFM practices with respect to timing of investment conform to industry standards, Treasury will nevertheless, within fifteen (15) days of the filing of this stipulation, allow OTFM, on the morning of the next business day, to invest "as of" the prior business day, all deposits that were available to Treasury the prior business day but were not included in that day's OTFM overnight investment request. Stipulation of the Department of the Treasury, filed July 6, 1999, at 1-3. Treasury's admissions moot much of the relief that plaintiffs seek. First, Treasury's admissions moot plaintiffs' concerns regarding the "front-end float," which is *35 the phrase that has been used to describe the delay in availability of plaintiffs' IIM trust funds between the time that OTFM receives the money and the time the money is made available to Treasury. See supra section II(G)(1). Plaintiffs' claim against Treasury was based on the fact that certain OTFM funds received after the daily cut-off would lose interest on overnight investments. As seen above, Treasury now has agreed to allow OTFM to invest "as of" the prior business day. Thus, the issue is resolved. Second, Treasury's stipulation also dramatically reduces the number of disputed issues as to the retention of certain relevant documents necessary for the United States to discharge its duty to render an accounting. See supra subpart II(G). Although Treasury's document destruction practices will ultimately conform to the applicable record retention schedule that is to be proposed to the Archivist of the United States (which must itself conform with the law controlling Treasury's duties as declared by this court today), until then the only category of IIM-related trust documents that Treasury has not expressly agreed to hold would be those that: (1) are not IIM trust checks, IIM trust check information, or monthly reports of canceled checks and (2) not IIM trust account investment records. So, there is still the potential that non-check, non-IIM account records may not be protected. However, given the scope of Treasury's duties, these protections resolve a large majority of immediate document retention issues. Third, Treasury's stipulation also moots plaintiffs' concerns regarding the non-segregability of IIM trust checks. For negotiated checks, Treasury will be able to segregate IIM trust checks by payee name. For issued (by OTFM) but non-negotiated checks, Treasury will also be able to segregate IIM trust checks by payee name, assuming that OTFM gives them that information. Interior's and Treasury's concessions, in combination with the court's dismissal of plaintiffs' pure common-law claims, significantly narrow the landscape of disputed issues in this lawsuit. These disputed issues for this phase of the trial thus have been reduced to the following: 1. Plaintiffs' declaratory judgment action, including the proper interpretation of plaintiffs' statutorily based rights with regard to an IIM trust accounting, whether defendants are currently in violation of these rights, and the appropriate remedy for such violations, if any. 2. Plaintiffs' claims of "obstruction" of the Special Trustee made against defendant Babbitt, which encompasses the budget request and reorganization of OST actions. 3. Whether this court should place the IIM trust into receivership or otherwise play a continuing role with regard to the oversight of defendants' discharge of their statutorily based IIM trust duties. Accordingly, the court will address some final jurisdictional issues and then turn to the merits of these claims. E. APA "Jurisdiction"[24] The court has already addressed defendants' jurisdictional APA arguments once before in this lawsuit. See Cobell, 30 F.Supp.2d at 30-35. Defendants now raise new arguments regarding the "final agency action" component of general APA review. Although these arguments appear to be contrary to statements made by predecessor government counsel at the motion to dismiss stage, they must nonetheless be addressed once again in light of this court's duty to re-assess its jurisdiction when reasonably questioned. Finality of agency action is generally a jurisdictional *36 prerequisite under the APA. DRG Funding Corp. v. Secretary of Housing and Urban Dev., 76 F.3d 1212, 1214 (D.C.Cir.1996). The government now contends that the HLIP is not final agency action because of the ongoing revisions of the document. Because the HLIP is (and always will be) a work in progress and, in defendants' view, is simply the implementation plan stemming from defendant Babbitt's decision in August 1997 to move forward with certain trust reforms proposed by the Special Trustee and to "defer" other measures, the implementation plan therefore relates back to the Secretary's final decision and should not itself be considered final for the purposes of judicial review. See supra subpart II(D); Defs.' Ex. 28. This argument, geared solely toward the HLIP, need not be squarely addressed because it ignores one half of the court's previous jurisdictional ruling. In the November 1998 decision, the court identified two bases of final agency action. First, upon which the government today seizes, the court held that the HLIP constitutes final agency action. See Cobell, 30 F.Supp.2d at 33. This result was reached as the result of a concession made by predecessor government counsel. See id. However, the court also held that "the accounting system that the government has enacted and continues to use in the administration of the IIM trust provides this Court with reviewable final agency action for the purposes of 5 U.S.C. § 704." Id. The court believes that this second holding was clear and correct. In November 1998, the time of the earlier jurisdictional ruling, the enacted and continually used, current system employed to render an accounting was what is today described as the "legacy" system. To the extent that this name implies that the legacy system has been shelved, the label is a misnomer. The legacy system, with all of its admitted flaws, is the system used today to collect funds, issue checks, and otherwise administer the IIM trust. Any new plans that the government has for trust reform will not replace the "legacy" system until some date years into the future. Government counsel simply misunderstands the court's earlier holding on this point to have been that TFAS or TAAMS were final agency action. Trial Tr. at 5037 (Government counsel: "And I don't know, but I took that as TAAMS and TFAS. Maybe it was just one or the other."). It meant neither. To the court's knowledge, no IIM trust beneficiary has ever been issued a check resulting from processes performed by TAAMS, TFAS, or the business system implemented under those computer systems' regime. See Cobell, 30 F.Supp.2d at 34 ("The agency's [current] accounting system has been and continues to be implemented, and the plaintiffs have no choice but to have their accounts administered under it. Thus, the accounting system that has been chosen and used by the defendants to administer the plaintiffs' IIM trust accounts cannot be said to be tentative or interlocutory in nature." (footnote omitted)).[25] Although this holding has not been directly challenged, the court reinforces that, in certain respects, it is the effect of the government's current "legacy" system that aggrieves plaintiffs today. As explained in detail below, defendants have specific intermediate statutory duties, short of but necessarily leading up to the ultimate duty to render an accurate accounting, pursuant to 25 U.S.C. § 162a(d)(1)-(7) and other Trust Fund Management Reform Act provisions. These specific duties create rights in favor of plaintiffs. While it is true that a reasonable time must be allowed for defendants to bring themselves into compliance *37 with Congress's specific mandates, as discussed below, this reasonable deadline is now past-due in certain key respects with regard to certain statutory provisions.[26] To enforce these rights, plaintiffs must attack the final agency action that is causing their harm. See 5 U.S.C. § 702 ("A person ... adversely affected or aggrieved by agency action within the meaning of a relevant statute ... is entitled to judicial review thereof."). Plaintiffs' harm is being caused, at least in part, by the system that was in place in November 1998 and continues to be in place today, the so-called "legacy" system. While defendants are busy implementing the HLIP at their own speed, plaintiffs' rights are effectively unaddressed by the trustee. The system currently in place, as opposed to the one that may be put in place after the years of implementation of the Secretary's decisions, seems to be the much more logical final agency action carrying legal consequences today. Indeed, each day the specific statutory rights addressed below go unaddressed, the more difficult it will be for plaintiffs to receive an accurate accounting. The courts have been instructed to make the finality of agency action determination in a "pragmatic way," with an eye toward whether the agency action is definitive and has "direct and immediate" adverse impact on the challenger of the action. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) v. National Mediation Bd., 670 F.2d 665, 668 (7th Cir.1981). In practical terms, there can be no greater finality as to Interior's definite current practice of issuing IIM trust money and the direct and immediate impact that action has on plaintiffs' alleged statutory rights. Additionally, plaintiffs have correctly alleged that, to the extent no final agency action exists, they state claims for "agency action unlawfully withheld or unreasonably denied." 5 U.S.C. § 706(1). While the merits of this claim will be addressed below (because it involves an interpretation of the Trust Fund Management Reform Act), for jurisdictional purposes it suffices to note that courts have the duty to ensure that agency action is not unlawfully withheld or unreasonably denied. See Forest Guardians v. Babbitt, 174 F.3d 1178, 1187-91 (10th Cir.1999); Sierra Club v. Thomas, 828 F.2d 783 (D.C.Cir.1987); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C.Cir.1981). To the extent that defendants are correct regarding final agency action, which they are not, the Court of Appeals for the District of Columbia Circuit has recognized that "[c]laims of unreasonable agency delay clearly fall into that narrow class of interlocutory appeals from agency action over which [courts] should exercise [their] jurisdiction." Telecommunications Research & Action Ctr., 750 F.2d at 79. Therefore, as to the APA claims addressed below, this court has proper jurisdiction to consider plaintiffs' claims of unreasonable agency inaction or delay. F. Administrative Record Despite the filing of two rounds of dispositive motions, neither the court nor plaintiffs were afforded the opportunity to review defendants' administrative record until the eve of trial in this case. Still, the focal point of this court's APA review "should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Given the novelty of the issues in this government trust case, the complexity of the decisions to be made, and the late filing of a voluminous (thirty-four volume) administrative record, the government concedes that the court should rely upon both "the administrative *38 record submitted by defendants and the testimony which explains the administrative record." See Defs.' FF/CL at 133 (citing National Treasury Union v. Hove, 840 F.Supp. 165, 168 (D.D.C.1994)). Extrinsic evidence is appropriate for consideration when the "processes utilized and factors considered by the decisionmaker require further explanation for effective review," which the government rightly concedes. Sokaogon Chippewa Community v. Babbitt, 929 F.Supp. 1165, 1172 (W.D.Wis.1996) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Public Power Council v. Johnson, 674 F.2d 791, 793-95 (9th Cir.1982)). Accordingly, the scope of the court's review will proceed on the administrative record and the appropriate extrinsic evidence in the record. IV. Declaratory Judgment—Basic Principles Consistent with their underlying theory of this case as an equitable common-law action for breach of trust, plaintiffs ask for a declaration of all trust duties arising from the IIM trust. See, e.g., GEORGE T. BOGERT, TRUSTS § 153 (6th ed. 1987) ("[A] beneficiary may bring a suit in equity to secure the advice of the court as to the meaning of the trust instrument or as to questions of law affecting the trust administration."). The court has already held that plaintiffs' purely common-law claims must be disregarded because all of plaintiffs' trust rights are grounded in statute and therefore must be analyzed accordingly. See supra subpart III(C). Despite this rejection of their common-law theory, however, plaintiffs can be afforded much of the same relief under the Declaratory Judgment Act, 28 U.S.C. § 2201,[27] and the APA, 5 U.S.C. §§ 703[28] & 706.[29] The government impliedly agrees that an interpretation of plaintiffs' IIM trust duties is necessary to determine whether defendants have breached any of these trust duties,[30] and it explicitly agrees that, assuming some breach, declaratory relief would be an acceptable form of remedy. *39 When a court must review an agency's construction of a statute that the agency administers, the standard of review is governed by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 841-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). In Chevron, the Supreme Court announced the two-step process of reviewing an agency's interpretation of law: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Id. at 842-43, 104 S.Ct. 2778. While it is not clear whether Interior has taken any clear position on its duties (aside from its counsel's legal arguments), these Chevron principles will guide the court in its review of the statutory mandates of Congress and defendants' carrying out of these mandates.[31] The court assumes that the position of counsel is the same as the position of the agencies that counsel represent. By passing the Declaratory Judgment Act, "Congress sought to place a remedial arrow in the district court's quiver." Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). The decision of whether to issue a declaratory judgment on any given legal issue is within a district court's "sound exercise of its discretion." Id. Given the statutory (and Article III) limitation of the adjudication of issues of "actual controversy," the court will carefully circumscribe its declaratory analysis today. The court will not issue a declaratory judgment as to the statutory trust duties already explicitly provided for by the statutes and admitted to by the government; these are not matters of actual controversy. Similarly, and contrary to plaintiffs' common-law approach, the court will not declare every right that arises from the statutory scheme creating the trust. Given the unique statutory nature of the IIM trust and the pertinent language of the APA, the court feels that as an equitable matter it should only declare rights "[t]o the extent necessary to decision." 5 U.S.C. § 706(1). The court's declaratory judgment rests upon the meaning of certain specific provisions of the Indian Trust Fund Management Reform Act. The government admits that it must comply with Congress's mandates concerning the management of the IIM trust. Congress has required that, with regard to financial management of the IIM trust, defendants must: 1. Account for the daily and annual balance of all funds held in trust by the United States for the benefit of individual Indians. 2. Provide a periodic statement of performance at the end of each calendar quarter that identifies: (a) the source, type and status of the funds; (b) the beginning balance; (c) the gains and losses; (d) the receipts and disbursements; and (e) the ending balance. *40 3. Perform an annual audit on a fiscal year basis of all funds held in trust by the United States for the benefit of an individual Indian. 4. Provide adequate systems for accounting for and reporting trust fund balances. 5. Provide adequate controls over receipts and disbursements. 6. Provide periodic, timely reconciliations to assure the accuracy of accounts. 7. Determine accurate cash balances. 8. Prepare and supply account holders with periodic statements of their account performance and with balances of their account which shall be available on a daily basis. 9. Establish consistent, written policies and procedures for trust fund management and accounting. 10. Provide adequate staffing, supervision, and training for trust fund management and accounting. 25 U.S.C. § 4011(a)-(c); Id. § 162a(d)(1)-(7). The current issues are what, in terms of plaintiffs' prospective claims, these provisions require, whether defendants are currently in breach of any of these duties, and, if so, to what extent defendants have a plan to bring themselves into compliance in order to obviate the need for prospective relief. V. Declaratory Judgment—The Secretary of the Interior A. Overview Plaintiffs have proved four statutory breaches of IIM trust duties by the Secretary of the Interior that warrant prospective relief. All four of these violations arise from Interior's failure to establish "consistent, written policies and procedures for trust fund management and accounting," contrary to specific statutory duty. Id. § 162a(d)(6). Specifically, Interior currently: (1) has no written policies and procedures for collecting from outside sources missing information necessary to render an accurate accounting of the IIM trust; (2) has no written policies and procedures for the retention of IIM-related trust documents necessary to render an accurate accounting; (3) has no written policies and procedures for computer and business systems architecture; and (4) has no written policies and procedures for the staffing of trust management functions. All four of these items are required to render an accurate accounting, as mandated by Congress. All four of these provisions are trust duties declared today under the Trust Fund Management Reform Act. Interior has had more than reasonable time to create these plans. Interior's agency actions of administering the IIM trust under its current system and its unreasonable delay in providing for these written plans are arbitrary, capricious, contrary to law, in excess of statutory limitation, and short of statutory right. 5 U.S.C. § 706. Accordingly, the court declares these rights and further declares that defendants are in breach of these statutory IIM trust duties. B. Declaration of Trust Duties Arising from the Indian Trust Fund Management Reform Act 1. The Secretary of the Interior's Duty to Perform Accounting on All IIM Trust Money The threshold issue raised by Interior is whether the Trust Fund Management Reform Act imposes on the United States and, a fortiori, its trustee-delegates, the duty to render a "historical" accounting.[32] In other words, the issue is whether the command that "[t]he Secretary [of the Interior] *41 shall account for the daily and annual balance of all funds held in trust by the United States for the benefit of ... an individual Indian," see 25 U.S.C. § 4011, really means "all funds." Defendants apparently claim that the phrase "all funds" means something less than all funds. Defs.' FF/CL, at 1 n.1. Plaintiffs claim that the Trust Fund Management Reform Act creates the duty to render an accurate accounting of all IIM trust fund money held by defendants in trust for individual Indians, without regard to the age of the funds. The analysis on this point is necessarily brief because the first prong of the Chevron analysis—whether Congress has "directly spoken to the precise question at issue"—resolves in favor of plaintiffs. In 25 U.S.C. § 4011, Congress specifically provided, under the caption "Responsibility of Secretary to account for the daily and annual balances of Indian trust funds," that the "Secretary shall account for the daily and annual balance of all funds held in trust by the United States for the benefit of ... an individual Indian pursuant to the Act of June 24, 1938 (25 U.S.C. 162a)." Id. (emphasis added). It is clear that "shall" places a mandatory duty on the Secretary of the Interior to take the enumerated action. Shall means shall. See Forest Guardians, 174 F.3d at 1187. "[W]hen a statute uses the word `shall,' Congress has imposed a mandatory duty upon the subject of the command." Id. (citing United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989)). It is also clear that the individual Indians referenced are the beneficiaries of the IIM trust and that all IIM funds are deposited in the IIM trust pursuant to 25 U.S.C. § 162a. The only issue is whether "all funds" meant, as defendants urge, some subset of funds held in the IIM trust. Judging from the plain language of the text, as Chevron and all basic principles of statutory construction demand, the court can see no basis for inferring any such limitation. To the contrary, Congress directed that the Secretary of the Interior account for all funds. The court cannot put a finer point on it than that. Defendants' position ignores the very reason that Congress was forced to pass the Trust Fund Management Reform Act, as opposed to simply issuing more informal orders—defendants' inability to render an accounting of plaintiffs' money held in trust for the past century. See, e.g., Misplaced Trust, Pls.' Ex. 1, at 21 (Congressman Synar, primary author of the report: "I'm going to tell you, speaking on behalf of myself and [Congressman] Yates and four Congresses, it is our clear intention— and let the Record show—it is our clear intention that these [Indian trust] accounts will be reconciled and audited before there is any movement or transfer [of the funds]. If you interpret that any other way, or if your lawyers or your personnel do, you're interpreting it wrong."). 2. The Secretary of the Interior's Duty to Establish Written Plans for Gathering of Missing Information; Document Retention; Business and Computer Systems Architecture; and Staffing of Trust Management Functions (i.) Introduction The Trust Fund Management Reform Act did not spell out in painstaking detail each step that Interior was required to take in order to render an accurate accounting. Importantly, however, Congress did not simply place the duty of an accounting on Interior and leave it at that, either. Instead, a middle ground was chosen. This middle ground was necessitated by Interior's history of mismanagement of the IIM trust. By the "mid-1980s there was uniform concern about and disapproval of the manner in which Interior was handling the IIM accounts." Defs.' FF/CL, at 23. The source of Congress's frustration was Interior's historic inability to render an *42 accurate accounting of the Indian trust money, including the IIM trust: During the subcommittee's four oversight hearings on this subject, subcommittee members expressed serious concern over [BIA's] inexcusable slowness in resolving the persistent management deficiencies that have plagued the trust fund program. Now, over 2 years after the subcommittee's first oversight hearing, our continuing review suggests that only marginal progress has been made by the Bureau of Indian Affairs in recognizing and correcting these problems. The committee is particularly troubled by BIA's efforts—undertaken only grudgingly—to implement repeated congressional directives designed to provide a full and accurate accounting of the individual and tribal account funds. See Misplaced Trust, Pls.' Ex. 1, at 2. Consistent with its recognition of Interior's historic recalcitrance to Congress's more informal general requests, see Misplaced Trust, Pls.' Ex. 1, at 15-27, Congress codified certain actions that would need to be taken for Interior to reach the ultimate goal of rendering an accurate accounting. One specific mandate in this road map required the Secretary of Interior to "[e]stablish[] consistent, written policies and procedures for trust fund management and accounting." 25 U.S.C. § 162a(d)(6). To determine which "consistent, written policies and procedures" that Congress demanded that Interior "establish," one must determine which sets of policies and procedures are required to reach the goal of the rendition of an accurate accounting. See id. § 162a(d)(1), (6), (7); id. § 4011. The court holds that the "consistent, written policies and procedures" requirement mandates that Interior provide written plans of those functions that are necessary to lead to the rendition of an accurate accounting. Interior's four statutory planning duties declared below arise from this principle, are consistent with the common law of trusts, and take account of the context in which the Trust Fund Management Reform Act was passed. (ii.) Document Retrieval and Retention As the Supreme Court has established, "[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." Amax Coal Co., 453 U.S. at 329, 101 S.Ct. 2789 (citing Perrin v. United States, 444 U.S. 37, 42-43, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)). Courts must "infer that Congress intended to impose on trustees traditional fiduciary duties unless Congress has unequivocally expressed an intent to the contrary." Id. at 330, 101 S.Ct. 2789. At common law, the trustee was "under a duty to furnish to the beneficiary on demand all information regarding the trust and its execution which may be useful to the beneficiary in protecting his rights." GEORGE T. BOGERT, TRUSTS § 141 (6th ed.1987). This common-law duty was tied to a beneficiary's remedy should information not be rendered—an action for an accounting, which is statutorily provided in this case. See id. § 142. Consistent with this amalgam of common-law principle, Interior's requirement to render an accurate accounting, and Interior's duty to establish "consistent, written policies and procedures" necessary to further the rendition of an accounting, the court declares that Interior is under the duty to retrieve and retain all information regarding the IIM trust that is necessary to render an accurate accounting of all IIM trust funds held in trust by the United States.[33] This requirement, when combined *43 with Congress's planning mandate, breaks down further into two separate trust duties. First, Interior must establish a written plan to retrieve missing documents necessary to render an accurate accounting. Second, Interior must establish a written plan to retain IIM-related trust documents necessary to render an accurate accounting. The missing-data problem is undoubtedly the single biggest obstacle that Interior will face in rendering an accurate accounting, once its other business and computer systems are otherwise in place as provided for under the HLIP. The connection between the missing-data problem and the "written policies and procedures" mandate is clear. An accounting, or reconciliation as is sometime used in the Trust Fund Management Reform Act, requires the gathering of necessary information and a mechanism to process that information into a form that can be reconciled with the existing funds. As the Acting Special Trustee testified, "[t]he records are the base for the entire trust operation." Trial Tr. at 3164. Congress was certainly aware of these documentation requirements when it passed the Trust Fund Management Reform Act. Indeed, inadequate document management was one of the top criticisms of Interior's handling of the IIM trust in terms of its eventual ability to render an accounting. See Pls.' Ex. 36, at 20 (showing the independent auditor's conclusion that Interior's "[r]ecords management is inconsistent and inadequate to ensure the proper filing and safekeeping of Trust Fund records to support trust financial activity"). Ordinarily, trust management activities are monitored through an audit of transactional records. Trial Tr. at 148. As the former Special Trustee testified, many of these necessary records are not currently available to Interior and therefore cannot currently be audited. Trial Tr. at 148. Thus, Congress was undoubtedly requiring Interior to establish a written document retrieval plan when it codified the "written plans and procedures" requirement in the Act. The same connection applies to document retention and the "written policies and procedures" requirement. Clearly, the destruction of necessary trust documents will make defendants' statutory task of rendering an accurate accounting impossible. Interior must have a plan (not inconsistent with its declared duty to preserve necessary IIM-related trust documents at least until an accounting is rendered) clearly stating which documents it will keep and which it will destroy, or else plaintiffs will suffer irreparable injury because they will never be able to estimate how much of their own money is in the IIM trust. Accordingly, because a fundamental requirement of defendants' responsibilities in rendering an accurate accounting is retaining the documents necessary to reach that end, and because Congress has mandated that Interior establish written policies and procedures required to meet that goal, Interior must create and finalize a plan for the proper retention of all IIM-related trust documents necessary to render an accurate accounting. (iii.) Systems Architecture and Staffing The Trust Fund Management Reform Act's requirements that Interior establish proper written plans for document retrieval and retention are rooted in the common law and common sense rules that an accounting requires proper supporting documentation. Proper planning for architecture and staffing, like proper document retrieval and retention, are necessary for Interior to render an accurate accounting. Unlike the document-management planning requirements, however, the requirements of architecture and staffing plans are rooted more in Interior's history of IIM trust mismanagement and the context of the Trust Fund Management Reform Act's passage than derived from the common law. Given Interior's admitted historical deficiencies in IIM trust management *44 systems and practices, the admitted inconsistency of these systems' and practices' implementation nationwide, the dramatic reforms planned for trust management, the speed of the implementation of those reforms, the Trust Fund Management Reform Act's requirements of the rendering of an accounting, and the Act's requirement that written plans be established for functions necessary to render an accounting, it follows that Interior must create written plans for computer and business systems architecture. "Architecture," as that term is used in the IIM trust management context, means the blueprint for how various computer systems interface (e.g., TFAS and TAAMS) and how business practices will coalesce with the interfaced computer systems (e.g., the anomalies generated by the interface of TFAS and TAAMS). Trial Tr. at 4395-96. The first component, what the court will term "computer systems architecture," is the blueprint for how the hardware, software, and data involved in each computer system used in each trust management entity will be interfaced in order to carry out the trust functions provided for under the Trust Fund Management Reform Act and the HLIP. The second component, what the court will call the "business-systems architecture," is the blueprint for how personnel responsible for trust management will assimilate and perform the functions required under the new technological systems' regime. This would include, for example, the ways in which current practices will be modified to meet the functions of the COTS version of TAAMS. An architecture plan is a generally accepted step in information systems management. Trial Tr. at 4539. The establishment of a written architecture is critical for several reasons. See Pls.' Ex. 37, at 7 (showing GAO's conclusion that "without systems architecture, Interior lacks assurance that the [HLIP] provides an effective solution to long-standing problems."). First, a written architecture will help prevent inconsistent developments of trust management functions. See id.; Pls.' Ex. 233, at 15. This is especially true given the projection that trust management will still be undergoing major reform beyond the next national election, which may include a change of administrations and, thus, trust management. Second, a written architecture necessitates that the systems and time lines developed to bring defendants into compliance with their statutory duties will be properly thought out. For example, one foreseeable obstacle for trust management reform is anomalous data among the interfaced computer systems. When TAAMS and TFAS interface, for example, each system relies on the other for information necessary to carry out certain business functions, such as check issuance. When the data within the two computer systems do not properly interface—e.g., information is transferred into the wrong field—then an anomaly is created. These anomalies are often placed on a separate error report and usually analyzed manually. Depending on the number of anomalies, the labor required to address these errors could place a drag on defendants' discharge of their trust duties, and thereby alter appropriate deadlines. Trial Tr. at 4534-37. An architecture would address these types of problems prospectively. Third, without an architecture, it will be much more difficult to estimate the amount of funding that must be sought in order to discharge Interior's trust duties. Trial Tr. at 4542. Given the necessity of a written architecture plan and the Trust Fund Management Reform Act's requirement that written policies and procedures be developed for functions necessary to the rendition of an accounting, the court declares that Interior has the duty to develop promptly such an architecture plan. Like the architecture requirement, the "written policies and procedures" requirement *45 of the Trust Fund Management Reform Act necessarily requires Interior to develop a plan for how the trust management operations under its new trust management system will be staffed. As impressive as Interior's new computer systems appear to be, these computer systems still depend upon the labor and skill of Interior's employees. Missing and backlogged information must be put into the computer systems. The information contained in and processed by the computer systems must be monitored and verified. Problems arising from the integration of the computer and business systems must be addressed. All of these (and many others) are logical planning requirements that are necessary for Interior's trust management duties to be properly and promptly discharged. Trial Tr. at 4458. Congress considered Interior's past staffing inadequacy serious enough to provide for adequate staffing in its own separate statutory provision. See 25 U.S.C. § 162a(d)(7) ("The Secretary's proper discharge of the trust responsibilities of the United States shall include ... [p]roviding adequate staffing, supervision, and training for trust fund management and accounting."). Because proper staffing is a function necessary to the rendition of an accurate accounting under the Trust Fund Management Reform Act, the court declares that Interior has the duty to develop such a staffing plan. C. The Deadline for the Discharge of the Secretary of the Interior's Four Declared Planning Duties Has Passed With these four planning duties established, the issue then becomes whether Interior is currently in breach of any of these duties. While the specific issue of whether Interior has the necessary plans will be addressed below, see infra subpart V(D), Interior chiefly relies on timing arguments to rebut plaintiffs' claims of breach of statutory duty. First, Interior argues that the Trust Fund Management Reform Act contemplates that the discharge of Interior's statutory duties would take place under deadlines set by the Special Trustee in his time line for implementation of the Strategic Plan. Second, Interior contends that Congress placed no explicit deadline in the Trust Fund Management Reform Act provisions and that whatever deadline may be implied has not yet passed. The court rejects both arguments. Interior's first contention relies upon a misunderstanding of the purpose of the Special Trustee's timetable. This timetable was to be geared toward the reforms suggested in the Special Trustee's Strategic Plan, not the actions that the Secretary would decide to take arising from the Strategic Plan. See 25 U.S.C. § 4043(a)(2)(c) ("The [Strategic Plan] shall include ... [a] timetable for implementing the reforms identified in the plan ...."). Interior's actions have rendered any timetable that the Special Trustee may have created irrelevant and useless in terms of analyzing the reasonableness of defendants' progress. The Special Trustee's Strategic Plan, as defendants admit, called for two especially bold institutional changes that would not only have taken substantial amounts of time to carry out, but also that would have required legislation—the Indian Fiduciary Records Center and the Indian Development Bank. It is disingenuous at best for defendants to take the position that they can remove these portions of the plan, under which the Special Trustee's timetable was created, and then be governed by the same timetable while doing substantially less work. Moreover, as discussed below, the Trust Fund Management Reform Act gives the Special Trustee very little authority, given the Secretary's ultimate power to render final decisions. To argue that Congress intended, by virtue of the chain of command, the Secretary of the Interior to have unbridled authority over his own timetable in the implementation of these reforms is untenable. Accordingly, the *46 court rejects Interior's timing argument on this point. Likewise, Interior's second argument, that any implied statutory deadline has not passed, also fails. The law is clear that although a statute may not explicitly provide a deadline for agency action, the APA itself imposes a statutory deadline of reasonableness. The APA provides this reasonableness deadline in two separate provisions. In 5 U.S.C. § 555(b), Congress provided that agencies must discharge their statutory duties "within a reasonable time"; correspondingly, Congress provided in 5 U.S.C. § 706(1) that courts "shall ... compel agency action unlawfully withheld or unreasonably delayed." Absent a precise statutory timetable or "other factors counseling expeditious action," an agency's control over its own timetable of statutory compliance is given "considerable deference." Sierra Club v. Gorsuch, 715 F.2d 653, 658 (D.C.Cir.1983). In determining whether a reasonable time for statutory compliance has passed, a court must assess and balance several factors. See In re International Chemical Workers Union, 958 F.2d 1144, 1149 (D.C.Cir.1992). First, the court must "ascertain the length of time that has elapsed since the agency came under a duty to act." Id. Second, the "unreasonableness of the delay must be judged in the context of the statute which authorizes the agency's action." Id. Third, the court must "examine the consequences of the agency's delay." Id. Fourth, the court must give "due consideration in the balance to `any plea of administrative error, administrative convenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources.'" Id. (quoting Cutler v. Hayes, 818 F.2d 879, 897 (D.C.Cir.1987)). Three "other factors" in this case require more expeditious agency action than might normally be required in the typical administrative law context. First, the nature of the IIM trust relationship means that plaintiffs are helplessly relying on the trustee. See Misplaced Trust, Pls.' Ex. 1, at 5 ("The Indian trust fund is more than balance sheets and accounting procedures. These moneys are crucial to the daily operations of native American tribes and a source of income to tens of thousands of native Americans."). Plaintiffs are some of the poorest people in the nation. As defendants have often stated, plaintiffs rely upon the IIM trust as their bank. "[C]lose scrutiny of administrative action is particularly appropriate when the interests at stake are not merely economic interests in a license or a rate structure, but personal interests of life and health." Wellford v. Ruckelshaus, 439 F.2d 598, 601 (D.C.Cir.1971). Second, as Interior admits, within the statutory contours of their fiduciary trust duties toward plaintiffs, the United States "has undertaken an obligation of the highest responsibility and trust." Defs.' FF/CL, at 134 (quoting Minnesota Chippewa Tribe v. United States, 14 Cl.Ct. 116, 129 (1987) (quoting Cheyenne-Arapaho Tribes v. United States, 206 Ct.Cl. 340, 512 F.2d 1390, 1392 (1975) (quoting Seneca Nation of Indians v. United States, 173 Ct.Cl. 917, 925 (1965)))). The government's conduct "should therefore be judged by the most exacting fiduciary standards." Seminole Nation, 316 U.S. at 297, 62 S.Ct. 1049. Third, the underlying purpose of giving "considerable deference" to an agency's own time line is diminished in this case. The Court of Appeals has noted that the source of this deference is the "agency's discretion to set its own priorities." Gorsuch, 715 F.2d at 658. Contrary to this threshold principle, however, the Trust Fund Management Reform Act was passed because Interior had abused the "considerable deference" that already had been given to it by Congress for over a century. With this context in mind, the court must now turn to an analysis of the four determinative "unreasonableness" factors in analyzing whether Interior's four *47 planning duties declared under the Trust Fund Management Reform Act are pastdue. First, no one can dispute the exceedingly great length of time that has passed since defendants came under the duty to properly manage the forcefully imposed trust over plaintiffs' lands and money. Interior's fiduciary duty to render an accounting cannot be judged as beginning in 1994 with the passage of the Trust Fund Management Reform Act, as defendant Babbitt recognized: Q: You recognize that there are trust responsibilities, I take it, which are— which predated and currently coexist with your statutory responsibilities. A: Yes. Q: An you would describe those as common law responsibilities. ... [A:] Now.... Well, when I was in law school, common law referred to matter derivative out of English law, and I would say, for the most, the case law—I would say derivative of judicial decisions. Q: All right. And there is a significant portion of the Trustee's responsibilities for Indians that are derived from case decisions. A: Oh, absolutely. Q: Now, you have referred to the fact that this problem of the failure to discharge fiduciary responsibilities didn't begin with you. It's been around for a long time; isn't that right? A: Yes. Trial Tr. at 3771-72. The most basic fiduciary duty imposed in a financial trust relationship must surely be the duty to render an accurate accounting. The court agrees that a century is, at best, a "long time" for plaintiffs to wait. Further, the delayed actions addressed today do not even address the ultimate accounting. Rather, today's decision focuses solely upon fundamental plans that must be created, as Congress foresaw, if an accurate accounting is ever to be rendered. Second, the context of the Trust Fund Management Reform Act, which mandates expeditious action, shows the unreasonableness of the delays in agency action discussed below. Again, the entire purpose of the Act, passed five years ago, was to force Interior to take these types of basic trust-fund-management actions. The Trust Fund Management Reform Act itself was Congress's judgment that Interior's actions had been unreasonably delayed too long. Third, the consequences of agency delay are great. The longer defendants delay in creating the plans necessary to render an accounting, the greater the chance that plaintiffs will never receive an actual accounting of their own trust money. For example, it is clear that the longer Interior waits to retrieve missing information, the less of that information will be available and able to be located. Interior cannot retrieve that missing information, as Congress foresaw, without creating a written plan for its retrieval. As time passes the risk increases that the only available (although not necessarily legally adequate) option for Interior will be a statistical sampling method. In that context, Interior's delayed planning causes the confidence level of any sampling technique to drop. In short, Interior's delayed action will cause irreparable injury to plaintiffs' right to receive an accounting and, ultimately, injury to their right to recover their own funds. The consequences of this irreparable injury are even clearer when put in the context of plaintiffs' reliance on income from the IIM trust and plaintiffs' treatment of the trust as their "bank." "[T]he interests at stake are not merely economic interests in a license or rate structure, but personal interests in life and health." Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1156 (D.C.Cir. 1983) (mandating that the Assistant Secretary of OSHA issue a notice of proposed rulemaking within thirty days of the date of decision, and quoting Wellford, 439 F.2d at 601). *48 Fourth, the court must give due consideration to Interior's excuses for why it has not taken the basic remedial steps discussed below to discharge its statutory duties. Interior offers two justifications. First, Interior constantly emphasizes that its success is dependent upon proper budgeting. This argument, as discussed below, seems disingenuous given the lack of requests for proper funding until the institution of this lawsuit. More importantly, however, claims of lack of funding cannot be allowed to legally impair the United States' trustee-delegates' exacting fiduciary duties toward management of this trust. As Chief Judge Arnold of the Court of Appeals for the Eighth Circuit has stated: [T]he government may not avoid its trust duties on the grounds that the budget and staff of the Department of Interior are inadequate. This circumstance may well excuse any delay on the part of individual employees of the [BIA]. But the United States may not evade the law simply by failing to appropriate enough money to comply with it. See Loudner v. United States, 108 F.3d 896, 903 n. 7 (8th Cir.1997); see also Forest Guardians, 174 F.3d at 1188 & n. 14 (holding that it would not accept defendant Babbitt's argument regarding unreasonable delay due to budgetary constraints in terms of breach of statutory duty but that, instead, "the agency defense of unavailable resources must be reserved as a defense against contempt if an injunction issues"). For these reasons, the court gives little weight to Interior's budgetary-constraints justification. Second, Interior constantly reminds the court that its discharge of its statutory duties cannot merely be obtained by "the stroke of a pen." Trial Tr. at 38. While the complexity of the tasks involved must be considered, certain basic mechanical functions, such as planning to retrieve missing documentation and properly staff the trust's management, are not the same types of issues usually considered to be complex in agency decision making. See, e.g., In re Monroe Communications Corp., 840 F.2d 942, 946 (D.C.Cir.1988) (refusing to issue mandamus against agency for delayed agency action because the action required the complex balancing of "policy and constitutional concerns" tied to obscenity law). Thus, while there is a kernel of truth in Interior's justifications concerning the effects of inadequate funding and issue complexity, in the context of the IIM trust these arguments do not warrant great weight. In sum, the court concludes that Interior's reasonable time to discharge the four specific fiduciary planning duties declared above has expired. Judged in the context of the exacting nature of defendants' fiduciary duties, the admitted "long" delay in discharging these duties, and the nature of plaintiffs' irreparable injuries, the court believes that this conclusion is inescapable. On the facts of this case, even five years would be an unreasonable amount of time to delay these five fundamental planning requirements. D. The Secretary of the Interior is Currently in Breach of Four Statutory Trust Duties that Warrant Prospective Relief 1. The Secretary of the Interior Has No Written Plan to Gather Missing Data Although Interior has established numerous high-level plans and has acquired and begun to implement effective new accounting and asset management systems, it currently has no final written statement of policies and procedures for recovering missing data—as opposed to data currently retained somewhere within the bowels of Interior but not yet processed—necessary to perform an accounting. Interior did present at trial Plaintiffs' Exhibit 238, which appears to be a draft document-cleanup plan, but that plan is neither finalized nor directed toward gathering missing information. See supra section II(E)(1). It is as though Interior believes that if the problem of missing documentation is ignored, it will simply go away or, at least, *49 be left for another administration to handle. Congress's purpose for placing this planning provision in the Trust Fund Management Reform Act, given the context of the Act's passage, was to prevent Interior from doing what it is now doing in this regard—delaying planning for the gathering of missing documentation necessary to render an accounting. Accordingly, because Interior has no such final plan, the court declares that Interior is currently in breach of this trust duty. 2. The Secretary of the Interior Has No Written Plan Addressing the Retention of IIM-Related Trust Documents Necessary to Render an Accounting Interior has no finalized plan concerning the destruction of IIM-related trust documents necessary to discharge the defendants' statutory duty to render an accurate accounting. No such plan has been provided to the court, and there is no such plan in the administrative record. Just as the refusal to gather missing documentation necessary to render an accurate accounting will irreparably harm plaintiffs, the destruction of such information will have the same effect. Therefore, Interior must create and finalize a document destruction schedule consistent with the principle of retaining documents necessary to render an accurate accounting to plaintiffs of their IIM trust money.[34] 3. The Secretary of the Interior Has No Written Architecture Plan The court has declared that the Trust Fund Management Reform Act placed upon Interior the duty to establish a written plan dealing with computer and business systems architecture. Contrary to this duty, however, Interior still has no such plan. It appears that Interior recognizes the value and importance of such a plan, because an architecture plan is currently being developed. See Pls.' Ex. 37, at 22 ("The Department [of the Interior] does recognize the importance of an overall architecture .... Preliminary work on a system architecture has started ... and the beginnings of our future architecture are underway."). Because Interior currently has no written architecture plan, however, the court declares that Interior is currently in breach of this trust obligation owed to plaintiffs. 4. The Secretary of the Interior Has No Written Plan Addressing the Staffing of Interior's Trust Management Functions The court has declared that the Trust Fund Management Reform Act requires Interior to establish a written plan for the staffing of IIM trust management functions. Contrary to this duty, however, Interior currently has no such plan. Interior has only established a written plan for the training of trust management employees. Training alone is simply one component of an adequate human resources analysis. Trial Tr. at 4457. A training plan does not address any of the concerns discussed above. See supra section V(B)(2). Additionally, there is an independent body currently performing a review of BIA staffing, but that review has not been finished, has not been transformed into any kind of staffing plan, and (presumably) will not address the changing staffing needs under the recently developed HLIP. Because Interior currently has no staffing plan as required, the court declares that Interior is currently in breach of this trust duty owed to plaintiffs. VI. Declaratory Judgment—The Secretary of the Treasury A. The Secretary of the Treasury's Duty to Retain IIM-Related Trust Documents that are Necessary for the Rendition of an Accounting For the same reasons applicable to Interior, Treasury bears the fiduciary obligation *50 to retain all IIM-related trust documents that are necessary for the rendition of an accurate accounting of plaintiffs' IIM trust money. The court will not re-state in full the basis for this requirement. In short, through the Trust Fund Management Reform Act, Congress codified the United States' duty to render an accurate accounting of the IIM trust. See supra Parts IV-V. A necessary derivative of this requirement is that documents necessary to render an accounting be retained. See supra section V(B)(2). As both defendants admit, the United States is ultimately the trustee of the IIM trust. To discharge the United States' trust duties, Congress must delegate certain functions to the agencies. Although Congress has delegated a majority of the United States' trust management functions to Interior, it has also given Treasury certain trust responsibilities. For example, Treasury plays an important role in the holding and investing of plaintiffs' trust money. See 25 U.S.C. § 161a(b). To the extent that Treasury is involved in the IIM trust it is by the mandate of Congress, the settlor of the IIM trust, which ultimately establishes the contours of the United States' (and its delegates') fiduciary duties. See Mitchell II, 463 U.S. at 224, 103 S.Ct. 2961. To the extent that Congress has placed duties upon Treasury, the function of those duties is to discharge the United States' fiduciary obligations. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 225 (1982) ("Since the trust obligations are binding on the United States, these standards of conduct would seem to govern all executive departments that may deal with Indians, not just those such as the Bureau of Indian Affairs which have special statutory responsibilities for Indians affairs."). Consistent with Treasury's role as a trustee of the IIM trust for certain statutorily based functions, and in light of the common-law duty for a trustee to retain trust documents necessary to protect the beneficiaries' rights under the trust relationship, the statutory scheme at issue leads to the conclusion that Treasury, like Interior, must retain trust documents necessary to render an accurate accounting to plaintiffs of all IIM trust money. B. The Secretary of the Treasury Has Breached His Fiduciary Duty to Retain IIM-Related Trust Documents and Has No Remedial Plan to Address This Breach of Duty Treasury has admitted that it has treated IIM trust material the same as general records by destroying them after their age exceeded six years and seven months, without regard to the fact that the United States (through its trustee-delegates) has not rendered an accounting of plaintiffs' IIM trust money.[35] This policy is a breach of plaintiffs' right to have retained the documents necessary to allow the United States to render an accounting. As discussed above, Treasury has stipulated that it will consult with Interior to identify IIM-related trust documents "maintained or created" by Treasury "necessary to meet the government's trust obligations" and that, after this consultation, Treasury will submit a proposed revised document destruction schedule to the Archivist of the United States. Stipulation of Department of Treasury, filed July 6, 1999, at 2. Until that time, Treasury has agreed, to plaintiffs' satisfaction, to preserve certain enumerated categories of IIM-related trust documents. See Stipulated Order of Aug. 12, 1999 (regarding Treasury Department IIM-related trust records). The dispute then is limited to post-trial destruction. The destruction of IIM-related trust documents necessary to render an accurate accounting would violate plaintiffs' trust right to the preservation of these *51 documents. See supra Parts V-VI. Because Treasury has no current post-trial schedule for the retention of necessary IIM-related trust documents that it has created or that it maintains, the court will direct Treasury, after it consults with Interior as provided in the stipulation, to create a comprehensive document retention plan that deals with IIM-related trust documents. Such a plan has already been created for the purposes of this litigation in negotiations between plaintiffs and Treasury. It may very well be that the agreement reached in that instance would satisfactorily discharge Treasury's duty to retain these documents beyond this litigation. The court will, however, leave that to Treasury to decide in the first instance. VII. Plaintiffs' Obstruction Claims Defendants correctly point out that plaintiffs have all but withdrawn their claims for "obstruction" of the discharge of the Special Trustee's duties by defendant Babbitt's meager funding requests and reorganization of OST. In their proposed findings of fact and conclusions of law, plaintiffs do not even propose a conclusion of law that would grant them relief were such claims of obstruction proved. Plaintiffs' obstruction allegations appear to have been shifted toward an argument for this court to appoint an independent special master over the management of the IIM trust and away from bases for independent causes of action. In his closing, plaintiffs' counsel compared Interior's historic unfulfilled promises to fix the IIM trust system to the situation where, in the Peanuts cartoon, Lucy would repeatedly promise to let Charlie Brown kick the football but, contrary to her earlier promise, just as often move the football immediately before Charlie Brown could kick it. Trial Tr. at 5065. In this context, plaintiffs stated that "[t]he important point now is not whether there was some actionable interference with the Special Trustee, but rather the bearing [Interior's] behavior towards the Special Trustee has upon the extent to which we can be sure that that football doesn't get moved away." Trial Tr. at 5065. Thus, even plaintiffs appear to concede that they have not proved actionable claims of interference. To the extent that plaintiffs have not withdrawn these obstruction claims, the court agrees that these claims must be denied. First, plaintiffs' budget-request claim fails. Although Interior never requested funding in an amount that would have promptly brought defendants into compliance with the statutory mandates of the Trust Fund Management Reform Act and allowed the Special Trustee to discharge his duties, Interior has persuasively shown that a combination of OMB budget cuts and the era of budget cutbacks undoubtedly guided, at least in part, Interior's budget requests at that time. While defendants' meager funding requests may be relevant to this court's ultimate decision on the proper remedy in this case, they do not in and of themselves prove action contrary to law. Of course, the ultimate effects of these funding requests have been and will be reviewed in the results that defendants achieve. Again, defendants may not evade their trust responsibilities on the grounds that their budget and staffing is inadequate. See Loudner, 108 F.3d 896, 903 n. 7. Similarly, the court will deny plaintiffs' claim of obstruction as to defendant Babbitt's reorganization of OST because plaintiffs appear to have withdrawn this claim as an independent action, they have not proposed any prospective remedy as a result of any such obstruction, and they have not otherwise proved that defendant Babbitt took any action contrary to law. The court agrees with plaintiffs that defendant Babbitt's decision, without any input from or notice to the Special Trustee, to alter the chain of command between the Special Trustee and his own employees and transfer one of the Special Trustee's Senior Executive Service Special Assistants frustrated the legislative intent of some key figures behind the passage of the Trust *52 Fund Management Reform Act. There is no question that the creation of OST, as a general matter, was intended to place a more independent bureau within Interior in order to get results that had not been received under the sole reign of BIA and former Secretaries of the Interior. The way in which defendant Babbitt's decision was made has now relegated the OST to just another of Interior's bureaus, largely stripped of any independence that it may have had with regard to the IIM trust. Nonetheless, the court cannot say that defendant Babbitt's poor decision was contrary to law. Despite the best intentions of some lawmakers, the text of the statute they enacted said in no uncertain terms that "the Special Trustee ... shall report ... to the Secretary." 25 U.S.C. § 4042. If Congress truly wanted a completely independent trustee to oversee trust management, entirely independent from the well-documented historic recalcitrance of Interior, then Congress surely would have explicitly restricted the Secretary's powers over the Special Trustee and his office. To the contrary, defendant Babbitt correctly claims that his decision was lawful given the powers vested in him by a combination of the Reorganization Plan No. 3 of 1950 and 5 U.S.C. § 903. In 5 U.S.C. § 903, Congress empowered the President to "prepare a reorganization plan specifying the reorganizations he finds are necessary." 5 U.S.C. § 903. Specifically, this statute allows the President to create a plan that provides for "the authorization of an officer to delegate any of his functions." Id. § 903(a)(5). In the President's Reorganization Plan No. 3 of 1950, the Secretary of the Interior was transferred "all functions of all agencies and employees of [his] Department," with the exception of two powers not applicable to this case. Reorganization Plan of 1950 § 1, 5 U.S.C.App. 1. In the same Act, the President authorized the Secretary to "made such provisions as he shall deem appropriate authorizing the performance by any other officer, or by any agency or employee, of the Department of the Interior of any function of the Secretary, including any function transferred to the Secretary by the provisions of this reorganization plan," and to "effect such transfers within the Department of the Interior of any ... personnel ... as he may deem necessary in order to carry out the provisions of this reorganization plan." Reorganization Plan of 1950 §§ 2 & 3, 5 U.S.C.App. 1. In short, given the broad authority given to the Secretary of the Interior to organize his department as he wishes, the lack of any mention in the Trust Fund Management Reform Act as to limiting the Secretary's broad powers in this respect, and the Trust Fund Management Reform Act's provision that the Special Trustee must report to the Secretary, the court will deny plaintiffs' claim of unlawful obstruction of the Special Trustee's duties through the Secretary's reorganization of OST. Defendant Babbitt's decisionmaking process was poor given OST's independent purpose; his decision and the way it was made were not, however, contrary to law. VIII. Remedy One of plaintiffs' primary goals in the prospective component of this litigation is to have the IIM trust put under court supervision. Plaintiffs' requests range from receivership to a Special Monitor with investigatory powers. The government, on the other hand, takes the position that it is not in breach of any trust duties and, even if it is, there is already sufficient supervision of the IIM trust to warrant the court's denial of all continuing supervision requests. The court has the authority to appoint a Special Master or a monitor to oversee defendants' discharge of their statutory duties. In addition to its inherent equitable powers, the court is granted this authority by Rule 53 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1651(a), the All Writs Act. Under Rule 53, the court could appoint a special master upon a finding of "exceptional circumstances" *53 warranting such an appointment. FED. R. CIV. P. 53; see also Organization for Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 542 (9th Cir.1987). Under the All Writs Act, this court "may issue all writs necessary or appropriate in aid of [its] respective jurisdiction[] and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The court has rejected defendants' position that they have breached no trust duties. Defendants' position that the court should simply allow them to carry out their duties under the same supervision that has brought them to this point cannot prevail. As summarized in this court's Memorandum Opinion of June 7, 1999 and in the seminal congressional report on IIM trust mismanagement, Misplaced Trust, defendants have been told by Congress and begged by plaintiffs for decades to correct the errors stemming from defendants' century-long reign of mismanagement. See Misplaced Trust, Pls.' Ex. 1, at 15-27 (detailing Interior's consistent "failure to comply with congressional directives"). Despite congressional, GAO, Inspector General, and independent agency reports heavily criticizing almost every aspect of IIM trust management, defendants are now, for the first time, beginning to comply with many of their fiduciary duties. See, e.g., Pls.' Ex. 1, at 214: ("Mr. Chairman, I certainly don't need to outline for you [and] Members of this Subcommittee the long and sorry history of the Department's mismanagement of the Indian Trust Funds. These problems existed before we were born.") (Statement of Secretary Babbitt). This "long and sorry" record of recalcitrance, to use defendant Babbitt's own words, is something that defendants do not even pretend to dispute, as seen by the testimony at trial of Secretary Babbitt: Q: Now, you have referred to the fact that this problem of the failure to discharge fiduciary responsibilities didn't begin with you. It's been around for a long time; isn't that right? A: Yes. Q: And based on your study or investigation into this, are you aware that for decades there have been dozens of government reports, congressional hearings and findings, IG reports, GAO reports and others, that have criticized Department of Interior's management of its trust responsibilities; are you aware of that? A: Yes Q: And that they have repeatedly recommended solutions or proposals to solve this problem; are you aware of that? A: I am. Q: And are you also aware of the fact, Mr. Babbitt, that few, if any, of these proposals have ever been implemented, which is why you've got the problem you're dealing with today; isn't that true? A: I would only add that there have been some proposals that were put forth and implemented, but by and large, not many, and the problems certainly continued to accumulate. Trial Tr. at 3772-73. Defendants' cry of "trust us" is offensive to the court and insulting to plaintiffs, who have heard that same message for over one hundred years. While plaintiffs chose to analogize defendants' allocution to Lucy pulling away the football from Charlie Brown, the court wonders if the tale of The Little Boy Who Cried Wolf would not have been more appropriate—when the same insincere statement is made time and again, the sincere statement is nearly impossible to discern and impossible to rely upon. Despite their frustrations, however, plaintiffs must remember that they have brought a lawsuit. As in all cases, the judicial branch must consider not only the parties' rights and correlative obligations, but also constitutional concerns such as separation of powers. As the Supreme Court has stated: *54 [Aggrieved parties] cannot seek wholesale improvement of [a] program by court decree, rather than in the offices of the Department [of the Interior] or the halls of Congress, where programmatic improvements are normally made. Lujan v. National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (emphasis in original). The court cannot simply take over the role of the agency or bring all actions of defendants under its authority. Courts cannot "become ... enmeshed in the minutiae" of agency administration. Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Courts generally have become involved in administrative programs in the way plaintiffs request only in the case of constitutional or quasi-constitutional violations (i.e., Title VII or 42 U.S.C. § 1983 cases) or in order to enforce a court order in the case of contempt. See Local 28 of Sheet Metal Workers Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344(1986) (upholding the appointment of a Special Master "in light of the difficulties inherent in monitoring compliance with the court's orders, and especially petitioners' established record of resistance to prior state and federal court orders designed to end their discriminatory membership practices."); Mullen, 828 F.2d at 546 (upholding the appointment of a Special Master to protect Fourth Amendment rights in an action brought under 42 U.S.C. § 1983); Gary W. v. State of Louisiana, 601 F.2d 240, 244-45 (5th Cir.1979) (upholding the appointment of a Special Master when defendants had failed to come into compliance with judicial order for a period of four years). On the other hand, defendants have the type of historical record of recalcitrance that troubles the court. The court is aware that defendants, especially Interior, has made promises similar to those relied upon today each time that it has come up for review on the IIM trust. Indeed, these broken promises are what necessitated the passage of the Trust Fund Management Reform Act. Promises made in court, however, are different than the puffing to Congress that Interior has done over the past few decades. The court can ensure that these promises are kept, and it has the contempt power that will allow it to do so when appropriate. Despite defendants' history, the court has decided to give defendants one last opportunity to carry through on their promises. The HLIP, defendants' most comprehensive plan to eventually bring themselves into compliance with their duty to render an accurate accounting, is a substantial step in the right direction, as even plaintiffs admit. This time, there is substance to support defendants' promises. The court feels that it is therefore its constitutional duty to allow defendants the opportunity to cure the breaches of trust declared in this Memorandum Opinion. Given separation of powers concerns, the court will deny for the time being plaintiffs' request to appoint a receiver or Special Master over the IIM trust. Should the court find in the future upon proper motion by plaintiffs that defendants have been less than truthful in their representations or that defendants' adherence to prompt remedial action turns out to have been feigned, then the court may well decide to exercise its authority to ensure that its orders are carried out. For the time being, the court will give the government, perhaps for the last time in this case, the benefit of the doubt. The court will declare the statutorily based trust rights of plaintiffs under the IIM trust as described above, declare that defendants have breached their trust duties in certain specific respects that warrant prospective relief, and remand the administrative record to the Department of the Interior and the Department of the Treasury for further proceedings not inconsistent with this Memorandum Opinion.[36] Further, to ensure that these steps *55 are taken promptly, and to ensure that the other various actions that defendants have represented would be taken are in fact taken, the court will assert continuing jurisdiction over this case. Through this mechanism, the court can ensure defendants' future compliance with their trust duties under the Trust Fund Management Reform Act "without having to speculate over the possibility of further agency delays." In re Center for Auto Safety, 793 F.2d 1346, 1354 (D.C.Cir.1986). Moreover, the court will not be unduly intruding into the role of the Executive branch. The court emphasizes, however, that it would not be an abuse of discretion to appoint a Special Master or Monitor to closely check defendants' progress toward bringing themselves into compliance with their trust duties. After all, defendants have shown their historic inability to keep their promises with regard to trust management reform and their unwillingness to comply with court orders. Defendants have already been cited for civil contempt of court in this case for the failure to obtain and produce relevant trust documents, an obligation which has been declared today as a permanent trust duty under the Trust Fund Management Reform Act. That failure to abide by court decree, which the court has characterized as the most egregious governmental misconduct that it has ever seen, has already led to the appointment of a Special Master to monitor compliance with defendants' discovery duties. Defendants are but one step away from earning more involved court oversight over the IIM trust, such as another Special Master or Monitor, should they fail to live up to their own representations or fail to abide by the court's order issued this date. Nevertheless, it is apparent to the court that the contempt trial and the court's sanctions have had a salutary effect on the defendants. Indeed, both Secretary Babbitt and Assistant Secretary Gover testified about the current unique opportunity for defendants to bring themselves into compliance with their trust duties, given the added involvement of the court. Trial Tr. at 3756 ("There's no denying that the involvement of this Court has helped this process, and I acknowledge that.") (Statement of Secretary Babbitt); 3806 ("This ship has been through a lot of storms already, it's had the sails ripped off the riggings and we've put them back on. And it's been off course, and we've steered it back with a lot of help from lots of people, including this Court, and we are proceeding toward that safe harbor and it is my considered judgment that there is in these kinds of things a kind of critical momentum—there's a—there's a point at which you have finally invested enough money, enough people, enough of a stake from the Congress, from all three branches of government that it—that the probabilities of making it into that harbor are really quite predictable.") (Statement of Secretary Babbitt); 3806 ("At the kind of stage this project is at, with the investment, the [c]ongressional attention, the rise of effective lobbies in Indian country, the life tenure of Federal judges ... this one's going into a safe harbor.") (Statement of Secretary Babbitt); 1156 ("The [BIA] is under a lot of pressure to make this happen. The [BIA] is under pressure from the Congress. The [BIA] is under pressure from my boss, the Secretary, and from OMB and from this Court, and what we have is—for the first time that I am aware of, you have all three branches of Government actually joined in an objective, and that is what creates a unique opportunity. There is no opposition to movement forward on [IIM trust management reform] of which I am aware, and so it is *56 unique and I don't know that we'll have this opportunity again.") (Statement of Assistant Secretary Gover). Moreover, defendants legitimately point out that more intrusive court involvement may lead to conflicting directions and thereby create a drag on defendants' discharge of their duties. See Trial Tr. at 3756 ("Well, I will be totally honest. There's no denying that the involvement of this Court has helped this process, and I acknowledge that. I'm a little concerned, like Tommy Thompson [, the Acting Special Trustee], about too many injunctions out against the employees. The reason is that they're good people, but they get scared to death to the point that they don't do anything unless there's a lawyer by their side.") (Statement of Secretary Babbitt). In short, although the court believes that it would be acting within its discretion to appoint a monitor at this time, the court concludes that it should stay its hand for the time being and give defendants one final opportunity to prove that this time they truly mean what they say and that they will act in accordance with their own representations and the court's order issued this date. Should defendants fail, the court will still have continuing jurisdiction over the matter and can take any action necessary to force defendants to comply with their representations and the court's order. Defendants, at several points during the trial, candidly recognized that because of the lifetime tenure of federal judges, the court is the one branch of government that can successfully ensure that trust reform is carried out, should the other two branches of government fail to work together cooperatively to carry out this effort. See, e.g., Trial Tr. at 3806 (Statement of Secretary Babbitt). This court intends to be diligent in its effort to ensure that trust reform is successfully completed but to exercise its power judicially and with appropriate deference and respect for the other two branches of government. In light of these conclusions, and to ensure that defendants diligently take steps to bring themselves into compliance with their statutory trust duties, the court will retain continuing jurisdiction over this matter for a period of five years, subject to any motion for enlargement of time that may be made, and will order as follows: 1. Beginning March 1, 2000, defendants shall file with the court and serve upon plaintiffs quarterly status reports setting forth and explaining the steps that defendants have taken to rectify the breaches of trust declared today and to bring themselves into compliance with their statutory trust duties embodied in the Indian Trust Fund Management Reform Act of 1994 and other applicable statutes and regulations governing the IIM trust. 2. Each quarterly report shall be limited, to the greatest extent practical, to actions taken since the issuance of the preceding quarterly report. Defendants' first quarterly report, due March 1, 2000, shall encompass actions taken since June 10, 1999. 3. Defendants Secretary of the Interior and Assistant Secretary of the Interior— Indian Affairs shall file with the court and serve upon plaintiffs the revised or amended High Level Implementation Plan. The revised or amended HLIP shall be filed and served upon completion but no later than March 1, 2000. 4. Defendants shall provide any additional information required by the court to explain or supplement defendants' submissions. Plaintiffs may petition the court to order defendants to provide further information as needed if such information cannot be obtained through informal requests directly to defendants. 5. The court will deny plaintiffs' requests for prospective relief that have not already been granted by the corresponding order. The court has based much of its decision today—especially the denial of more extensive prospective relief—on defendants' *57 plans (in both substance and timing) to bring themselves into compliance with their trust duties, both declared and provided for explicitly by statute. These plans have been represented to the court primarily through the HLIP, but also through the representations made by government witnesses and government counsel. Given the court's reliance on these representations, the court will order defendants, as part of their quarterly status reports, to explain any changes made to the HLIP or to its implementation. Should plaintiffs believe that they are entitled to further prospective relief based upon information contained in these reports or otherwise learned, they may so move at the appropriate juncture. Such a motion will then trigger this court's power of judicial review. IX. Certification of Order for Interlocutory Appeal 28 U.S.C. § 1292(b) provides the court with the authority to certify for interlocutory appeal today's order: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. 28 U.S.C. § 1292(b). Much of the relief granted today may be injunctive in nature and therefore "otherwise appealable" for the purposes of 28 U.S.C. § 1292(b). See id. § 1292(a)(1) (providing that an order granting or denying a request for an injunction is immediately appealable). However, the court's order also involves other matters that may not be immediately appealable by both sides, such as the declaratory relief and the court's remand of the administrative record to the agencies. To the extent that the court's order is not "otherwise appealable," the order will be certified for interlocutory appeal. The court will find that it is of the opinion that this order involves controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of this litigation. Other proceedings in this matter shall not be stayed during the pendency of any interlocutory appeal that is taken. X. Conclusion Although plaintiffs may be dissatisfied with the court's decision to not appoint another Special Master or Monitor at this time, plaintiffs should take great satisfaction in the stunning victory that they have achieved today on behalf of the 300,000-plus Indian beneficiaries of the IIM trust. Plaintiffs have established their entitlement to ongoing judicial review of trust reform efforts for the next five years—or longer if necessary—and a role for their own continued, close involvement in reform efforts. That is enough for today. If more becomes necessary, the court will be available. If the defendants carry out what they now say that they will do and comply with the court's order issued this date, more should not be necessary. In that case, trust reform should become a reality rather than a dream. ORDER For the reasons stated in the court's corresponding Memorandum Opinion issued *58 this date, the court HEREBY ORDERS as follows: I. Dismissal of Certain Claims 1. Plaintiffs' common-law claims are HEREBY DISMISSED with prejudice. 2. Plaintiffs' claims for obstruction or interference with the Special Trustee are HEREBY DISMISSED with prejudice. II. Declaratory Judgment Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Administrative Procedure Act, 5 U.S.C. §§ 702 & 706, the court HEREBY DECLARES that: 1. The Indian Trust Fund Management Reform Act, 25 U.S.C. §§ 162a et seq. & 4011 et seq., requires defendants to provide plaintiffs an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs, without regard to when the funds were deposited. 2. The Indian Trust Fund Management Reform Act, 25 U.S.C. §§ 162a et seq. & 4011 et seq., requires defendants to retrieve and retain all information concerning the IIM trust that is necessary to render an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs. 3. To the extent that prospective relief is warranted in this case and to the extent that the issues are in controversy, it has been shown that defendant Bruce Babbitt, Secretary of the Interior, and defendant Kevin Gover, Assistant Secretary of the Interior, owe plaintiffs, pursuant to the statutes and regulations governing the management of the IIM trust, the statutory trust duty to: (a) establish written policies and procedures for collecting from outside sources missing information necessary to render an accurate accounting of the IIM trust; (b) establish written policies and procedures for the retention of IIM-related trust documents necessary to render an accurate accounting of the IIM trust; (c) establish written policies and procedures for computer and business systems architecture necessary to render an accurate accounting of the IIM trust; and (d) establish written policies and procedures for the staffing of trust management functions necessary to render an accurate accounting of the IIM trust. 4. To the extent that prospective relief is warranted in this case and to the extent that the issues are in controversy, it has been shown that defendant Lawrence Summers, Secretary of the Treasury, owes plaintiffs, pursuant to the statutes and regulations governing the management of the IIM trust, the statutory trust duty to retain IIM trust documents that are necessary to render an accurate accounting of all money in the IIM trust held in trust for the benefit of plaintiffs. 5. Defendants are currently in breach of the statutory trust duties declared in subparagraphs II(2)-(4). 6. Defendants have no written plans to bring themselves into compliance with the duties declared in subparagraphs II(2)-(4). 7. Defendants must promptly come into compliance by establishing written policies and procedures not inconsistent with the court's Memorandum Opinion that rectify the breaches of trust declared in subparagraphs II(2)-(4). 8. To allow defendants the opportunity to promptly come into compliance through the establishment of the appropriate written policies and procedures, the court HEREBY REMANDS the required actions to defendants for further proceedings not inconsistent with the court's Memorandum Opinion issued this date. III. Continuing Jurisdiction and Further Proceedings To ensure that defendants are diligently taking steps to rectify the continuing breaches of trust declared today and to ensure that defendants take the other actions represented to the court upon which the court bases its decision today, the *59 court will retain continuing jurisdiction over this matter for a period of five years, subject to any motion for an enlargement of time that may be made. Accordingly, the court ORDERS that: 1. Beginning March 1, 2000, defendants shall file with the court and serve upon plaintiffs quarterly status reports setting forth and explaining the steps that defendants have taken to rectify the breaches of trust declared today and to bring themselves into compliance with their statutory trust duties embodied in the Indian Trust Fund Management Reform Act of 1994 and other applicable statutes and regulations governing the IIM trust. 2. Each quarterly report shall be limited, to the extent practical, to actions taken since the issuance of the preceding quarterly report. Defendants' first quarterly report, due March 1, 2000, shall encompass actions taken since June 10, 1999. 3. Defendants Secretary of the Interior and Assistant Secretary of the Interior— Indian Affairs shall file with the court and serve upon plaintiffs the revised or amended High Level Implementation Plan. The revised or amended HLIP shall be filed and served upon completion but no later than March 1, 2000. 4. Defendants shall provide any additional information requested by the court to explain or supplement defendants' submissions. Plaintiffs may petition the court to order defendants to provide further information as needed if such information cannot be obtained through informal requests directly to defendants. 5. The court DENIES plaintiffs' requests for prospective relief that have not already been granted by this order. The court has based much of its decision today—especially the denial of more extensive prospective relief—on defendants' plans (in both substance and timing) to bring themselves into compliance with their trust duties declared today and provided for explicitly by statute. These plans have been represented to the court primarily through the High Level Implementation Plan, but also through the representations made by government witnesses and government counsel. Given the court's reliance on these representations, the court ORDERS defendants, as part of their quarterly status reports, to explain any changes made to the HLIP. Should plaintiffs believe that they are entitled to further prospective relief based upon information contained in these reports or otherwise learned, they may so move at the appropriate juncture. Such a motion will then trigger this court's power of judicial review. IV. Certification of Order for Interlocutory Appeal For the reasons stated in the court's accompanying Memorandum Opinion, and pursuant to 28 U.S.C. § 1292(a)(4), the court HEREBY FINDS that it is of the opinion that this order involves controlling questions of law as to which there is substantial ground for difference of opinion. An immediate appeal of the court's order may materially advance the ultimate termination of the litigation. Accordingly, the court HEREBY CERTIFIES this order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Further proceedings in this case shall not be stayed during the pendency of any interlocutory appeal that may be taken. SO ORDERED. MEMORANDUM AND ORDER Plaintiffs have advised this court that they have decided that the mediation ordered by this court on October 14, 1999, has no hope of success. Accordingly, that mediation is hereby terminated. The stay of issuance of the court's Memorandum Opinion regarding the trial that concluded in July 1999, is hereby VACATED. All other provisions (including the requirements of confidentiality) of the October 14, 1999, order shall remain in full force and effect. *60 Plaintiffs, on December 10, 1999, filed a motion to reopen the Trial record to file the Special Master's Report of December 3, 1999, and to take discovery into the matters raised in the Special Master's Report, regarding late notification of the destruction of 162 boxes of potentially relevant Treasury Department files. The court finds that the new evidence plaintiffs seek to add is essentially cumulative, and the relevant points arising from such evidence have been adequately considered by the court and are adequately set forth in the trial record. This new evidence will not affect the outcome of the trial—which this court can easily determine since this was a bench trial—and there is simply no reason for another delay of weeks—or likely months for preparation of a Supplemental Report and comments thereon by all interested persons, and responses thereto—before this court moves on to the next phase of this litigation. Accordingly, plaintiffs' motion is DENIED. In denying plaintiffs' motion, this court intends in no way to denigrate its view of the government's misconduct regarding the 162 boxes incident, as noted in the court's December 6, 1999, order placing the Special Master's Report on the public record. Nevertheless, this court has ample power to deal with such misconduct, as this court has demonstrated in the past, and to hold accountable those individuals and agencies who are responsible for the misconduct. All of that has been fully taken into account in today's ruling on the trial, since the basic contours of the misconduct were all known at the time of the trial and the new Special Master Report simply adds cumulative information. SO ORDERED. A separate order shall issue this date. NOTES [1] The background and history of this lawsuit have been discussed at length in four previous opinions in this case. See Cobell v. Babbitt, 188 F.R.D. 122 (D.D.C. Aug.10, 1999) (assessing reasonable attorneys' fees against defendants for civil contempt of court); Cobell v. Babbitt, 52 F.Supp.2d 11 (D.D.C. June 7, 1999) (denying defendants' motions for summary judgment); Cobell v. Babbitt, 37 F.Supp.2d 6 (D.D.C.1999) (finding defendants Babbitt, Rubin, and Gover in civil contempt of court for failure to comply with court orders); Cobell v. Babbitt, 30 F.Supp.2d 24 (D.D.C.1998) (granting in part and denying in part, inter alia, defendants' motions to dismiss). [2] BIA was originally named the "Office of Indian Affairs" and was placed in the United States' Department of War. [3] Other methods of income collection include the use of paper lockboxes and electronic lockboxes. Trial Tr. at 2216-20. [4] In addition to income from allotted lands, the IIM trust accounts may sometimes hold per capita payments from judgments or funds from other special legislation. Trial Tr. at 114. [5] The IIM trust system at one time also included special deposit accounts that arose from the Indian Monies Proceeds of Labor (IMPL) accounts. The interest on IMPL accounts was deposited into special deposit accounts when the principal was disbursed to the individual Indians. Trial Tr. at 485-86. The IMPL accounts were abolished in the early 1980s. Trial Tr. at 610. [6] A supervised account is one that has a hold on disbursements for various reasons: an account holder who is a minor or non compos mentis, a court order, a tribal credit hold, or another hold. Trial Tr. at 1251-52. [7] Individuals with account balances below the threshold balance can still obtain their funds but must present themselves in person to a BIA or OTFM office and present proof of identity or send a notarized request by mail. Trial Tr. at 1252; 1674. [8] There is an approximate $42 million overdraft in interest payments made out of this investment account to beneficiaries due to defendants' poor record keeping and management practices. Trial Tr. at 150. This means that some beneficiaries have received a windfall, while other beneficiaries have not had the benefit of the interest from the money that should have been invested for their benefit (since it is a common fund). Trial Tr. at 150. The $42 million figure was a reduction from approximately $80 million in the early 1990s. [9] Interior also has authority to withdraw the funds from the IIM account and invest them with commercial entities. 25 U.S.C. § 162a. Interior invests through Bankers Trust. Trial Tr. at 3380. [10] In 1998, some specific examples of vital information deficiencies included: (1) over 5,500 IIM trust accounts in existence for "minors" that have actually reached the age of majority; (2) over 46,000 IIM trust accounts without current addresses for the beneficiary; (3) over 123,000 IIM trust accounts lacking a Social Security number or tax identification number. See Defs.' Ex. 45, at 10. [11] The "legacy" systems, LRIS and IRMS, are the systems in operation today. See infra subpart III(E). [12] In connection with records management, in a separate project, Interior is consolidating in Albuquerque all of the financial information it has relating to the IIM trust account transactions. Trial Tr. at 1262-63. These documents are needed to perform the accounting. [13] An inactive account is one that was closed prior to January 1, 1996. Accounts that have been closed since January 1, 1996 are maintained on the system. The files relating to inactive accounts are boxed, inventoried, and sent to the document center maintained by the Office of Trust Litigation Support and Records. Trial Tr. at 1265-66. Since January 1, 1996, accounts have been coded as closed when they have a zero balance, such as when all funds were disbursed when a minor came of age or an account holder died and the probate was settled. In addition, if there is no income coming into a small account, OTFM will attempt to close the account and distribute the proceeds so that the account can be coded as closed. [14] These fractionated interests arose out of the history of the allotments. The original allotments were generally made about one-hundred years ago, and virtually all of the original allottees died intestate, resulting in a distribution of interests in the allotment among all the decedents' children. This process has continued for nearly seven generations, resulting in numerous owners of some of these allotments. Trial Tr. at 973-76. As a result of this fractionalization, the average land allotment has forty or more owners, complicating both asset and financial trust management. The fractionated interests are further complicated by allotments leaving trust status by virtue of non-Indians ownership. Most tribes have blood quantum requirements. For instance, the Pawnee Tribe of Oklahoma requires that an individual be one-quarter or more Pawnee blood in order to be a member of the tribe. If an individual Pawnee is one-quarter and his or her spouse is not Indian, then their children will be one-eighth Pawnee and therefore not members of the Pawnee Tribe. At that point, when the children inherit the allotment, the land comes out of trust because the United States only has a trust responsibility to Indians. Trial Tr. at 978-79. Congress has twice tried to address the problem of fractionated interests, but both statutes were held to be unconstitutional. See Babbitt v. Youpee, 519 U.S. 234, 117 S.Ct. 727, 136 L.Ed.2d 696 (1997); Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987). BIA carried out the escheat provision for several years before the Youpee decision, and a large number of interests were probated and escheated to the tribes under the Indian Land Consolidation Act. When the Supreme Court struck down that Act, Interior had to decide whether it would give Youpee retroactive application. As a matter of policy, after Mr. Gover joined Interior, BIA decided that it should try to re-open the probates and, where the tribe was willing, give the money previously paid to the tribes from escheated back to the rightful heirs. Trial Tr. at 981-82. However, BIA does not have the authority to force the tribes to return the money. Trial Tr. at 982. In all, there are 80,000 interests affected by Youpee, all of them very small. Trial Tr. at 982. [15] As with many positive steps taken by defendants toward bringing themselves into compliance with the law, the approval of Rossman's records management plan did not come easily. The frustration arising from departmental in-fighting is described best in Rossman's own words in an e-mail he sent to the Acting Special Trustee: I've grown increasingly frustrated with the negotiations over records management as a result of my recommendations. I was brought to Interior ... to provide an approach to records management from a professional's point of view. I believe I produced a thoughtful, well-integrated product that responded in large part not only to the HLIP Sub-project, but also to the Special Trustee's strategic plan and various other external critics .... Now, I find that the key recommendation—line responsibility for Indian affairs records in the hands of a competent records manager with corporate records experience—is being watered down to the point of, in my opinion, destroying the whole. Who will be accountable for and actually carry out the recommendations if everything is "joint" or "in cooperation with"? ... Face it, there is no BIA Records Management Program. There are a few people with no plans, no agency direction, and no budget .... [D]on't compromise the basic integrity of making someone accountable for getting the job done. Pls.' Ex. 104. The opposition to which Rossman alluded was primarily coming from BIA. BIA wanted the records management post to be housed within BIA, not OST. Trial Tr. at 3023. Luckily, to resolve the months of grid-lock on this important issue, the Acting Special Trustee, Tommy Thompson, went directly to the Secretary and secured the Secretary's approval for the passage of Rossman's records management plan. Trial Tr. at 3023. While approval of Rossman's plan is a positive step, and Rossman, Thompson, and the Secretary all deserve credit for its passage, the gridlock associated with the approval serves as an example of just how difficult making positive change can be within the Interior environment, which has undoubtedly been one of the causes of defendants' inability to properly manage the IIM trust. This example also shows just how fragile the momentum is behind fundamental changes that need to be made in the IIM trust management system. [16] The July 6 stipulation applies to those funds that are "available to Treasury" on the prior business day. Defs.' Ex. 103 ¶ 7. [17] Because this issue mainly involves an interpretation of the stipulation, discussion of this point will be reserved until the conclusions of law section of this Memorandum Opinion. [18] Similarly, the law is clear that, to the extent a waiver is needed, § 702 waives the government's sovereign immunity for certain non-APA claims, as well. See id. at 31 (citing Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996); Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.Cir.1984); Dronenburg v. Zech, 741 F.2d 1388, 1390 (D.C.Cir.1984); Schnapper v. Foley, 667 F.2d 102, 108 (D.C.Cir.1981); Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C.Cir. 1981)). To the extent that their claims are not reviewable under the APA, then plaintiffs are entitled to non-APA, or "non-statutory," review. See Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-91, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). For example, plaintiffs contend that defendants do not have legal authority to destroy certain trust-related documents. If this claim is not reviewable under the APA for some reason, then plaintiffs may state this claim outside of the APA under the applicable standard for non-statutory review. See Chamber of Commerce, 74 F.3d at 1328. Because the court ultimately holds today that plaintiffs' proved breaches of trust are actionable under the APA, the court will not address the merits of plaintiffs' non-statutory review allegations. [19] The court is aware that its November 1998 ruling used the equitable nature of plaintiffs' action for an accounting as further proof of § 702's applicability. See Cobell, 30 F.Supp.2d at 41-42. As the court's ruling made clear, however, this (now erroneous) point was merely further support for the court's § 702 analysis. See id. ("The line of case law stating that the remedy of accounting is an equitable one further supports the conclusion that the plaintiffs' requested relief is one for specific relief, as opposed to one for money damages."). [20] This point raises another flaw in defendants' argument. Defendants' own position is that the "true remedy" of an accounting yields a "restitutionary award." "[R]estitution is not damages; restitution is a restoration required to prevent unjust enrichment." D. DOBBS, LAW OF REMEDIES § 4.1(2), at 557 (emphasis in original). The Supreme Court has emphasized that "[t]here is no evidence that any legislator [involved in the passage of § 702] understood the words `money damages' to have any meaning other than the ordinary understanding of the term as used in the common law for centuries. No one suggested that the term was the functional equivalent of a broader concept such as `monetary relief.'" Bowen, 487 U.S. at 897, 108 S.Ct. 2722. Thus, setting aside all of the other reasons that defendants' argument fails, defendants' own premises do not lead to the conclusion that they seek. [21] The court did state that, as a matter of statutory construction, the common law plays a role in the interpretation of defendants' duties. The government agrees with this position. [22] For example, significant legal issues that remain matters for the second phase of this case include: (1) whether an applicable statute of limitations, if any, precludes any of plaintiffs' claims for an accounting; (2) whether an accounting accomplished through a sampling technique will satisfy the requirements of the Trust Fund Management Reform Act; and (3) the precise scope of plaintiffs' certified class. [23] In addition to denying the importation of various trust duties not relevant to obtaining an accounting of existing trust money, this ruling also disposes of plaintiffs' common-law claim that the government has breached its duty of care by divesting IIM trust funds at the time of check issuance, as opposed to negotiation. See supra subpart II(B) & section II(G)(2). Plaintiffs have only stated this claim on common-law grounds. See Pls.' FF/ CL, at 40. [24] The court recognizes that the APA itself does not provide an independent basis for jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). However, given the nature of plaintiffs' claims, the court's ultimate jurisdictional analysis must be viewed in light of the APA's various requirements. Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C.Cir.1984). [25] The court does not mean to imply that government counsel has intentionally misconstrued the court's previous ruling. To be fair, it should be remembered that government counsel representing defendants at the time of the earlier motions hearing and opinion issuance has been replaced by current counsel. Current counsel's mistake may have been the product of that transition. [26] Because the second phase of this lawsuit involves the actual accounting, the court need not (and cannot) address whether and to what extent defendants have breached their ultimate duty to render an accounting. [27] The Declaratory Judgment Act provides: In a case of actual controversy within its jurisdiction ... any court of the United States[,] upon the filing an appropriate pleading, may declare the rights and the other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 28 U.S.C. § 2201. [28] 5 U.S.C. § 703 ("The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments ...."). [29] 5 U.S.C. § 706 ("To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."). [30] Defendants' theory is that they are not in breach of any statutory duties, given their own interpretation of the Trust Fund Management Reform Act. The court cannot evaluate whether defendants are in compliance with their statutory trust duties—primarily the duties to take certain steps necessary to render an accurate accounting—without declaring in some basic sense what the ultimate accounting must entail. The court cannot determine, for example, whether defendants have "[e]stablish[ed] consistent, written policies and procedures for trust fund management and accounting," see 25 U.S.C. § 162a(d)(6), but not state what the goal of the written policies and procedures must be, which necessarily involves a determination of the type of accounting that must be rendered. Accordingly, the court believes that it must interpret and declare the basic nature of the accounting required by the Trust Fund Management Reform Act, as it is necessary to reach a decision in this case. See 5 U.S.C. § 706; see also infra section V(B)(1) (declaring that the Indian Trust Fund Management Reform Act requires an accurate accounting of all IIM trust money held in trust for the benefit of plaintiffs). [31] It has been stated that "statutes passed for the benefit of dependent" Indians, such as the statutes involved in this case, "are to be liberally construed in favor of the Indians, and any doubt as to the proper construction is to be resolved in the latter's favor." Rockbridge, 449 F.2d at 571 (citing Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 100 L.Ed. 883 (1956)). While the court recognizes this principle, it does not afford it great weight in the case at bar given the clarity of the pertinent statutory provisions at issue. [32] It should be noted that the court is not ruling upon what specific form of accounting, if any, the Trust Fund Management Reform Act requires. For example, the court does not purport to rule on whether an accounting accomplished through statistical sampling would satisfy defendants' statutory duties. Moreover, the court will not now address other arguments that the government may make in the future on the "historical" nature of the accounting (e.g., statute-of-limitations arguments). [33] The government appears to agree with this basic principle (without the caveat that it is required of "all funds"). Defs.' Resp. to Pls.' FF/CL, at 11 ("[D]efendants have an obligation to furnish `complete and accurate information,' something expressly provided for in 25 U.S.C. § 162a."); Trial Tr. at 1684. [34] For a discussion of actual destruction of trust documents by Interior, see Report of the Special Master (filed June 7, 1999). [35] For a discussion of recent destruction of potentially necessary IIM-related trust documents by Treasury, see Pls.' Ex. 152 (disclosing the destruction of potential IIM documents). [36] When agencies commit errors of law, those agencies usually have "discretion to determine in the first instance `how to bring themselves into compliance.'" Global Van Lines, Inc. v. Interstate Commerce Commission, 804 F.2d 1293, 1305 n. 95 (D.C.Cir.1986). To afford the agencies the opportunity to rectify their errors, "the proper course is to remand the case for further agency consideration in harmony with the court's holding." Id. (citations omitted).

594 So.2d 914 (1991) Barbara MOBLEY v. DEPARTMENT OF SOCIAL SERVICES and Department of State Civil Service. No. 90 CA 1892. Court of Appeal of Louisiana, First Circuit. December 27, 1991. *915 Mark E. Falcon, Avant and Falcon, Baton Rouge, for appellants. Joyce Fisher, Staff Atty., Dept. of Social Services, Bureau of Legal Services, Baton Rouge, for appellee Dept. of Social Services. Robert R. Boland, Jr., Civil Service General Counsel, Dept. of State Civil Service, Baton Rouge, for appellee Dept. of State Civil Service. Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ. SAVOIE, Judge. This Civil Service case involves the issue of whether a permanent classified employee is entitled to a pay increase based on a change in position which the employee contends was a promotion. The facts of the case are not in dispute. Ms. Barbara J. Mobley, a permanent classified employee of the Department of Social Services, was laterally displaced in lieu of a September 10, 1988 layoff. She later took a voluntary demotion without any reduction in pay: she went to a GS-6 level position from her previous position at a GS-8 level. She then returned to her pre-layoff GS-8 position by appointment from a department preferred reemployment list (a list of employees who have been laid off or affected by a layoff, i.e., displaced and/or demoted). She did not receive promotional pay, but continued to receive the pay appropriate to a GS-8 position. Ms. Mobley filed an appeal with the Civil Service Commission (Commission) complaining of pay discrimination. She alleged that two other classified employees who were appointed from department preferred reemployment lists had received promotional pay increases. The Commission denied Ms. Mobley's appeal, finding that she was not entitled to a promotional pay increase. From this decision, Ms. Mobley appeals. She asserts three assignments of error: 1. The Commission erred in failing to conclude that Ms. Mobley was entitled to promotional pay due to then existing Civil Service Rules. 2. The Commission erred in failing to follow its own precedent as set forth in the Appeal of Marilee C. Standiford. 3. The Commission erred in failing to award reasonable attorney's fees. LEGAL ANALYSIS ASSIGNMENT OF ERROR NO. 1 Ms. Mobley argues that she is entitled to a pay increase as set forth in Civil Service Rule 6.7 because she was promoted as defined by Civil Service Rule 1.27.[1] Rule 1.27 states: "`Promotion' means a change of a permanent employee in the Classified Service from a position of one job to a position of another job which is assigned to a higher pay grade." Rule 6.7 reads, in pertinent part, as follows: Rate of Pay upon Promotion (a) When an employee is promoted to a position in a higher grade, his pay shall increase by at least 7 percent. (b) When an employee is given a one grade promotion his pay shall increase by 7 percent. When an employee is given a two grade promotion his pay may be increased in an amount not to exceed 10½ percent.... An employee shall not be paid below the minimum of the higher range. Ms. Mobley contends that she changed jobs from the position of one job to a position of another job which was assigned to a higher pay grade, and thus was promoted as defined by Rule 1.27. We agree with the Commission's ruling that Ms. Mobley is not entitled to a pay increase because she was not promoted as contemplated by Rule 1.27. We find *916 that a promotion would not include an employee such as Ms. Mobley who is already receiving the higher pay grade (of the newer job to which she is appointed) while working at another job of a lower pay grade, in lieu of being laid off.[2] We find that the redactors intended promotion to cover the situation where an employee in a job at a lower pay grade who is actually receiving pay at the lower grade changes position to a job at a higher pay grade so that his pay increases to that of the higher pay grade. Ms. Mobley correctly points out that the Civil Service Rules must be construed according to the rules of interpretation applicable to legislation in general. Department of Health and Human Resources, Office of Family Security v. Perry, 423 So.2d 1266 (La.App. 1st Cir.1982). One of the civil code articles dealing with the interpretation of laws reads, "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." LSA-C.C. art. 9. Additionally, as this court in the Perry case pointed out, "courts should interpret statutes in light of their true intent and also to avoid absurd results." Perry, 423 So.2d at 1269. Ms. Mobley's application of the rule in this case would lead to absurd consequences and would ignore the rule's true intent. See Perry, 423 So.2d at 1269. Ms. Mobley was not deprived of the pay she was entitled to and accustomed to receiving when she took a voluntary demotion; Civil Service Rule 6.10(d) authorizes a demotion in lieu of layoff without a pay reduction. Thus, Ms. Mobley continued to receive pay at a GS-8 level although the position she was demoted to was at a GS-6 pay grade. She then returned to a GS-8 position due to reemployment preference. However, Ms. Mobley now seeks to use that reemployment preference from which she already benefitted to obtain an increase in pay to which she otherwise would not be entitled. Furthermore, a promotion is constitutionally mandated to be based on "merit, efficiency, fitness, and length of service." LSA-Const. art. X § 7. If a department preferred reemployment list exists for a particular classification, an appointing authority must hire from that list when filling a vacancy. An appointment from a department preferred reemployment list is not based upon the factors set forth in the Constitution, but rather is based strictly upon length of state service.[3] The argument *917 that Ms. Mobley was on the department preferred reemployment list for the GS-8 position because she had previously met this constitutional requirement when she was originally promoted to the position must be met with the argument that she has already been compensated for such promotion. That is, her recent move was not a "re-promotion", but was a preferential appointment based on seniority only. If Civil Service Rule 1.27 defining promotion is read as Ms. Mobley would have us interpret it, then constitutional problems arise. If a statute or rule is broad enough to be applied both validly and invalidly, the valid interpretation should be used when it conforms to the legislative intent or purpose of the statute. See Callais Cablevision v. Houma Cablevision, 451 So.2d 6, 12 (La.App. 1st Cir.), writ denied, 452 So.2d 1175 (La.1984). Therefore, we reject Ms. Mobley's interpretation of Rule 1.27. Additionally, we note that in Hill v. DHHR, 457 So.2d 781 (La.App. 1st Cir. 1984), we recognized that the Civil Service Commission's interpretation of its own rules becomes part of the rule, as long as the interpretation is not unreasonable. Assignment of Error No. 1 is meritless. ASSIGNMENT OF ERROR NO. 2 Ms. Mobley claims that she is entitled to an increase in pay based on another Civil Service case, the Appeal of Marilee C. Standiford. The Commission acknowledged in its opinion in the case before us that Ms. Mobley's situation was identical to the situation in the Standiford case. In Standiford, the employee was laterally displaced in lieu of a layoff, was later voluntarily demoted with no reduction in pay, and was then returned to her pre-layoff position by appointment from a department preferred reemployment list. The Commission decided the employee in Standiford was entitled to promotional pay under Civil Service Rule 6.7. The Commission in this case concluded that its Standiford decision was incorrect and overruled it. The Commission determined Rule 6.5(c) applied to Ms. Mobley's situation. Rule 6.5(c) reads: "The pay of an employee reentering the classified service... may be fixed at any rate in the range that does not exceed the highest salary he previously earned while serving with permanent status in a classified position other than detail to special duty." The Commission stated in its opinion that Ms. Mobley was not entitled to promotional pay on the grounds that two other employees in the same or similar situation had received it. According to the Commission, the promotional pay was ordered in error and Ms. Mobley was not entitled "to a perpetuation of that error." The Commission relied on the reasoning in its decision entitled Appeal of Janet Slaybaugh to support its finding that Rule 6.5(c) applied.[4] According to the Slaybaugh opinion, Finally, the Commission concludes that appellant's [Slaybaugh's] appointment from the department preferred re-employment list was most analogous to a re-entry into the classified service. Appellant herein was not laid off; therefore, she did not actually leave the classified service and later re-enter it. However, as a result of the layoff, appellant was displaced from her job class and she later re-entered the same job class by appointment from the department preferred re-employment list. Regardless of whether an employee is laid off or is merely displaced from his position, the employee's department preferred re-employment rights are identical. The Commission concludes that the employee's pay eligibility upon returning to his former job class should also be identical. Under Civil Service Rule 6.5(c), an employee who is actually laid off and who is *918 later returned to his former job class by appointment from a department preferred re-employment list can be paid no higher than the pay rate earned prior to the layoff. The Commission believes that an employee who is fortunate enough to escape layoff and who is only displaced to another job or demoted as a result of the layoff should not receive a greater pay eligibility upon returning to his former job class than the less fortunate employee who was actually laid off. Regardless of what Ms. Mobley's restoration to her pre-layoff position is classified as, we agree with the Commission's finding that it was not a promotion within the meaning of Rules 1.27 and 6.7 and Article X, § 7 of the Constitution. Therefore, we find no error in the decision of the Commission denying Ms. Mobley a pay increase. Ms. Mobley's second assignment of error has no merit. ASSIGNMENT OF ERROR NO. 3 We pretermit discussion of Ms. Mobley's entitlement to attorney's fees because of our previous rulings. For these reasons, the decision of the Civil Service Commission is affirmed. Ms. Mobley is to pay all costs of this appeal. AFFIRMED. COVINGTON, C.J., concurs in the result. NOTES [1] Except as otherwise indicated, all reference in this opinion to the Civil Service Rules is to those rules as they existed at the pertinent times. [2] Although not applicable in this case, the Commission enacted a rule dealing with pay upon appointment from a department preferred reemployment list. The rule, 6.5.1, states: Subject to Rule 6.14, the pay of a person appointed from a department preferred reemployment list may be fixed no higher than his rate of pay at the time of the layoff or displacement action, which entitled him to placement on the preferred list from which he is appointed, or at his current rate if such rate is higher based on other provisions of these Rules. In no case shall the rate of pay be higher than the range maximum for the class to which appointed. The rule was instituted on an emergency basis on January 10, 1990, and on a regular basis on February 7, 1990. [3] Civil Service Rule 17.24(c) reads in pertinent part as follows: The names of laid off or displaced permanent employees on the department preferred reemployment lists shall be ranked in the order of length of State service they held at the time of the layoff. Civil Service Rule 17.25 states in part: When there is a department preferred reemployment list for an agency or department affected by a layoff, containing the name of one or more qualified employees available for appointment to a vacant position in the affected agency or department, the vacancy shall be filled only by reinstatement, restricted appointment, detail to special duty not to extend three (3) months beyond the effective date of layoff, job appointment not to extend three (3) months beyond the effective date of layoff, internal demotion, restoration of a former employee entitled to the position who has returned from military service in accordance with Rule 8.19, or appointment of an eligible from such list.... Except as provided in this Rule, appointment from a department preferred reemployment list shall take priority over all other methods of filling vacancies. Civil Service Rule 8.9(a) reads in part as follows: Except as provided in subsection (c) hereof, appointment from certificates must be made from one of the eligibles within the five highest final grades, except in making appointments from a department preferred re-employment list, in which case the highest ranking eligible shall be appointed.... [4] In the Appeal of Janet Slaybaugh, the employee was involuntarily demoted without any reduction in pay due to a layoff and then was appointed from a department preferred re-employment list to a position that was equivalent to her pre-layoff position. Because Ms. Slaybaugh's situation was slightly factually distinguishable from that of Ms. Standiford, the Commission found that the Standiford decision was inapplicable and did not consider the correctness of the Standiford decision.

FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 7/14/2015 5:04:39 PM CHRISTOPHER A. PRINE Clerk 

386 S.W.2d 337 (1965) Ava Nell QUARLES, Appellant, v. N. K. QUARLES, Appellee. No. 16437. Court of Civil Appeals of Texas, Dallas. January 8, 1965. Rehearing Denied February 5, 1965. *338 Bruce Graham, Greenville, for appellant. G. C. Harris, Greenville, for appellee. WILLIAMS, Justice. N. K. Quarles brought this suit in the district court against his wife, Ava Nell Quarles, seeking a divorce, distribution of the community property, and custody of three minor children of the marriage, ages 14, 10 and 3, alleging "that said children are with the plaintiff and it would be to the best interest and welfare of said children that their custody be awarded to plaintiff upon hearing hereof." Ava Nell Quarles responded to this suit with her answer and cross-action wherein she sought a divorce from N. K. Quarles, a division of the community estate, and asked that custody of the three minor children be awarded to her. She alleged "that cross-plaintiff is a proper person to have the custody of their three minor children and asks that upon a final hearing that she be granted such custody." Following a trial before the court and a jury special issues were answered by the jury in favor of both plaintiff and cross-plaintiff on the issues of divorce. In response to questions propounded to them concerning custody of the three minor children the jury found that (3) N. K. Quarles is a proper and fit person to be entrusted with the care and custody of the minor children; (4) that Ava Nell Quarles was not a proper and fit person to be entrusted with the care and custody of the minor children; and that (5, 6 and 7) the welfare and best interest of the three minor children would be best served by awarding their care and custody to the father, N. K. Quarles. Based upon this jury verdict the trial court awarded a decree of divorce to Ava Nell Quarles, ordered a division of the community property, and awarded the care and custody of the three minor children to the father, N. K. Quarles, with rights of reasonable visitation to the mother. Ava Nell Quarles appeals to this court complaining only of that part of the trial court's judgment awarding custody of the three minor children. In her first three points on appeal, grouped for presentation, appellant argues that the trial court erred (1) in placing the burden of proof on the mother, Ava Nell Quarles, in Special Issues 4, 5, 6 and 7 relating to custody; (2) in instructing the jury that the rights of the father and mother are equal with respect to their children; and (3) in refusing to give to the jury a requested instruction to the effect that ordinarily custody of a girl of tender years is best served by an award to the mother. In Special Issue No. 4 the trial court asked the jury to find from a preponderance of the evidence whether Ava Nell Quarles is a proper and fit person to be entrusted with the care and custody of the minor children of the parties. The jury replied "No". In Special Issues Nos. 5, 6 and 7 the court separately submitted the question to the jury to "find from a preponderance of the evidence whether the welfare and best interest of the minor child will best be served by awarding the care and *339 custody of such minor to the father or to the mother." In each instance the jury found "father". We do not agree with appellant that the court erroneously placed the burden of proof upon her in these issues. It is an elementary rule of law that the party asserting an affirmative of an issue is obligated to establish it by a preponderance of the evidence. 31 Tex.Jur.2d 737, § 157. In this case appellant, in her cross-action, alleged that she, and not appellee, was a proper person to have the custody of the minor children. Special Issue No. 4 submitted that very question to the jury, properly placing the burden of proof upon appellant to establish the affirmative thereof. In Special Issues 5, 6 and 7 the court so worded the issues to properly place the burden of proof on both the mother and the father, each of whom had affirmatively sought custody. As a part of the charge, the trial judge instructed the jury: "You are further instructed that the rights of the father and mother are equal with respect to the custody of their children, but that the welfare of the child or children is of controlling importance, and it will be your duty to find according as you may believe from a preponderance of all the evidence as to what will be for the best welfare and good of the child or children, and you will answer such issues as you may find the facts to be, answering father or mother as indicated." We are of the opinion that this instruction is legally correct and overrule appellant's objection thereto. In re Boyd, Civ. App., 157 S.W. 254; Gully v. Gully, Civ. App., 184 S.W. 555; Sanders v. Treend, Civ.App., 266 S.W.2d 235; 20 Tex.Jur.2d 653, § 326, and cases there cited. Nothing is more firmly established in our law that the paramount question to be decided in custody matters is the best interest of the child and any right of a parent must yield to such welfare and best interest. The statute itself, Art. 4639a, Sec. 1, V.A.C.S., provides that the decree and order relating to custody must be based upon the best interest of the minor. In this connection see Erwin v. Erwin, Civ.App., 344 S.W.2d 923; Huddleston v. Huddleston, Civ.App., 346 S.W.2d 931; Bell v. Hoskins, Civ.App., 357 S.W.2d 585; Robinson v. Robinson, Civ.App., 359 S.W.2d 215; Meyer v. Meyer, Civ.App., 361 S.W.2d 935. As a part of her objections to the submission of Special Issue No. 7, inquiring concerning the proper custody of the three-year-old girl, Ann Quarles, appellant requested the court to give the following instruction: "You are charged as a part of the law in this case, that in considering your answer to Special Issue No. 7, that unless you find from a preponderance of the evidence, that Ava Nell Quarles, the mother, is unfit to have the custody of Ann Quarles awarded her, that it is ordinarily for the best interest of a minor girl of tender years, that the custody of such child be awarded the mother." The court refused to give this instruction. Such refusal does not, in our judgment, amount to reversible error in this case. Appellant has cited us no case in which such a request, or similar request, was ever given. Neither have we been able to find any such case. While it is true, as reflected by many adjudicated cases, that it is ordinarily proper and desirable to award children of tender years to the mother, such rule is necessarily qualified and modified by circumstances affecting the child's best interest and welfare. The mother is not, in every case, entitled to custody of such a child, as a matter of law. We believe that the instruction given by the court, set forth above, adequately presents the law of the case rendering it unnecessary to give the requested instruction. Moreover, any error, should there be error, in refusing such instruction is, in our opinion, harmless error and is not shown to have resulted in the rendition of an improper *340 verdict. Rule 434, Texas Rules of Civil Procedure. Appellant's Points 1, 2 and 3 are overruled. In her fourth and fifth points, appellant contends that there are no pleadings alleging that she is unfit to have the care and custody of her minor children, nor was there any evidence of her unfitness, and therefore the court erred in submitting Special Issues 4, 5, 6 and 7 to the jury. There is no merit to either of these points and they are overruled. Both the father and the mother allege that it would be to the best interest and welfare of the minor children that custody be awarded to them. These pleadings were adequate to allow the introduction of evidence relating to the question of the best interest and welfare of the children and also to justify the submission to the jury of the special issues. Moreover, no objection, based upon lack or insufficiency of pleadings, was advanced when the testimony was submitted relating to the matter of custody. As to the question of no evidence on the issue of unfitness, as well as the best interest and welfare of the children, we find abundant evidence in this record, both pro and con, relating to those vital questions which were ultimately determined by the jury in favor of appellee. Appellant's "no evidence" point is therefore without merit. By her Points 6, 7 and 8, appellant contends that the court erred in overruling her motion for instructed verdict as to the custody of the three-year-old daughter, Ann Quarles; in overruling her motion for judgment non obstante veredicto as to the jury's answer to Special Issue No. 4; and in overruling appellant's motion for judgment non obstante veredicto as to the jury's answers to Special Issues 5, 6 and 7. These points are "no evidence" points since the trial court would not have been legally authorized to either grant the motion for instructed verdict or motion for judgment non obstante veredicto unless there was no evidence to present the issues or sustain the answers thereto on the question of custody. As we said in Davidson v. Methodist Hospital of Dallas, Civ. App., 348 S.W.2d 400, it is only when there is no evidence of probative value in support of a jury's verdict that a judgment non obstante veredicto can be allowed to stand. See also Burbridge v. Rich Properties, Inc., Civ.App., 365 S.W.2d 657; Burt v. Lochausen, 151 Tex. 289, 249 S.W. 2d 194; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616. Being a "no evidence" situation we have reviewed these points in the light of the rule announced by our Supreme Court in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. The statement of facts in this case, 361 pages in length, has been carefully examined by us and rather than being devoid of any evidence at all on the question of the proper care and custody, we find the evidence to be abundant, both on behalf of the father and the mother, relating to what would be the best interest of these children and their future welfare. Prior to the enactment of Art. 4639a, V.A.C.S., which specifically provides for the determination of the custody question by a jury, and providing that the judgment of the court in such a jury trial may not contravene the jury's determination of the child custody issue, a great amount of discretion was vested in the trial judge. Of course, the jury's determination of the issue of custody must be supported by evidence, as in other cases. In Welch v. Welch, Civ.App., 369 S.W.2d 434 we had occasion to review Art. 4639a, V.A. C.S. and we there held that if the verdict of the jury relating to child custody is not supported by any evidence such verdict could be disregarded under the provisions of Rule 301, T.R.C.P., as in any other case. However, where there is evidence to support the jury's verdict the trial judge has no right to substitute his findings or opinion with reference to the custody, nor neither may this court do so. Points 6, 7 and 8 are overruled. The judgment of the trial court is affirmed.

Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-13-2005 USA v. Armstrong Precedential or Non-Precedential: Non-Precedential Docket No. 05-2333 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "USA v. Armstrong" (2005). 2005 Decisions. Paper 414. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/414 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. BPS-389 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 05-2333 ________________ UNITED STATES OF AMERICA v. MICHAEL ARMSTRONG, Appellant ____________________________________ On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. No. 99-cr-00603) District Judge: Honorable Juan R. Sanchez _______________________________________ Submitted For Possible Summary Action Under Third Circuit LAR 27.4 And I.O.P. 10.6 And On Appellant’s Motion For A Certificate Of Appealability Under 28 U.S.C. § 2253(c)(1) September 29, 2005 Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES (Filed: October 13, 2005) _______________________ OPINION _______________________ PER CURIAM Appellant Michael Armstrong, a federal prisoner, appeals the order of the United States District Court for the Eastern District of Pennsylvania denying his motion under 28 U.S.C. § 2255 to vacate his sentence. The parties are familiar with the facts of the case, and we will not recount them at length. After a jury trial, Armstrong was convicted of conspiracy to possess with intent to distribute cocaine and cocaine base, possession with intent to distribute cocaine and cocaine base, and attempted possession and distribution of cocaine and cocaine base. Armstrong was sentenced to 300 months of imprisonment. This Court affirmed the conviction and sentence on May 29, 2003. In August 2004, Armstrong then filed a motion under 28 U.S.C. § 2255 to vacate his sentence, raising a number of claims of ineffective assistance of counsel. Armstrong also claimed that his sentence is unconstitutional in light of Blakely v. Washington, 542 U.S. 296 (2004), because his sentence was increased on the basis of judicial fact- finding using a preponderance of the evidence standard, rather than upon facts found beyond a reasonable doubt by the jury. In addition, Armstrong asserted that, under Shepard v. United States, 125 S. Ct. 1254 (2005), his sentence was unlawfully increased on the basis of a prior conviction not charged in the indictment nor found beyond a reasonable doubt by the jury. By memorandum and order entered on March 30, 2005, the District Court denied the section 2255 motion, concluding that none of Armstrong’s claims warrant relief. However, noting that Armstrong’s Blakely claim was more appropriately addressed under United States v. Booker, 125 S. Ct. 738 (2005), which applied the Blakely rule to the 2 United States Sentencing Guidelines, the District Court granted a certificate of appealability as to Armstrong’s Booker and Shepard claims. The District Court denied a certificate of appealability on Armstrong’s ineffective assistance of counsel claims. After Armstrong filed his notice of appeal, we decided Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005). We then asked the parties to submit written argument in support of, or in opposition to, summary affirmance. The parties have filed their responses. Armstrong has also filed a motion for a certificate of appealability regarding his claims of ineffective assistance of counsel, which we will construe as a motion to expand the scope of the certificate of appealability. We held in Lloyd that the rule announced in Booker is a new rule of criminal procedure that is not retroactively applicable to cases on collateral review. Lloyd, 407 F.3d at 615-16. Thus, Armstrong is not entitled to relief under Booker. As for his similar claim regarding the fact of his prior conviction that was used to increase his sentence, we observe that Armstrong did not raise this claim in District Court until March 2005, months after the one-year period of limitations would have expired. See 28 U.S.C. § 2255. Armstrong relies on Shepard, which was decided on March 7, 2005. To the extent that he contends that his claim involves a right newly-recognized by the Supreme Court and made retroactively applicable to cases on collateral review, and thus section 2255’s statute of limitations has not expired for this claim, we note that Shepard has not been made retroactive by the Supreme Court. See Tyler v. Cain, 533 U.S. 656, 663 3 (2001). In any event, Armstrong would not be entitled to relief. The Supreme Court in Blakely and Booker reaffirmed its holding in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that other than the fact of a prior conviction, a fact that increases a criminal penalty beyond the prescribed statutory maximum must be admitted by the defendant or proved to a jury beyond a reasonable doubt. See Blakely, 124 S. Ct. at 2536; Booker, 125 S. Ct. at 756. Shepard involves what a court may and may not consider in determining whether a defendant’s prior convictions qualify as predicate offenses for application of the Armed Career Criminal Act. Shepard’s holding does not apply to Armstrong, and the rule of Apprendi applies. Because these issues present “no substantial question,” see 3d Cir. LAR 27.4 and I.O.P. 10.6, we will summarily deny relief on these claims. We have carefully considered Armstrong’s motion to expand the scope of the certificate of appealability to include his claims of ineffective assistance of counsel. We conclude that he has failed to make a “substantial showing of the denial of a constitutional right” on these claims. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Thus, we will deny the motion. 4 

605 F.3d 345 (2010) Susan M. FOX, Plaintiff-Appellant, v. TRAVERSE CITY AREA PUBLIC SCHOOLS BOARD OF EDUCATION, Traverse City Area Public Schools, Christine M. Davis, and Robert T. Peters, Defendants-Appellees. No. 09-1688. United States Court of Appeals, Sixth Circuit. Argued: March 9, 2010. Decided and Filed: May 17, 2010. *346 ARGUED: Carl J. Marlinga, Marlinga Law Group, PLLC, Clinton Township, Michigan, for Appellant. William Vogelzang, Jr., Kluczynski, Girtz & Vogelzang, Grand Rapids, Michigan, for Appellee. ON BRIEF: Carl J. Marlinga, Marlinga Law Group, PLLC, Clinton Township, Michigan, for Appellant. William Vogelzang, Jr., Mark T. Ostrowski, Kluczynski, Girtz & Vogelzang, Grand Rapids, Michigan, for Appellee. Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges. OPINION MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Susan M. Fox, a former special-education teacher employed by the defendant school system, appeals the district court's order granting summary judgment to the defendants in this First Amendment retaliation action brought under 42 U.S.C. § 1983. The district court held that the case is controlled by the Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and determined that, under Garcetti, the plaintiff's complaints to her supervisors about the size of her teaching caseload were not protected by the First Amendment. Specifically, the court held that the speech in question, if made by Fox at all, was made not in her role as a "public citizen" but as an employee, that it was made to her immediate supervisors, and that it did not address a matter of *347 "public concern" but, rather, only the conditions of her employment. We agree, and we therefore affirm the decision of the district court. FACTUAL AND PROCEDURAL BACKGROUND Fox was hired to teach at Blair Elementary School under a probationary contract for the school years 2005-2005 and 2006-2007. In February 2007, she was notified that her contract would not be renewed for the following year, based on documentation of numerous performance deficiencies dating back to early 2006. Those deficiencies included the failure to complete the required student Medicaid and IEP reports in an appropriate and timely manner, the unauthorized delegation of responsibilities to teaching assistants, and the failure to provide the minimum required instructional time to students. Fox's performance evaluations also indicated that the school had received complaints from parents that she was making inappropriate recommendations regarding medications for her students. She had been informed of these problems in periodic meetings with school officials during her probationary employment. Fox disputed claims that her performance was deficient and maintained that she was terminated for voicing concerns to her supervisors, Blair Elementary School Principal Robert Peters and Special Education Director Kim Urbanski, that the size of her teaching caseload exceeded that allowable by law. It is undisputed that during the 2005-2005 school year, Fox carried a caseload of no more than the legal limit of 21 students. In the fall of 2006, however, Blair Elementary launched a targeted reading program designed to improve the reading skills of both general and special education students. Fox volunteered to participate in the reading program but was relieved of that responsibility after only four weeks because, according to Principal Peters, she was falling behind in her other responsibilities. Fox maintained that her participation in the reading program had made her responsible for a total of 34 students in various classes, which by her calculation put her over the legal number of students to supervise. She further alleged that when she reported this non-compliance to Peters and Urbanski in September 2006, she encountered hostility that ultimately resulted in the notice of non-renewal she received in February 2007, almost five months later. Peters, on the other hand, denied that Fox had ever complained that her caseload violated the law at any time prior to the date he informed her that her contract would not be renewed. Fox conceded that she had never filed a formal grievance with her union. Moreover, nothing in the record indicates that she voiced concerns that her caseload was "illegal" outside the ordinary chain of command at her school. Fox ultimately filed suit in federal court, alleging a violation of her right to free speech under the First Amendment and also seeking recovery under several state-law theories. The district court granted summary judgment to the defendants on the civil rights claim and dismissed the pendent state-law claims. The court held that Fox's statements to her supervisors were not entitled to First Amendment protection and, therefore, that even if she had been fired for making them, there was no violation of a clearly established right, as required by section 1983. Fox now appeals the district court's summary judgment order, arguing that there exists a genuine issue of material fact as to whether, in voicing her complaint about her caseload, she was speaking as a public citizen entitled to First Amendment protection. *348 DISCUSSION To prevail in the district court on her claim of retaliatory discharge in violation of the First and Fourteenth Amendments, Fox would have had to show (1) that her statements were protected under the First Amendment; (2) that she suffered an adverse employment action; and (3) that "the adverse action was motivated at least in part as a response to the exercise of [her] constitutional rights." Nair v. Oakland County Cmty. Mental Health Auth., 443 F.3d 469, 477-478 (6th Cir.2006) (quoting Vaughn v. Lawrenceburg Power Sys., 269 F.3d 703, 715 (6th Cir.2001)). The district court determined that Fox failed to establish that her speech was protected and, therefore, that the defendants were entitled to judgment in their favor as a matter of law. The parties agreed below that Fox's retaliation claim is controlled by the Supreme Court's opinion in Garcetti, as did the district court. Indeed, the district judge concluded, "It's hard for me to see, frankly, a clear[er] case of Garcetti applying in the context of a public employee's speech." We agree. In Garcetti, the Supreme Court recognized that citizens who enter government service "must accept certain limitations on [their] freedoms," including limitations on the scope of their First Amendment rights. 547 U.S. at 418, 126 S.Ct. 1951. Observing that public employees "do not surrender all their First Amendment rights by reason of their employment," the Court held that the interest of a public employee "in commenting on matters of public concern" must be balanced against the interest of governmental employers "in promoting the efficiency of the public services it performs through its employees." Id. at 417, 126 S.Ct. 1951 (emphasis added). For a public employee's statements to receive First Amendment protection, the public employee must speak "as a citizen" and "address[] matters of public concern." Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir.2007). "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Under Garcetti, "even employee speech addressing a matter of public concern is not protected if made pursuant to the employee's official duties." Weisbarth, 499 F.3d at 545. Thus, in reviewing a public employee's statement under Garcetti, we must consider both its content and context — including to whom the statement was made — to determine whether the plaintiff made the statement pursuant to her individual duties. See id.; see also Haynes v. City of Circleville, 474 F.3d 357, 362 (6th Cir.2007). Speech by a public employee made pursuant to ad hoc or de facto duties not appearing in any written job description is nevertheless not protected if it "owes its existence to [the speaker's] professional responsibilities." Weisbarth, 499 F.3d at 544 (quoting Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). In Weisbarth, for example, we concluded that a park ranger's statements about morale and performance issues to an outside consultant hired by the ranger department to assess these matters were made pursuant to her official duties, even though participating in the interview was an ad hoc duty not described in the ranger's official job description. Id. at 543-44. Likewise, in Haynes we concluded that a police officer's memo to his superior officer expressing discontent about the financial cutbacks and changes to the canine-training program that he directed was not protected speech. See 474 F.3d at 365. *349 The memo suggested that the cuts would open the police department to allegations of "negligence," "deliberate indifference," and "failure to train," id. at 360, but the plaintiff officer conceded that the new program complied with Ohio law. Id. at 365. In concluding that the plaintiff made these statements as a public employee rather than a private citizen, we cited the officer's involvement with the canine training program and the fact that he made the statements "solely to his superior." Id. at 364. The memo, therefore, communicated "nothing more than `the quintessential employee beef: management has acted incompetently.'" Id. at 365 (quoting Barnes v. McDowell, 848 F.2d 725, 735 (6th Cir. 1988)). Like the employee statements at issue in Weisbarth and Haynes, Fox's statements were made as a public employee rather than as a citizen and, therefore, do not merit First Amendment protection. As in Haynes, Fox's complaints were directed solely to her supervisor, not to the general public. She argues that because she did not control the number of students assigned to her class, her complaints about class size cannot have been made pursuant to her official duties. But the canine-training program administrator in Haynes did not control the level of funding allocated to his program, and yet we concluded that he made these statements as an employee rather than a citizen. It is clear — without any intricate parsing of Fox's job description — that her complaint about class size "owes its existence to" her responsibilities as a special education teacher. Weisbarth, 499 F.3d at 544. Nor, despite her contention to the contrary, is Fox aided by our opinion in See v. City of Elyria, 502 F.3d 484, 493 (6th Cir.2007), in which we held that a city police officer's statements to the FBI alleging corruption within the city police department were constitutionally protected as a matter of public concern. Because the plaintiff officer reported his employer's illegal acts to an outside law enforcement agency, rather than solely to his supervisors, we held that those statements were obviously not made pursuant to the plaintiff's official duties. Id. Fox next urges us to look beyond our own circuit precedent to the decisions of our sister circuits decided in the education context. However, our post-Garcetti decisions in Weisbarth and Haynes are controlling and, as indicated above, fully support the district court's grant of summary judgment, even though neither case arises in the context of education. Moreover, the out-of-circuit cases on which Fox relies, Posey v. Lake Pend Oreille School District, 546 F.3d 1121 (9th Cir.2008),[1] and Cioffi v. Averill Park Central School District, 444 F.3d 158 (2d Cir.2006),[2] are irrelevant *350 to our analysis in this case, because both Posey and Cioffi, the plaintiff employees, made statements outside the ordinary chain of command and, therefore, their speech did not involve — as here — statements made by a public employee only to her immediate supervisors. Of more immediate pertinence to Fox's claim is the Fifth Circuit's observation that "[c]ases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job." Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). Finally, we reject the plaintiff's contention that the district court erred in treating the constitutional status of her speech as a matter of law, rather than a question of fact for a jury. Prior to the issuance of its decision in Garcetti, the Supreme Court treated "the inquiry into the protected status of speech [as] one of law, not fact." Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In Garcetti, however, the Court held that the question of whether a statement was spoken as a public employee or as a private citizen for First Amendment purposes was "a practical one," requiring a fact-specific inquiry into the "duties an employee actually is expected to perform." Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951. Unfortunately, whether the Court intended to retreat from the rule in Connick is not altogether clear from the language in Garcetti. As the plaintiff correctly observes, the circuits are divided over "whether the inquiry into the protected status of speech remains one purely of law as stated in Connick, or if instead Garcetti has transformed it into a mixed question of fact and law." Posey, 546 F.3d at 1127. The Third, Seventh, Eighth, and Ninth Circuits have concluded that "whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of fact and law." Id. at 1129; see also Reilly v. City of Atlantic City, 532 F.3d 216, 227 (3d Cir.2008); Davis v. Cook County, 534 F.3d 650, 653 (7th Cir.2008). Other circuits have stated that this remains a "question [] of law for the court to resolve." Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007); see also Charles v. Grief, 522 F.3d 508, 513 n. 17 (5th Cir.2008) ("even though analyzing whether Garcetti applies involves the consideration of factual circumstances surrounding the speech at issue, the question of whether [the plaintiff's] speech is entitled to protection is a legal conclusion properly decided at summary judgment"); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202-03 (10th Cir.2007) (district court is to determine "whether the employee speaks `pursuant to (his) official duties'," "whether the subject of the speech is a matter of public concern," and "whether the employee's interest in commenting on the issue outweighs the interest of the state as employer"). This circuit split is, however, ultimately irrelevant to the disposition of this case. In our post-Garcetti opinions we have consistently described the question of whether, in a First Amendment retaliation action, a public employee's speech is protected as one of law, not one of both fact and law. See Haynes, 474 F.3d at 362 (citing Taylor v. Keith, 338 F.3d 639, 643 (6th Cir.2003)) (public employee "must *351 show that, as a matter of law, the speech at issue was protected"); See, 502 F.3d at 492 (citing Connick, 461 U.S. at 148 n. 10, 103 S.Ct. 1684) (whether an employee's speech is protected "is a question of law for the court to decide"). Moreover, in granting summary judgment in this case, the district court took as true all of the plaintiff's factual allegations. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. 1348 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'"). The statements that Fox argues should receive protection under the First Amendment were made to her immediate supervisors at the school, and she does not dispute that the number of students assigned to her was directly related to the conditions of her employment. Even if the question were purely a question of fact, therefore, the district court properly granted summary judgment because the factual record presents no genuine issue for trial. CONCLUSION For the reasons set out above, we conclude that the district court correctly determined that, under Garcetti, when the plaintiff complained to her supervisor about the number of students assigned to her supervision, she spoke as a public employee rather than a private citizen. As a result, her statements were not entitled to protection under the First Amendment, and her retaliation claim was properly dismissed upon entry of summary judgment in favor of the defendants. The judgment of the district court is, therefore, AFFIRMED. NOTES [1] In Posey, the court found that there was a genuine issue of material fact as to whether the plaintiff, a security officer at a public high school, spoke as a public employee or a private citizen and reversed the district court's grant of summary judgment to the defendants on plaintiff's First Amendment retaliation claim. 546 F.3d at 1129. The security officer wrote a letter to the school district chief administrative officer, superintendent, and other district administrators describing drug and weapons violations at the school and the principal's unresponsiveness to safety problems. See id. at 1124. The plaintiff "wrote the letter at home, with his own resources, on his own time, and of his own initiative," and following the letter he met with school district officials at his home outside school hours to discuss his concerns. Id. [2] In Cioffi, the court, anticipating the Supreme Court's forthcoming ruling in Garcetti, held that the plaintiff teacher and athletic director spoke as a citizen rather than a public employee when he made statements about a hazing incident at his school. 444 F.3d at 167 n. 3. The school district uncovered incidents of hazing and sexual assault among the members of the football team, acts for which several students and teachers were arrested. See id. at 161. The plaintiff wrote a letter to the superintendent and school board and held a public press conference criticizing the football coach's supervision of the team and the school district's response to the incident. Id.

712 A.2d 132 (1998) 122 Md. App. 295 John DOE v. Jane DOE. No. 1330, Sept. Term, 1997. Court of Special Appeals of Maryland. June 29, 1998. *135 M. Albert Figinski (David W. Erb and Weinberg & Green, L.L.C., on the brief), Baltimore, for appellant. Paul Mark Sandler (Stacie F. Dubnow, Freishtat & Sandler, Baltimore, Thomas C. Ries and Kaufman, Ries & Elgin, P.A., Towson, on the brief), for appellee. Argued before HARRELL, THIEME and KENNEY, JJ. *133 *134 HARRELL, Judge. On 12 July 1996, appellant, John Doe,[1] filed a Complaint for Absolute Divorce against appellee, Jane Doe, in the Circuit Court for Baltimore County. The ground asserted for the divorce sought by Mr. Doe was Ms. Doe's alleged commission of adultery. On 5 December 1996, Mr. Doe filed an amended complaint, adding Counts II through VIII, which are the subject of this appeal. Counts II and III alleged fraud and intentional infliction of emotional distress, respectively, relating to Ms. Doe's alleged knowing, deliberate, false, and affirmative misrepresentation to Mr. Doe that he was the father of two of the parties' three children. Counts IV through VIII alleged fraud, negligent misrepresentation, promissory estoppel, breach of contract, and constructive trust, respectively, relating to allegations that Ms. Doe repeatedly dissuaded Mr. Doe from contributing to his 401(k) plan by falsely *136 and intentionally promising Mr. Doe that he could rely on Ms. Doe's stockholdings for his retirement. Compensatory and punitive damages were sought on all counts, save that for a constructive trust. On 31 January 1997, Ms. Doe filed a motion to dismiss Counts II through VII. The trial court held a hearing on the motion on 16 May 1997 and on 8 July 1997 issued an order granting Ms. Doe's motion to dismiss. On 14 July 1997, the court granted a motion for entry of final judgment as to Counts II through VIII pursuant to Rule 2-602(b)[2]. Mr. Doe presents the following questions for our review, which we have rephrased: I. Whether the trial court erred in dismissing Counts II and III on public policy grounds. II. Whether the trial court erred in finding the allegations in Counts II and III insufficient to state a cause of action. III. Whether the trial court erred in dismissing Counts IV through VIII for failure to state a cause of action. FACTS Mr. and Ms. Doe married on 2 September 1989. During the course of their marriage, three children were born: J.D. Doe, born 21 February 1992; and twins A.E. Doe and Z.S. Doe, born 10 July 1993. Mr. Doe was named as the father on the birth certificates of each of the three children, and Ms. Doe held out Mr. Doe as the biological father of each of the children. Unbeknown to Mr. Doe, Ms. Doe, an art student, began a sexual affair in 1990 with M.G., Ms. Doe's art professor. In 1991, Ms. Doe began working at M.G.'s art gallery in Baltimore. At Ms. Doe's request, M.G. became godfather to all three children. On 2 July 1996, Mr. Doe discovered a letter written by Ms. Doe to M.G. which stated, in part: It remains my belief that at some point in the course [of] our relationship I disappointed you deeply, and that this is a[t] least partially (if not wholly) responsible for bringing about the distance which has complicated our interactions during the past few years. The commencement of this change seems to roughly correlate with the birth of our children ... I realize that my decision not to terminate these pregnancies ... If my decision to bear J.D. & A.E. & Z.S. altered the feelings you held towards me, I am sorry. Though I have occasionally wondered if I made the correct choice in this I am convinced that given my perception (or misconceptions) about the bond [between] us at that time, I could not have decided otherwise. You will always be the father of my children. i.e.—have/develop your own relationship with each of them as you wish. The divulging of their identities will be at your discretion. If for some unforeseeable reason it should become necessary for me to provide information to the children regarding how they came to be Z.S., A.E., and J.D. will likely receive the [point] of view reflected in this letter, your name ... will be withheld and your privacy protected... Included please find cards from the St. Paul's parish documenting your godparentship to the children. Mr. Doe spoke with M.G. on 7 July 1996. During the course of that conversation, M.G. admitted the affair and acknowledged that he and Ms. Doe had engaged in sexual relations at the time J.D. was conceived in May 1991, and did not deny that he and Ms. Doe had engaged in sexual relations at or about the *137 time A.E. and Z.S. were conceived in November 1992. Mr. Doe confronted his wife on 11 July with the letter and M.G.'s admissions. Ms. Doe denied having sexual relations with M.G. and refused to discuss the children's paternity. The next day Mr. Doe filed for divorce. On 25 July 1996, Mr. Doe and the children submitted blood samples for DNA testing regarding Mr. Doe's paternity. The test results, provided in October 1996, confirmed that Mr. Doe was J.D.'s biological father but excluded him as the biological father of the twins. Mr. Doe alleged that throughout the parties' marriage the sexual encounters between Ms. Doe and himself were infrequent. In part because of Ms. Doe's health problems, the parties used withdrawal as their sole source of birth control. Mr. Doe recalled that in November or early December 1992, Ms. Doe uncharacteristically instigated sexual intercourse and "knowingly, deliberately and physically, prevented [Mr. Doe] from withdrawing when necessary." Mr. Doe alleges that this conduct, together with Ms. Doe's letter to M.G., allows a reasonable inference that Ms. Doe knew that M.G. had impregnated her before the rare sexual encounter with Mr. Doe, and that she seduced Mr. Doe solely to mislead him into believing that he was the biological father of the twins born thereafter. In addition to his allegations regarding Ms. Doe's concealment of the twins' paternity, Mr. Doe made several allegations regarding the parties' finances. Specifically, Mr. Doe alleged that in 1990 he discussed with Ms. Doe his desire to take advantage of the opportunity to contribute to the 401(k) retirement plan established by his employer. Ms. Doe asked him instead to continue to contribute one hundred percent of his salary into the joint family bank account, and, in return, Ms. Doe promised that Mr. Doe could rely on her stockholdings for his retirement. Based on these representations, Mr. Doe continued to deposit his entire salary into the parties' joint account, which Ms. Doe managed. Throughout the marriage, Mr. Doe continued to express his desire to begin contributing to the 401(k) plan, but Ms. Doe repeatedly dissuaded him from doing so, claiming that Mr. Doe's income was needed to pay for family expenses. She allegedly continued to assure him that he would be able to rely on her stockholdings for his retirement. As of November 1996, however, Ms. Doe has taken the position that Mr. Doe will not be able to rely on her stockholdings for his retirement. DISCUSSION Maryland Rule 2-322(b)(2) allows a defendant to seek a dismissal on the ground that the complaint fails to state a claim upon which relief can be granted. A complaint fails to state a claim when, even if the allegations of the complaint are true, the plaintiff nevertheless is not entitled to relief as a matter of law. Lubore v. RPM Associates, Inc., 109 Md.App. 312, 322, 674 A.2d 547, cert. denied, 343 Md. 565, 683 A.2d 177 (1996). When considering a motion to dismiss for failure to state a claim, the circuit court only examines the sufficiency of a pleading. Id. " `The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action.'" Id. (citing Hrehorovich v. Harbor Hosp. Ctr., 93 Md.App. 772, 784, 614 A.2d 1021 (1992)). On appeal, this Court "must assume the truth of all well-pleaded facts ... as well as inferences which may reasonably be drawn from those well-pleaded facts." Lee v. Denro, Inc., 91 Md.App. 822, 828, 605 A.2d 1017 (1992). If the complaint contains any material facts that support the plaintiff's right to recover, this Court must reverse the order of dismissal. Id. In the case sub judice the circuit court found Mr. Doe's complaint legally insufficient for two reasons: First, the court found that Mr. Doe's allegations of fraud and intentional infliction of emotional distress were barred by public policy. Second, the court found that the complaint failed to include any material facts supporting Mr. Doe's right to recover not only on the fraud and intentional infliction of emotional distress counts, but also on the counts relating to Ms. Doe's stockholdings and Mr. Doe's intentions regarding his employer's 401(k) plan. We will first address the trial court's finding that Mr. *138 Doe's claims are barred by public policy. Then we will turn to the specific allegations to determine if the pertinent counts of the complaint are sufficient to state a cause of action. I. The issue presented in this case is one of first impression in this State: Whether public policy precludes spouses from suing each other for fraud and intentional infliction of emotional distress even though the Maryland Court of Appeals has abrogated interspousal immunity. The court below believed such public policy exists. The court opined: Maryland has not yet confronted the issue of whether one spouse can sue another for fraud and intentional infliction of emotional distress relating to the paternity of the children born during the course of a marriage. Under the current state of the law, one spouse may sue another for certain outrageous and intentional tortious conduct. The Court of Appeals has expressly stated that interspousal tort immunity no longer exists in Maryland. Lusby v. Lusby, 283 Md. 334 [390 A.2d 77] (1978).... [In Lusby t]he Court noted that "no sound public policy in the latter half of the 20th-century ... would prevent one spouse from recovering from another for the outrageous conduct ... alleged" by the Plaintiff in that situation. Id. at 357 [390 A.2d 77]. Implicit in this statement is that public policy considerations may preclude interspousal suits for intentional torts in certain situations. The facts of the instant case present just such a situation. A.E. Doe and Z.S. Doe are almost four years old. For their entire life they have known the Plaintiff [Mr. Doe] as their father and have benefitted from his love and support. He notes in his complaint that he "has developed a close and loving relationship with each of them, cared for them, raised them and invested substantial time, effort, money and other resources... in each child's health, welfare and wellbeing." Plaintiff is seeking relief for the emotional distress of learning that he was not the biological father of the twins and also for the financial investment incurred as a result of this alleged fraud. To allow him to litigate these claims, outside the context of the domestic action, is not in the best interest of the children and provides little additional benefit to Plaintiff. In considering whether to allow these tort claims to proceed, the Court must balance the harm suffered by the Plaintiff against the potential harm to the children. The Plaintiff is not without a remedy. The conduct of the Defendant is relevant to the issue of custody and will impact on the Court's willingness to grant a monetary award. The Plaintiff can be compensated for the wrongs he has suffered without litigating these issues again in tort. Conversely, the potential harm to the children is great. Inter-familial warfare takes its toll on children, regardless of their age or awareness of the proceedings. These painful issues would be litigated twice, once in front of a judge for the divorce and again in front of a jury. Moreover, one day these children may become aware that the only father they had known sought to recover damages for his relationship with and investment in them. Allowing a non-biological parent to recover damages for developing a close relationship with a child misrepresented to be his and performing parental acts is not a damage which should be compensable under the law. The Court does not condone the alleged behavior of the Defendant, but the misrepresentations and omissions alleged are betrayals for which the law should not provide a remedy.... The Court[`]s ruling is limited to the facts of the instant case. It is not necessary to reach the broader issue of whether parties should be able to bring claims for intentional infliction of emotional distress and fraud when such suits are predicated on an action for divorce. It is the Court's belief, however, that such actions should be prohibited in the interest of judicial economy and the efficient administration of justice. As every trial judge knows, if such claims are allowed there will be two suits in every divorce—one at law and one in equity. Perhaps Judge Henderson in the Pickering case said it best: "where a man *139 and wife are involved in a marriage relationship, there could always exist a tort for intentional infliction of emotional distress where they had an argument. It could be over the family dog, who takes out the garbage, who forgot to pay the bills or who is spending too much money. In other words the law should not provide a basis for interfamilial warfare between husbands and wives where our courts would be flooded with litigation." [Pickering v. Pickering, 434 N.W.2d 758, 764 (S.D.1989) (Henderson, J. concurring in part, dissenting in part) ]. This is not to suggest that the allegations in the instant case equate to an argument over the family dog or taking out the trash, but the traumas spouses inflict upon each other in today's world are often heinous and all too common. It is simply not practical to allow these claims to be litigated as intentional torts when a remedy can be provided within the divorce action. We disagree with the trial court. First, given that Maryland has abrogated interspousal immunity for intentional torts, we reject the court's conclusion that public policy regarding the best interests of the children precludes this particular interspousal tort claim. Second, we do not agree that a divorce action will provide Mr. Doe a complete remedy for his claims if proven. We explain. Abrogation of Interspousal Immunity The common law doctrine of interspousal immunity was predicated on the concept of a husband and wife as one legal entity. Thompson v. Thompson, 218 U.S. 611, 614, 31 S.Ct. 111, 54 L.Ed. 1180 (1910). Because a wife's legal identity merged with her husband's upon marriage, married women were unable to enter into contracts, own property, sue or be sued. Id. at 614-15, 31 S.Ct. 111. The legal fiction of husband and wife as one entity precluded suits between spouses. Id. at 615, 31 S.Ct. 111. As the Court of Appeals explained: The disabilities formerly existing insofar as women are concerned are difficult for those of us of the present generation to fully comprehend. It seems hard to believe that prior to the adoption of the 19th Amendment of the Constitution of the United States in 1920 women were not permitted to vote in Maryland and many other states. Prior to the enactment of Chapter 399 of the Acts of 1902 they were not permitted to practice law in Maryland. See In Re Maddox, 93 Md. 727, 50 A. 487 (1901). Deeds are to be found among the land records of some of our counties in which acknowledgments appear referring to the examination of the wife out of the presence of her husband by the person taking the acknowledgment. Judge Richard Grason in Barton v. Barton, 32 Md. 214, 224 (1870), is authority for the fact that at common law "a debt due by the husband to the wife for money lent before marriage, became extinguished by the marriage." In that case he said for the Court: "[P]ublic policy, originating in the delicate relation existing between husband and wife, forbids a wife from maintaining an action at law against her husband during the coverture, and her only remedy against him is by a proceeding in equity." Id. at 224. In David v. David, 161 Md. 532, 534, 157 A. 755, 756 (1932), Judge Offutt said for the Court, "The rule at common law is that a married woman cannot maintain an action against her husband for injuries caused by his negligent or tortious act. 30 C.J., `Husband and Wife,' secs. 317, 675." He went on to say, referring to the same citation and also to Philips v. Barnet, 1 Q.B.D. 436 (1876), that "[t]he reason usually given for that rule is the presumed legal identity of the husband and wife...." Background for this is found in 1 W. Blackstone, Commentaries some 200 years ago: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be *140 covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage." Id. at * 442 (italics in original). He adds, in discussing the consequences of this union of husband and wife, "If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name, as well as her own: neither can she be sued without making the husband a defendant." Id. at * 443. Lusby v. Lusby, 283 Md. 334, 337-38, 390 A.2d 77 (1978). The passage of Married Women's Acts in the 1800s significantly weakened the legal fiction of "the union of person in husband and wife." These Acts, passed in most states, gave women a separate legal identity with the right to contract, own property, and maintain separate legal actions. See Stacey S. Kawasaki, Interspousal Torts: a Procedural Framework for Hawai'i, 19 U. Haw. L.Rev. 377, 378-79 (1997). Chapter 457 of the Acts of 1898, later codified in Article 45, § 5, and now contained in Md.Code (1984, 1991 Repl.Vol., 1997 Supp.), § 4-201 to 206 of the Family Law Article, revised Maryland's law regarding spouses' legal rights. Section 4-204 provides: § 4-204. Married woman's right to deal as if unmarried. A married woman may do any of the following, as if she were unmarried: (1) engage in business; (2) make a contract with any person, including her husband, whether or not she is engaged in business; (3) bind herself and her assigns by a covenant running with or related to real property or chattels real deeded to her on or after March 19, 1867; (4) form a partnership with any person, including her husband; (5) sue on any contract, including a contract made with her husband; (6) sue for the recovery, security, or protection of her property; (7) sue for any tort committed against her; and (8) appoint counsel to represent her in an action brought under § 4-205(b) or (c) or § 4-301(b) of this title. Section 4-205 provides, in part: § 4-205. Right to deal with married woman as if unmarried. (a) Husband's right.—A husband may sue his wife on a contract made with her, as if she were unmarried. (b) Rights of a third person—In general.— (1) A third person may take any of the following actions with or against a married woman, as if the married woman were unmarried: (i) make a contract; (ii) sue on the contract, whether the contract was made before or during the woman's marriage; (iii) sue for a tort, whether the woman committed the tort before or during her marriage; and (iv) execute on a judgment. (2) A third person may maintain an action at law or in equity against a married woman in her married name. Until Lusby, Maryland courts did not interpret these provisions as allowing spouses to sue one another in tort. Lusby, 283 Md. at 358, 390 A.2d 77. In Furstenburg v. Furstenburg, 152 Md. 247, 136 A. 534 (1927), Ms. Furstenburg brought an action against her husband for injuries she suffered in an automobile accident. Id. at 248, 136 A. 534. Rejecting the argument that Section 5 of Article 45 allowed an interspousal tort suit, the Furstenburg Court relied on Thompson v. Thompson, 218 U.S. 611, 31 S.Ct. 111, 54 L.Ed. 1180 (1910), in which the Supreme Court construed a similar District of Columbia statute. Furstenburg, 152 Md. at 249, 136 A. 534. The Furstenburg Court concluded that "[t]he statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common *141 law, must be brought in the joint names of herself and husband." Id. at 251, 136 A. 534 (quoting Thompson, 218 U.S. at 617, 31 S.Ct. 111). The Court found that [i]t appears to have been the purpose of the Act of 1898 to give the wife a remedy, by her suit alone, for actionable wrongs which could not theretofore be thus independently redressed. The intention to create, as between husband and wife, personal causes of action, which did not exist before the act, is not, in our opinion, expressed by its terms. Furstenburg, 152 Md. at 252-53, 136 A. 534 (emphasis added). Several years later, in David v. David, 161 Md. 532, 157 A. 755 (1932), the Court again concluded that the rights afforded spouses in Article 45, Section 5 did not include the ability to sue each other in tort: The rule at common law is that a married woman cannot maintain an action against her husband for injuries caused by his negligent or tortious act. The reason usually given for that rule is the presumed legal identity of the husband and wife, and some confusion has arisen from the adoption of the legislation which has had the effect of partially dissipating that fiction by permitting suits between husband and wife to enforce contractual liabilities, by according to each the same rights and privileges in respect to property they would have if unmarried, by permitting the wife to carry on a trade or business, and to receive and enjoy her earnings from any source as freely as if single, and to sue in her own name for torts against her. Coincident with the widening scope and extent of such legislation, there has been a determined effort to have it construed so as to permit actions between husband and wife for damages resulting from some wrongful or negligent act of the defendant, and in some jurisdictions it has been so construed, usually on the ground that, with the disappearance of the fiction of identity, the reason for the rule denying persons in the relation of husband and wife the right to sue each other in tort ceased. But that view has been rejected by what seems to be the weight of authority, not only upon the technical and artificial ground that the identity of husband and wife persists in its original vigor until it has been completely dissolved by express legislative mandate, in respect to all matters which the Legislature has not expressly included within the meaning of the emancipatory statutes, but upon the broader sociological and political ground that it would introduce into the home, the basic unit of organized society, discord, suspicion and distrust, and would be inconsistent with the common welfare. David, 161 Md. at 534-35, 157 A. 755 (citations omitted). In Gregg v. Gregg, 199 Md. 662, 87 A.2d 581 (1952), the Court rejected the David Court's reasoning as artificial, explaining that [i]t applies to a post-bellum situation a theory which is clearly only applicable to conditions prior to the difficulty which caused the bringing of the legal action. After discord, suspicion and distrust have entered the home, it is idle to say that one of the parties shall not be allowed to sue the other because of fear of bringing in what is already there. Id. at 667, 87 A.2d 581. The Court concluded, nevertheless, that "these ancient theories which form a part of the common law have to be followed by us unless they have been changed by legislative action, and the clear import of the decision in the David case is that the emancipatory statutes must be strictly construed." Id. The following year the Court reiterated that "[i]t is clear that Maryland will not entertain a suit by one spouse against the other for his or her tort, committed during the marital status." Tobin v. Hoffman, 202 Md. 382, 391, 96 A.2d 597 (1953). In Lusby, however, the Court changed the rule. See Lusby, 283 Md. at 358, 390 A.2d 77. In Lusby, Ms. Lusby's husband carjacked her at gunpoint, assaulted and raped her, then helped two of his friends try to rape her. Id. at 336, 390 A.2d 77. Ms. Lusby then sued her husband in tort. The trial court dismissed the action on the basis of interspousal immunity. Id. In reversing the trial court, the Court of Appeals looked to other states for guidance regarding the *142 abrogation of interspousal immunity for tort actions. The Court quoted Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976), in which the Massachusetts Supreme Court stated: "We conclude therefore that it is open to this court to reconsider the common law rule of interspousal immunity and, having done so, we are of opinion that it should no longer bar an action by one spouse against another in a case such as the present one. We believe this result is consistent with the general principle that if there is tortious injury there should be recovery, and only strong arguments of public policy should justify a judicially created immunity for tortfeasors and bar to recovery for injured victims." Lusby, 283 Md. at 347, 390 A.2d 77 (quoting Lewis, 351 N.E.2d at 532). The Lusby Court further noted: Although the courts have been divided on this issue, the commentators have been nearly unanimous in their criticism of the common law rule of immunity. See, e.g., W. Prosser, Handbook of the Law of Torts, § 122 (4th ed. 1971) (At 864 Prosser states, "The devastating attack on the old rule found in a number of recent decisions seems to leave no possible justification for it except that of historical survival."); 1 F. Harper & F. James, The Law of Torts § 8.10 (1956) (At 645 the authors state, "The rule denying recovery has been applied literally and blindly in many cases where the reason for the rule could not possibly apply inasmuch as there was no home to disrupt and no domestic harmony to disturb." At 646 they state, "The metaphysical and practical reasons which prevented such actions at common law are no longer applicable."); and McCurdy, Personal Injury Torts Between Spouses, 4 Vill. L.Rev. 303 (1959). In the latter article Professor McCurdy states: "There is no reason to think that in the case of intentional, wilful, and wanton injury an action would disrupt domestic harmony, since the conduct leading to the action has already caused the disruptions; and indeed there is every reason to think that denial of an action might be more disruptive in that it might lead to resort to other admittedly available redress such as to be found in the criminal and divorce law. Besides, a substantial number of states have for years allowed such interspousal tort actions either by decision or by express statute and it would be impossible to demonstrate that more domestic disharmony exists because of it." Lusby, 283 Md. at 350-51, 390 A.2d 77 (footnote omitted). The Lusby Court observed: "[I]n none of the prior Maryland cases has there been an allegation of an intentional tort, much less the outrageous conduct here set forth. Moreover, at no time since Furstenburg has the Court examined the foundation upon which our holdings rest." Id. at 352, 390 A.2d 77 (citation omitted). The Court then recalled the U.S. Supreme Court's 1910 decision in Thompson, and concluded that Justice Harlan's dissent, in which Justices Holmes and Hughes joined, was more persuasive than the majority opinion. Id. The Lusby Court quoted Justice Harlan: "In my opinion these statutory provisions, properly construed, embrace such a case as the present one.... The statute enables the married woman to take, as her own, property of any kind, no matter how acquired by her, as well as the avails of her skill, labor or personal exertions, `as absolutely as if she were unmarried. It then confers upon married women the power to engage in any business, no matter what, and to enter into contracts, whether engaged in business or not, and to sue separately upon those contracts. If the statute stopped here, there would be ground for holding that it did not authorize this suit. But the statute goes much farther. It proceeds to authorize married women `also' to sue separately for the recovery, security or protection of their property; still more, they may sue, separately, `for torts committed against Them, as fully and freely as if they were unmarried.' No discrimination is made, in either case, between the persons charged with committing the tort. No exception is made in reference to the husband, if he happens to be the party charged with transgressing the rights conferred upon the wife by the statute. In *143 other words, Congress, by these statutory provisions, destroys the unity of the marriage association as it had previously existed. It makes a radical change in the relations of man and wife as those relations were at common law in this District. In respect of business and property the married woman is given absolute control; in respect of the recovery, security and protection of her property, she may sue, separately, in tort, as if she was unmarried; and in respect of herself, that is, of her person, she may sue, separately, as fully and freely, as if she were unmarried, `for torts committed against her.' So the statute expressly reads. But my brethren think that notwithstanding the destruction by the statute of the unity of the married relation, it could not have been intended to open the doors of the courts to accusations of all sorts by husband and wife against each other; and, therefore, they are moved to add, by construction, to the provision that married women may `sue separately... for torts committed against them as fully and freely as if they were unmarried' these words: `Provided, however, that the wife shall not be entitled, in any case, to sue her husband separately for a tort committed against her person.'" Lusby, 283 Md. at 354-55, 390 A.2d 77 (emphasis in original) (quoting Thompson, 218 U.S. at 621-23, 31 S.Ct. 111). The Lusby Court then concluded: Much of what Mr. Justice Harlan said in his dissent in Thompson could be said by way of analysis of the Maryland act, as Judge Hammond implied for the Court in Fernandez, 214 Md. at 524, 135 A.2d 886, when he indicated that the literal language of Art. 45, § 5 would authorize the type of suit we here have before us. Thompson was decided nine years before the adoption of the 19th Amendment and Furstenburg, eight years after its adoption. One senses in Thompson a reluctance to permit change. Certainly Justices Harlan, Holmes, and Hughes, the dissenters in Thompson, constituted three of the great minds of the Supreme Court of the United States in 1910. We can conceive of no sound public policy in the latter half of the 20th-century which would prevent one spouse from recovering from another for the outrageous conduct here alleged. There certainly can be no domestic tranquility to be preserved in the face of allegations such as we have before us. It will be recalled that in Gregg, 199 Md. at 667, 87 A.2d 581, Chief Judge Marbury said for the Court, "After discord, suspicion and distrust have entered the home, it is idle to say that one of the parties shall not be allowed to sue the other because of fear of bringing in what is already there." It will further be recalled that he labeled as "artificial" the theory that "the identity of husband and wife persists in its original vigor until it has been completely dissolved by express legislative mandate...." The General Assembly has not heeded the suggestions by this Court that a new statute be enacted. Insofar as the interpretation to be given to the present statute is concerned, we have said many times that the cardinal rule of statutory construction is to ascertain and carry out the real legislative intent, and in ascertaining that intent the court considers the language of an enactment in its natural and ordinary signification. See, e.g., Howell v. State, 278 Md. 389, 392, 364 A.2d 797 (1976), and the cases there cited. For purposes of our decision here today, however, we need not be involved with statutory construction nor need we be involved with our prior cases other than for dicta appearing in them to the effect that one spouse may not sue another for tort. None of our prior cases has involved an intentional tort. We find nothing in our prior cases or elsewhere to indicate that under the common law of Maryland a wife was not permitted to recover from her husband in tort when she alleged and proved the type of outrageous, intentional conduct here alleged. Note that under the common law in England as reflected in Blackstone it was under "the old common law" that a husband "might give his wife moderate correction." (Emphasis added.) The type of action in the case at bar not being forbidden by the common law of this State or any statute of *144 this State, it follows that the trial court erred. Lusby, 283 Md. at 357-58, 390 A.2d 77 (footnote omitted). In the next case to address interspousal immunity, Linton v. Linton, 46 Md.App. 660, 420 A.2d 1249 (1980), this Court observed that "Maryland has steadfastly adhered to the common law doctrine of interspousal immunity in tort cases." Id. at 664, 420 A.2d 1249. The Court nevertheless acknowledged that "in Lusby v. Lusby, [the Court of Appeals] recognized an exception to the doctrine whenever the tort committed against the spousal victim is not only intentional, as in assault and battery, but "outrageous," as where the errant spouse's conduct transcends common decency and accepted practices." Linton, 46 Md.App. at 664, 420 A.2d 1249 (citation omitted). The Court pointed out that the holding in Lusby, which was limited to what it characterized as "outrageous, intentional torts," represented merely a "small gap" in the rule of interspousal immunity. Id. A few years later, however, the Court of Appeals created a chasm out of the small gap when it expanded the abrogation of interspousal immunity to negligence cases. Boblitz v. Boblitz, 296 Md. 242, 275, 462 A.2d 506 (1983). The Court reviewed decisions in the few states retaining the interspousal immunity doctrine and reviewed decisions from the states that had abrogated the doctrine fully and partially.[3]Id. at 253-75, 462 A.2d 506. The Court quoted the Restatement (Second) of Torts, which approved abrogation of the doctrine: "Section 895F. Husband and Wife (1) A husband and wife is not immune from tort liability to the other solely by reason of that relationship. * * * * Comment: * * * * f. Abrogation. The last two decades have witnessed the definite rejection and abolition of the immunity between husband and wife in its entirety in a substantial number of jurisdictions. Numerous courts have followed a dissenting opinion of Mr. Justice Harlan in Thompson v. Thompson, (1910) 218 U.S. 611 [31 S.Ct. 111, 54 L.Ed. 1180], and have held that the Married Women's Acts and the position of equality in which they were intended to place the spouses have removed all reason and justification for the immunity, and that one spouse is subject to liability to the other for any tort whether it is to property or to the person. The number of these decisions has been on the increase in recent years and has been encouraged by the spread and general use of liability insurance, particularly in automobile cases. The indications are clear that this is the future state of the law in all states...." Id. at 271-72, 462 A.2d 506 (quoting Restatement (Second) of Torts § 895F). The Court then discussed Lusby and concluded: In capsulation, the opinion in Lusby, supra, pointed out (1) the current invalidity of the disabilities imposed upon women by the original rule of law; (2) that the great minds of Supreme Court Justices Harlan, Holmes and Hughes had dissented from the narrow interpretation of the District of Columbia Married Womens [sic] Act in Thompson v. Thompson, supra; (3) that Chief Judge Marbury [in Gregg ]was rightly critical of the reasons for decision in the early cases; (4) that Judge Hammond's observation [in Fernandez ] that the literal language of Article 45, Section 5 would authorize tort actions was quite correct and in accord with the view of the dissenters in Thompson, supra; and (5) that since the decision in Stokes [v. Taxi Operators Ass'n, 248 Md. 690, 237 A.2d 762] in 1968 there has been a parade of cases in *145 which courts have altered the previous common law rule. Boblitz, 296 Md. at 272-73, 462 A.2d 506 (footnotes omitted). Noting that the Lusby Court found it unnecessary to rule upon the question of the continuing viability of the interspousal immunity rule in general negligence cases, the Court stated: In the subject case the issue whether the rule [of interspousal immunity] continues to be viable is clearly before us. We share the view now held by the vast majority of American States that the interspousal immunity rule is unsound in the circumstances of modern life in such cases as the subject. It is a vestige of the past. We are persuaded that the reasons asserted for its retention do not survive careful scrutiny. They furnish no reasonable basis for denial of recovery for tortious personal injury. We find no subsisting public policy that justifies retention of a judicially created immunity that would bar recovery for injured victims in such cases as the present. Id. at 273, 462 A.2d 506. Although "mindful of the value of the doctrine of stare decisis and aware that for reasons of certainty and stability, changes in decisional doctrine ordinarily should be left to the Legislature," id. at 273, 462 A.2d 506, the Court pointed out that "[t]he doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." Id. at 274, 462 A.2d 506 (quoting White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966)). The Court concluded: In cases such as the present we have no legislative barrier to abrogation of this outmoded rule of law. Indeed, after legislative passage and approval by the people of Article 46 of the Declaration of Rights any ancient deprivation of rights based upon sex would contravene the basic law of this State. By the same token, we recognize that "conduct, tortious between two strangers, may not be tortious between spouses because of the mutual concessions implied in the marital relationship." Decision in such cases necessarily will be determined on a case to case basis. Id. at 274-75, 462 A.2d 506 (citation omitted). This Court further defined the limits of the interspousal immunity doctrine in Bender v. Bender, 57 Md.App. 593, 471 A.2d 335 (1984), explaining that "[a]lthough Lusby does not explicitly define the extent of the change it directs in the law of interspousal immunity, preferring a case by case approach, it clearly paves the way for such actions involving intentional infliction of personal injury." Id. at 600-01, 471 A.2d 335. Implicitly rejecting the analysis in Linton, the Bender Court declared that Judge Smith's use of the word "outrageous" aptly describes the nature of the offense in Lusby. The use of a descriptive adjective, however, does not require that the same word be grafted upon each succeeding tortious act in order to establish a cause of action. We believe the Court's primary focus in Lusby was its recognition that henceforth in Maryland intentional torts would form a basis for interspousal suits at law.... The use of the word "outrageous," in our view, appropriately characterized the offense, but the Court was sanctioning claims for intentional torts and not claims limited to outrageous torts.... The severity [of the tort] is a matter of damages, not of liability. Id. at 601-02, 471 A.2d 335. The Court then affirmed the trial court's "finding that an intentional tort was committed under circumstances which render legally inappropriate the interposition of interspousal immunity." Id. at 602, 471 A.2d 335. A review of Lusby, Boblitz, and Bender leads us to the conclusion that interspousal tort suits are now permitted in Maryland in both negligence and intentional tort cases. Neither Lusby nor Bender indicates which cases, under the suggested "case-bycase" approach, would be precluded, or on what basis. Nothing in the previous decisions indicates that the particular claim at issue in this case, intentional infliction of emotional distress, would be precluded. As one commentator suggested, "[t]herefore, in *146 most states it may now be argued that it `logically' follows from the end of [interspousal] immunity that, because section 46 torts [intentional infliction of emotional distress] are generally recognized, they should be available to spouses as well, or at least that the burden of persuasion lies with those who reject this position." Ira Mark Ellman and Stephen D. Sugarman, Spousal Emotional Abuse as a Tort, 22 Md. L.Rev. 1268, 1283 (1996). In this case, as with most other domestic tort cases, discord, suspicion, and distrust have already entered the Doe home. The historic public policy rationale precluding interspousal suits seems inane when there is no home to disrupt and no domestic tranquility left to preserve. Interspousal immunity is as much a vestige of the past in this instance as in the circumstances considered in Lusby and Boblitz. The Court of Appeals has not carved out an exception to the abrogation of interspousal immunity for intentional infliction of emotional distress or fraud, and neither shall we. The Best Interests of the Children The trial court in the case sub judice followed a different path of logic than we follow. The trial court read into Lusby`s pronouncement that "no sound public policy in the latter half of the 20th-century ... would prevent one spouse from recovering from another for the ... conduct ... alleged" an implicit statement that as yet unidentified and sound public policy considerations may preclude interspousal suits for intentional torts in cases such as this one. The trial court stretched the scope of this interspousal suit to envelop the entire family unit, and concluded that regardless of the abrogation of interspousal immunity, public policy regarding the children mandated a dismissal of this action. We find unpersuasive the circuit court's reliance on "the best interests of the children" as a public policy basis to preclude this interspousal suit for fraud and intentional infliction of emotional distress. In barring Mr. Doe's suit as a matter of public policy, the circuit court relied primarily on Pickering v. Pickering, 434 N.W.2d 758 (S.D.1989). In Pickering, Ms. Pickering had an affair with a co-worker and became pregnant. Id. at 760. She then seduced her husband so that he would believe he was the father of the child. Id. The truth came out when the child was four months old, whereupon Mr. Pickering filed for divorce and commenced a tort action against Ms. Pickering and her paramour. Id. In his tort action Mr. Pickering alleged intentional infliction of emotional distress, fraud and deceit, negligent misrepresentation, tortious interference with a marital contract, and alienation of affections. Id. Regarding the claim for intentional infliction of emotional distress, the Pickering court baldly asserted, "[w]e believe the tort of intentional infliction of emotional distress should be unavailable as a matter of public policy when it is predicated on conduct which leads to the dissolution of a marriage." Id. at 761. In Maryland, however, the Court of Appeals has not limited interspousal tort suits in such a way as to exclude those suits in which the defendant's conduct leads to the dissolution of a marriage. See Lusby, 283 Md. at 357, 390 A.2d 77. In Lusby, for example, where the husband forced his wife's car off the road, hit her, forcibly raped her, and helped two of his friends try to rape her, the Court of Appeals did not appear concerned that the suit arose from conduct that could end the parties' marriage, acknowledging that "[t]here certainly can be no domestic tranquility to be preserved in the face of allegations such as we have before us." Id. We find the Pickering court's rationale unpersuasive. The Pickering court denied relief to the husband for another reason as well: In South Dakota, an action for alienation of affections provides a remedy for intentional infliction of emotional distress, thus a separate action is not necessary. Id. In Maryland, however, the cause of action for alienation of affections has been abolished. Miller v. Ratner, 114 Md.App. 18, 35, 688 A.2d 976, cert. denied, 345 Md. 458, 693 A.2d 355 (1997). As to Mr. Pickering's claim of fraud and deceit, the court also concluded that the claim should be barred as a matter of public *147 policy. Pickering, 434 N.W.2d at 761. The Pickering court relied on Richard P. v. Superior Court, 202 Cal.App.3d 1089, 249 Cal. Rptr. 246 (1988), in which the California court, after considering a similar action, concluded that any wrong which has occurred as a result of [the defendant's] actions is not one that can be redressed in a tort action. We do not doubt that this lawsuit emanated from an unhappy situation in which the real parties in interest suffered grief. We feel, however, that the innocent children here may suffer significant harm from having their family involved in litigation such as this and that this is exactly the type of lawsuit which, if allowed to proceed, might result in more social damage than will occur if the courts decline to intervene. "We do not believe that the law should provide a basis for such interfamilial warfare." Pickering, 434 N.W.2d at 761-62 (citing Richard P., 202 Cal.App. 3d at 1094, 249 Cal.Rptr. 246). The Pickering court worried that allowing Mr. Pickering to maintain his suit could cause the child "to suffer significant harm" and concluded that "[t]his innocent party, who is now three years old, should not be subjected to this type of `interfamilial warfare.'" Pickering, 434 N.W.2d at 762. Relying on this analysis, the trial court in the instant case determined that allowing Mr. Doe to proceed with his tort claims would not be in the best interests of the twins. We consider "the best interests of the children" to be a red herring [4] in the analysis of whether to permit an interspousal suit for intentional infliction of emotional distress, fraud, and deceit. Although this sometimes elusive doctrine is usually an important consideration in most family law matters, the counts of the complaint with which this appeal is concerned do not implicate this doctrine. This is not a child custody case, where the appropriate standard is the best interest of the child. See Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986). Here, the children are neither parties nor witnesses in the counts of the complaint at issue here; therefore, the standard does not apply. We note that in the instant case, there is no question regarding paternity. The DNA tests show that Mr. Doe is not the father of the twins. Thus, contrary to Ms. Doe's argument, this is not a case in which "it would not be in the child's best interest to have the blood tests reveal that a man who has been the de facto father in the whole of the child's life is not the biological father...." Monroe v. Monroe, 329 Md. 758, 767, 621 A.2d 898 (1993). Here, the blood tests have been performed and the results announced; it is a fait accompli. In a case similar to the one at hand, where the child's mother deliberately misrepresented to the plaintiff for eight years that he was the child's father, the Illinois court rejected the "best interest of the child" as a basis for precluding a suit for intentional infliction of emotional distress. Koelle v. Zwiren, 284 Ill.App.3d 778, 220 Ill.Dec. 51, 58, 672 N.E.2d 868, 875 (1996). The Court stated that the "[d]efendant claims that public policy disfavors plaintiff's lawsuit because `intrafamilial warfare' may be harmful to the child." Id. The Illinois court concluded, however, that "any harm [the child] may have suffered from this alleged situation would have been caused by defendant.... If anything, plaintiff's lawsuit seeks to limit the harm caused [and to allow] plaintiff and [the child] to continue their loving father-daughter relationship." Id. Here, as well, despite Ms. Doe's allegedly duplicitous conduct, Mr. Doe proposes to maintain a loving and close relationship with the twins, and he has requested permanent custody of them. Furthermore, the innocent parties in this case, the twins, will not be subjected to any more intrafamilial warfare in a tort action than that which would be present during the *148 companion divorce action. Many of the same factual allegations regarding Ms. Doe's alleged deception will be presented during the divorce. Because the Court of Appeals has abrogated interspousal immunity in intentional tort cases without mentioning any reservation for cases in which the parties happen to have children, and because we find the "best interests of the children" are not more implicated by the claims before us than similar claims in a divorce proceeding, we find no public policy reason to preclude this interspousal tort suit. As the Illinois Court of Appeals stated in Koelle: "We find that public policy does not serve to protect people engaging in behavior such as that with which plaintiff's complaint charges defendant, and we will not allow defendant to use her daughter to avoid responsibility for the consequences of her alleged deception." Koelle, 220 Ill.Dec. at 58, 672 N.E.2d at 875. Here, too, Ms. Doe cannot use the twins as a shield in order to avoid potential liability for her allegedly tortious conduct towards her husband. Availability of Remedy Through Divorce Suit (Count I) When dismissing Mr. Doe's tort claims, the trial court reasoned that Mr. Doe "is not without a remedy," finding that "[t]he conduct of [Ms. Doe] ... will impact on the Court's willingness to grant a monetary award. [Mr. Doe] can be compensated for the wrongs he has suffered without litigating these issues again in tort." The court then concluded that "[i]t is simply not practical to allow these claims to be litigated as intentional torts when a remedy can be provided within the divorce action." We disagree. Tort actions and divorce proceedings are intended to effect different purposes, with different remedies. The Court of Appeals recognized this distinction in Boblitz: "[N]o court in this day and age subscribes seriously to the view that the abrogation of marital immunity for tortious injury is `unnecessary' because redress for the wrong can be obtained through other means. This additional, `alternative remedy" theory was advanced generations ago as a justification for retaining interspousal tort immunity in Thompson v. Thompson, and was even then the subject of dissent. The criminal law may vindicate society's interest in punishing a wrongdoer but it cannot compensate an injured spouse for her or his suffering and damages. Divorce or separation provide escape from tortious abuse but can hardly be equated with a civil right to redress and compensation for personal injuries." Boblitz, 296 Md. at 267, 462 A.2d 506 (citations omitted) (emphasis added) (quoting Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951, 962 (1978)). Regarding the difference in remedies, one scholar explained: "A tort action is not based on the same underlying claim as an action for divorce. The purpose of a tort action is to redress a legal wrong in damages; that of a divorce action is to sever the marital relationship between the parties, and where appropriate, to fix the parties' respective rights and obligations with regard to alimony and support, and to divide the marital estate. Although a judge in awarding alimony and dividing marital property must consider, among other things, the conduct of the parties during the marriage, the purpose for which these awards are made do not include compensating a party in damages for injuries suffered. The purpose of an award of alimony is to provide economic support to a dependent spouse, that of the division of marital property is to recognize and equitably recompense the parties' respective contributions to the marital relationship." Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam. L.Q. 127, 131 (1990) (quoting Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151, 153 (1988)). Because the divorce action simply divides the assets of the marriage, while the interspousal tort suit "`impose[s] on married parties accountability for their actions to the same extent imposed on other members of society[,]'... the injured spouse should be adequately compensated in both proceedings, for the injuries received as a result of the tort and for his or her contributions to the marriage." Kawasaki, supra, at 419-20 (quoting Barbara H. Young, Interspousal Torts and *149 Divorce: Problems, Policies, Procedures, 27 J. Fam. L. 489, 511 (1988-89)). Here, the trial court intellectually merged the two actions, concluding that a marital award could compensate Mr. Doe for both the tort injuries and his contributions to the marriage. After a review of the Family Law Article provisions regarding monetary awards, however, we find that limiting Mr. Doe's remedy to a possible marital award may not fully compensate him for his claimed tort injuries. When calculating a monetary award, the court must apply a three-step analysis. First, the court must characterize all property owned by the parties as either marital or non-marital. Md.Code (1984, 1991 Repl.Vol., 1997 Supp.), § 8-203 of the Family Law Article ("FL"). Second, the court must determine the value of all marital property. FL § 8-204. Finally, the trial court may "grant a monetary award ... as an adjustment of the equities and rights of the parties concerning marital property, whether or not alimony is awarded." FL § 8-205(a). The court must take into account the following factors in determining the amount: (1) the contributions, monetary and nonmonetary, of each party to the well-being of the family; (2) the value of all property interests of each party; (3) the economic circumstances of each party at the time the award is to be made; (4) the circumstances that contributed to the estrangement of the parties; (5) the duration of the marriage; (6) the age of each party; (7) the physical and mental condition of each party; (8) how and when specific marital property or interest in the pension, retirement, profit sharing, or deferred compensation plan, was acquired, including the effort expended by each party in accumulating the marital property or the interest in the pension, retirement, profit sharing, or deferred compensation plan, or both; (9) The contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety; (10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and (11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both. FL § 8-205(b) (emphasis added). Sections 8-205(b)(4) and (11) seem to suggest that the court may consider Ms. Doe's allegedly deceitful conduct and make a fair and equitable monetary award to Mr. Doe accordingly. But the decision to make a monetary award is a discretionary one. Therefore nothing compels the trial court to make any award to Mr. Doe. Even if the court does order a monetary award, however, Mr. Doe may still not be made whole, because a monetary award is limited to the amount of the marital property. Watson v. Watson, 77 Md.App. 622, 639, 551 A.2d 505 (1989). Section 8-202(a)(3) "expressly prohibits the divorce court from transferring ownership of property, real or personal, from one spouse to the other.... [Thus, a monetary award may only be made] provided there is sufficient marital property to support such an award." Kline v. Kline, 85 Md.App. 28, 44, 581 A.2d 1300 (1990). As we stated in Watson, "the right to a monetary award pursuant to § 8-205 is not an interest in the estate or property of one's spouse. Rather, it is a remedy provided to divorcing spouses to seek financial compensation to cure inequity in the distribution of property acquired during the marriage according to how that property is titled." Id. at 634, 551 A.2d 505. We have also held that if the spouse to whom the court intends to grant a monetary award already owns, and thus retains, any marital property, the award cannot exceed the value of the marital property owned by the other spouse. Jandorf v. Jandorf, 100 Md.App. 429, 441, 641 A.2d 971 (1994). Marital property is defined as "the property, however titled, acquired by 1 or both *150 parties during the marriage." FL § 8-201(e)(1). Excluded from the definition of marital property is property acquired before the marriage; acquired by inheritance or gift from a third party; excluded by valid agreement; or directly traceable to any of these sources. FL § 8-205(e)(3). The Court of Appeals has explained that this section, which sets forth an exclusive list of nonmarital property, indicates a legislative intent that the value of certain property not be subject to equitable distribution, and that the interests of spouses making nonmonetary contributions be protected without depriving the other spouse of nonmarital property. To permit nonmarital property to be "transmuted" into marital property and, therefore, to be subject to equitable distribution deprives a spouse of nonmarital property and is, therefore, contrary to that legislative intent. Harper v. Harper, 294 Md. 54, 80, 448 A.2d 916 (1982). Therefore, any potential monetary award will be circumscribed by the pool of assets that constitute the marital property. Here, Mr. Doe alleged that Ms. Doe has "substantial common stockholdings" but does not describe the amount or value of the couple's marital property. Based on allegations in the complaint, it is reasonable to infer that Ms. Doe's stocks may be nonmarital property. If the parties have no marital property, the court cannot order a marital award, Ms. Doe's nonmarital property notwithstanding. Even if the parties do have marital property, the trial court may decide not to make a marital award or to make an award that is insufficient to compensate Mr. Doe for his claimed tort injuries. Given the procedural posture in which the instant case reaches us, and the undeveloped state of the record as to the divorce action, we cannot say with certainty that a monetary award could satisfy Mr. Doe's claimed tort-based injuries. If, however, Mr. Doe's tort action proceeds, he may be able to reach Ms. Doe's nonmarital property, if any, through a damage award. As one commentator suggested, [i]f the client's spouse has ample assets, and the client is not likely to qualify for maintenance, then a tort judgment is desirable, particularly since one can execute it against both the tortfeasor's marital and nonmarital estate.... The tort judgment offers the injured spouse the possibility of a larger recovery [than a divorce proceeding], because it is "limited neither by the size of the marital estate nor by the spouse's income, but only by the quality of the wrong itself and the quantity of damages." Kawasaki, supra, at 419-20 (quoting Barbara H. Young, Interspousal Torts and Divorce: Problems, Policies, Procedures, 27 J. Fam. L. 489, 511 (1988-89)). Regardless of the amount of the marital property, whether the trial court may fashion a monetary award as damages, compensatory or punitive, is open to question. Section 8-205(b)(4) allows consideration of the circumstances leading to the estrangement of the parties, which suggests that the court may consider Ms. Doe's conduct in making a monetary award. Section 8-205(b)(11) also allows the court to consider other factors the court deems necessary or appropriate, providing a catch-all for consideration of other significant facts. Furthermore, in Dobbyn v. Dobbyn, 57 Md.App. 662, 680, 471 A.2d 1068 (1984), this Court pointed out that when the Governor's Commission on Domestic Relations Laws discussed the purpose of the monetary award factors, a dispute arose whether to include marital misconduct or fault as a factor. Id. The Commission rejected the notion that fault was not a relevant factor in the equitable distribution of marital property and stated: As virtue, embodied in the respective contributions of the spouses to the well-being of the family which is involved in the first factor, is relevant to the rights and equities of the parties in their marital property, so also is its correlative of fault, embodied in the fourth factor, which refers to the circumstances and facts which contributed to their estrangement. Indeed, it is difficult to see how an adjustment of the rights of the parties could be thought of as equitable, if it failed to consider either of these factors, together with the others named in this Section. It is not suggested that either of these concepts is easy to calibrate, or that its measurement comes readily to *151 hand, but certainly equity requires that the listed factors be weighed by the Court and that the parties' contribution to the familial well-being and their contribution to familial ill-being both be considered. The Commission considers that the nine [now eleven] factors set forth here will go as far as a statute can, in providing for a truly fair and equitable adjustment of the parties' respective rights concerning their marital property. (Report of the Governor's Commission on Domestic Relations Laws, at 11 (1978)). Dobbyn, 57 Md.App. at 680 n. 6, 471 A.2d 1068. Similarly, in Court v. Court, 67 Md.App. 676, 509 A.2d 693 (1986), this Court rejected Mr. Court's argument that fault was totally irrelevant in setting the amount of a monetary award. Pointing to the factor that allows consideration of the circumstances leading to the parties' estrangement, this Court found that the trial court appropriately considered Mr. Court's decision to resign from his job; his decision to sail a ship from Turkey to the United States, a voyage of ten months duration; the requirement he imposed upon his family to move from their Annapolis home to a cottage in Galesville; and his extra-marital affairs with a female crew member. Id. In Skrabak v. Skrabak, 108 Md.App. 633, 673 A.2d 732, cert. denied, 342 Md. 584, 678 A.2d 1048 (1996), however, this Court implied that using a monetary award to penalize a party might be inappropriate. Id. at 657, 673 A.2d 732. The appellant, Dr. Skrabak, complained that the trial judge had used "his power to enter a monetary award as a means of punishing " him. Id. (emphasis in original). In its memorandum opinion, the trial court stated that "it had the right and the obligation under FL § 8-205(b)(11) to consider `other factors that are necessary or appropriate to consider in order to arrive at a fair and equitable award.'" Id. The trial court then described inconsistencies between Dr. Skrabak's deposition testimony and his trial testimony, his actions in apparently attempting to hide income to defraud his wife, and his attempt to obtain fake identification for his 19-year old girlfriend so that she could enter a nightclub with him. Id. Judge Salmon, writing for this Court, noted that "[c]ircumstances not reasonably related to the joint enterprise of the marital unit or expressly included as factors, are not ordinarily relevant and should not be considered when fashioning a fair and equitable monetary adjustment." Id. (quoting Dobbyn, 57 Md.App. at 681, 471 A.2d 1068). Judge Salmon then suggested that "[i]t would appear, at least on this record, that some of the factors considered by the trial court cannot fairly be characterized as `reasonably related to the joint enterprise of the marital unit.'" Skrabak, 108 Md.App. at 657, 673 A.2d 732. No further elaboration was provided, however, because the Court reversed the monetary award on other grounds. Id. at 658, 673 A.2d 732. We are not certain where the line lies between "considering" the circumstances that lead to the estrangement of the parties and "punishing" the party at fault for the marital breakup. We mention our concern regarding this distinction only in the context of deciding whether the trial court in this case correctly assumed that Mr. Doe would have adequate redress for his injuries through the granting of a monetary award. Because this case is before us as a result of a motion to dismiss all counts of the complaint save the divorce count, we know neither the amount of the marital property nor how and why the trial court will eventually decide to distribute it. From our vantage point, however, we see the possibility, at least, that Mr. Doe's claimed injuries may not be fully compensated by a monetary award. Thus, we cannot say that his tort claims are precluded because he has another, complete, remedy. II. The trial court found that even if Mr. Doe's claims for intentional infliction of emotional distress (Count III) and fraud (Count II) were not barred by public policy, he nevertheless failed to plead the facts necessary to maintain either action. We now turn to the specific elements of each claim. *152 Intentional Infliction of Emotional Distress (Count III) Maryland recognizes the tort of intentional infliction of emotional distress. Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977). To establish such a claim, four elements are necessary: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; [and] (4) The emotional distress must be severe. Miller, 114 Md.App. at 57, 688 A.2d 976 (quoting Batson v. Shiflett, 325 Md. 684, 734, 602 A.2d 1191 (1992)). The elements that must be shown in Maryland are essentially the same as the elements set forth in of the Restatement (Second) of Torts § 46 (1965). The trial court dismissed Mr. Doe's claim, finding his allegations insufficient to state a claim for intentional infliction of emotional distress because the first two elements were not met: The first element of the tort requires that the conduct be intentional or reckless. While Defendant's [Ms. Doe] alleged deception was, most likely, purposeful, it was not intended to inflict severe emotional distress on the Plaintiff. Nor can the misrepresentation be proven to be reckless in its effect. Given the facts of this case, Plaintiff's feelings and possible reaction are not the only issues to consider. The emotional and financial well-being of A.E. Doe and Z.S. Doe are also at issue and what is in their best interest must be considered. The decision to disclose or not disclose the true identity of their father could have profound effects on A.E. Doe and Z.S. Doe. In addition, given that almost three and one-half years had passed before the Plaintiff discovered the twins were not his biological children, it cannot be argued that Defendant engaged in the deception simply to harm the Plaintiff or with reckless indifference to his feelings. Thus, Plaintiff cannot satisfy the first element of the tort as a matter of law. While the conduct alleged in this case is reprehensible and should not be condoned, it does not rise to the level of extreme and outrageous required by the second element of the tort. As every trial judge knows, spouses in the throes of domestic turmoil often do horrible things to one another. In the context of everyday life, and probably in the mind of the average juror, these acts would be considered unusually cruel and outrageous. Unfortunately, they are the sad reality of divorce and commonplace in the domestic arena. Misrepresenting the paternity of children born during the course of a marriage is not an uncommon occurrence. One need only look to the case law to realize the frequency of such deception. Moreover, absent DNA testing or some genetic anomaly, it is often difficult to know, with certainty, the true paternity of any child. As such, Defendant's failure to disclose that Plaintiff was not the biological father of A.E. Doe and Z.S. Doe does not qualify as extreme and outrageous within the meaning of the tort. Plaintiff makes much of the fact that the alleged paramour was named as godfather to the children—"a blasphemous and fraudulent act upon the church and God." What occurs between the Defendant, the church and God is not within the jurisdiction of this Court. Outrageous conduct, for purposes of this claim, is not that which is offensive to religion, but that which is offensive to the law. (footnote omitted) (citation omitted). The court concluded that Ms. Doe's failure to disclose to Mr. Doe that he is not the biological father of children born during the marriage cannot serve as the predicate for an action for intentional infliction of emotional distress because, "[w]hile the conduct complained of in this case is outrageous[,] it must be viewed in the context of a domestic dispute where the interests of the children must be paramount." Intentional and Reckless The trial court concluded that Mr. Doe's allegations did not satisfy the first element of the tort, stating that although Ms. Doe's conduct was "most likely, purposeful, it was not intended to inflict severe emotional distress *153 on the Plaintiff." The court further stated: "Nor can the misrepresentation be proven to be reckless in its effect." We disagree. Comment i to Section 46 of the Restatement of Torts, pertaining to intention and recklessness, states that when the actor "desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct," he or she is liable. The actor will also be liable if he or she "acts recklessly ... in deliberate disregard of a high degree of probability that the emotional distress will follow." The drafters of the Restatement provided two illustrations of this principle: [1] During A's absence from her home, B attempts to commit suicide in A's kitchen by cutting his throat. B knows that A is substantially certain to return and find his body, and to suffer emotional distress. A finds B lying in her kitchen in a pool of gore, and suffers severe emotional distress. B is subject to liability to A. [2] The same facts as in Illustration [1], except that B does not know that A is substantially certain to find him, but does know that there is a high degree of probability that she will do so. B is subject to liability to A. Restatement (Second) of Torts § 46, cmt. i, illus. 15 & 16. Assuming the facts of Mr. Doe's complaint to be true, we conclude that Mr. Doe's complaint contains material facts that satisfy this element of the tort. In Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412 (1989), Mr. Fletcher brought suit against Ms. Ruth for intentional infliction of emotional distress when she cut off visitation and disproved Mr. Fletcher's paternity of her five year old child. Id. at 367, 377 S.E.2d 412. When considering whether this element of the tort was satisfied, the Virginia Supreme Court stated: We fail to discern from this record any proof that [Ms. Ruth's] conduct was "intentional or reckless." There is no proof that she set out to convince [Mr. Fletcher] that the child was his, and to cause him to develop a loving relationship with the child so that in the end, she could hurt [Mr. Fletcher] by taking the child away from him forever. Such proof was required to satisfy the "intentional or reckless" prong.... Id. at 373, 377 S.E.2d 412. In contrast to the facts in Ruth, here Mr. Doe alleged that "[t]hroughout the course of their marriage, [Ms. Doe] through day to day statements and conduct deliberately, intentionally and with full knowledge of the truth, deceived and lied to [Mr. Doe] misleading him to believe that he was the natural father of all three children born during the course of the parties' marriage." Mr. Doe also stated in his complaint that he "loves each of the children as his or her natural father, [has] developed a close and loving relationship with each of them...." Furthermore, Ms. Doe's letter to her paramour, which Mr. Doe discovered, discusses the children's true paternity and indicates that, even had Mr. Doe not stumbled upon this letter, the truth most likely would have been revealed, thereby in effect "taking the children away from him forever." These facts are sufficient to allege that, even if Ms. Doe was not substantially certain that Mr. Doe would find out about her adulterous affair and the paternity of the twins, she did know that there was a high degree of probability that Mr. Doe would discover the truth. Extreme and Outrageous The trial court considered Ms. Doe's conduct "reprehensible," but did not believe it rose to the level of extreme and outrageous as required by the second element of the tort. Yet the court admitted that, to the average juror, Ms. Doe's actions would be considered "unusually cruel and outrageous." The Restatement notes that [i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.... Where reasonable men may differ, it is for the jury ... to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Restatement (Second) Torts § 46 cmt. h. Our view is that Ms. Doe's conduct may reasonably be regarded as extreme and outrageous *154 as defined by the Restatement. The trial court thought misrepresentation of paternity "not an uncommon occurrence" and implicitly concluded that because such occurrences are "the sad reality of divorce and commonplace in the domestic arena," they are therefore not outrageous. Again we disagree. Regardless of the frequency of this type of misrepresentation, we find that Mr. Doe's allegations pass the threshold test. A fact-finder therefore should be given the opportunity to decide whether Ms. Doe's actions in concealing her affair, concealing the children's paternity, and affirmatively misrepresenting Mr. Doe as the father of the twins in this particular case was sufficiently outrageous to result in liability. As the Court of Appeals acknowledged in Harris, whether a person's conduct is "extreme and outrageous" so as to satisfy the second element of the tort is "a particularly troublesome question." Harris, 281 Md. at 567, 380 A.2d 611. Comment d of Section 46 states that [t]he cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Restatement (Second) of Torts § 46 cmt. d. When determining whether conduct is extreme and outrageous, "it should not be considered in a sterile setting, detached from the surroundings in which it occurred." Harris, 281 Md. at 568, 380 A.2d 611. The personality of the person to whom the conduct is directed is a factor, as is the relationship between the plaintiff and the defendant. Id. at 568-69, 380 A.2d 611; see also Restatement (Second) Torts § 46 cmt. e (noting that "[t]he extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests"). When "the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress, his conduct will be carefully scrutinized by the courts." Harris, 281 Md. at 569, 380 A.2d 611. Nevertheless, the Court of Appeals has acknowledged that, when considering the tort of intentional infliction of emotional distress, "`recovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves,' " Batson v. Shiflett, 325 Md. 684, 734, 602 A.2d 1191 (1992) (citation omitted), thus echoing the Restatement comment that "liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Restatement (Second) of Torts § 46 cmt. d. We note the Court must exercise special caution when deciding actions for intentional infliction of emotional distress arising from conduct occurring in a marital context. As one court explained, Considerations that justify limiting liability for intentional infliction of emotional distress to only outrageous conduct also suggest a very limited scope for the tort in the marital context. Conduct intentionally or recklessly causing emotional distress to one's spouse is prevalent in our society. This is unfortunate but perhaps not surprising, given the length and intensity of the marital relationship. Yet even when the conduct of feuding spouses is not particularly unusual, high emotions can readily cause an offended spouse to view the other's misconduct as "extreme and outrageous." Thus, if the tort of outrage is construed loosely or broadly, claims of outrage may be tacked *155 on in typical marital disputes, taxing judicial resources. Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320, 1324-25 (App.1991). A review of Maryland cases addressing intentional infliction of emotional distress, both within and outside of the marital context, shows that we need not fear a flood of litigation resulting from claims that the position we take here is a loose or broad interpretation of what is extreme and outrageous. This Court, in Penhollow v. Board of Commissioners, 116 Md.App. 265, 695 A.2d 1268 (1997), recently summarized the circumstances in which a claim for intentional infliction of emotional distress has been recognized: In ... Figueiredo-Torres v. Nickel, 321 Md. 642, 584 A.2d 69 (1991), the Court upheld a claim for intentional infliction of emotional distress by a plaintiff whose psychologist was having sexual relations with the plaintiff's wife. With regard to the severity of the conduct, the court focused on the relationship between the plaintiff and defendant and stated: [A] jury may find extreme and outrageous conduct where a psychologist who is retained to improve a marital relationship implements a course of extreme conduct which is injurious to the patient and designed to facilitate a romantic, sexual relationship between the therapist and the patient's spouse. Id. at 654, 584 A.2d 69. The Court of Appeals also upheld a claim for intentional infliction of emotional distress in B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988). In that case, the defendant failed to disclose to the plaintiff with whom he was having sexual relations that he had active genital herpes. The plaintiff alleged that she had contracted the incurable disease from the defendant after engaging in sexual intercourse with him. In regard to the element of extreme and outrageous conduct, the Court noted that "the characteristics of the illness ... support the extreme and outrageous nature of [the defendant's] conduct." Id. at 144-45, 538 A.2d 1175. Some of the characteristics associated with genital herpes included extreme pain, development of cervical cancer, and problems with childbearing. In Young v. Hartford Accident & Indem. Co., 303 Md. 182, 492 A.2d 1270 (1985), the plaintiff was assaulted at work and suffered physical and emotional trauma as a result of the assault. She received disability payments for a period of time from the defendant, her employer's workers' compensation carrier, and remained under the care of Dr. Peck. The defendant refused to pay a portion of Dr. Peck's bill and insisted that the plaintiff undergo another psychological evaluation despite warning from Dr. Peck of the plaintiff's fragile condition. Following a second evaluation by a psychiatrist chosen by the defendant, the defendant refused to pay the plaintiff's medical bills. A few days later, she attempted suicide. The plaintiff ultimately brought suit against the defendant for intentional infliction of emotional distress. The Court held that "[i]f [the plaintiff] proves that `the sole purpose of Doctor Henderson's examination was to harass the Plaintiff into abandoning her claim, or into committing suicide,' a jury could find that that proof meets all of the elements of the tort as set forth in Harris." Young, 303 Md. at 198-99, 492 A.2d 1270. Penhollow, 116 Md.App. at 297-99, 695 A.2d 1268. In Penhollow, however, as in Miller, this Court found the defendant's conduct not sufficiently extreme and outrageous to support a claim for intentional infliction of emotional distress. Penhollow, 116 Md.App. at 299-300, 695 A.2d 1268. In Penhollow, a correctional officer complained that she had been subjected to different terms and conditions of employment on the basis of her sex and had been forced to work in an intimidating, hostile, and offensive work environment. Penhollow, 116 Md.App. at 270-71, 695 A.2d 1268. Ms. Penhollow alleged that she had not been treated according to her rank, that a co-worker had repeatedly made insulting comments to her on the basis of her sex, and that her shift hours were frequently changed, requiring her to work overtime hours that other employees were not required to work. *156 Id. at 272-73, 695 A.2d 1268. This Court found that [t]he case sub judice does not involve a special relationship between appellant and appellees as there was in Figueiredo-Torres v. Nickel. Appellees' conduct did not result in any physical manifestation that would be sufficient to show the outrageousness of the conduct as in B.N. v. K.K. Furthermore, there were no allegations that appellees were aware of or that appellant was in a fragile emotional state as in Young v. Hartford Accident & Indem. Co. Additionally, appellant has not alleged or given any proof of physical conduct of a sexual nature directed toward her. The conduct appellant complains of was strictly verbal, some of which was not even directed at her. We agree with the trial court that appellant failed to show that appellees' conduct was of such an extreme and outrageous nature as to satisfy the elements of the tort of intentional infliction of emotional distress. Id. at 299-300, 695 A.2d 1268. This Court also recently denied a claim for intentional infliction of emotional distress in Miller v. Ratner, 114 Md.App. at 59, 688 A.2d 976. In Miller, the plaintiff, who had lived with the defendant in a nonmarital relationship for three years at his home, became seriously ill with breast cancer. Id. at 21, 688 A.2d 976. She alleged that during the time she was undergoing radiation treatments, Mr. Ratner would repeatedly wake her up in the middle of the night and admonish her to leave, telling her that she was a financial burden and would soon die. Id. at 22, 688 A.2d 976. Mr. Ratner's brother would also telephone her, calling her "bitch," "whore," and a "one-breasted woman." Id. Ms. Miller alleged that Mr. Ratner threatened her with bodily harm if she did not leave his house. Id. This Court held that "we do not perceive their verbal actions alone to be, as nauseating as they are if true, of such egregiousness so as to satisfy the elements of the tort." Id. at 59, 688 A.2d 976. Additionally, in Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979), the Court of Appeals held that Mr. Vance's misrepresentation that he was divorced at the time of his marriage to Ms. Vance, which Ms. Vance did not discover until twenty years later, did not satisfy the elements of intentional infliction of emotional distress. The Court stated: Dr. Vance's negligent misrepresentation as to his marital status in 1956, followed by his subsequent concealment of that fact for almost twenty years, could not, of itself, have caused Muriel to suffer emotional distress because she had no knowledge of it. As Dr. Vance suggests, there must have been a subsequent revelation under circumstances such as a deterioration of the marriage which would prevent the situation from being remedied. Consequently, there was no evidence from which the jury could have concluded that in 1956, when Dr. Vance told Muriel that he was free to marry her, that he could or should have anticipated that under the circumstances existing some twenty years later, he would reveal what he previously concealed and cause Muriel to suffer severe emotional distress. Thus, Dr. Vance could have had no knowledge of what his concealment would likely occasion, and therefore the record fails to disclose any evidence in support of the first or second elements of the tort. Id. at 506, 408 A.2d 728. No Maryland case has addressed the precise factual issues at bar to determine if Ms. Doe's conduct rises to the level of "extreme and outrageous" necessary to satisfy the second element of this tort. Other states, however, have considered similar issues. Several states have concluded that allegations of adultery alone do not constitute extreme and outrageous conduct. See, e.g., Whittington v. Whittington, 766 S.W.2d 73, 74 (Ky.Ct.App. 1989); Poston v. Poston, 112 N.C.App. 849, 436 S.E.2d 854 (1993) Ruprecht v. Ruprecht, 252 N.J.Super. 230, 599 A.2d 604, 608 (Ch. Div.1991). In Whittington, Mr. Whittington allegedly defrauded his wife by forging her signature on the equity check received from the sale of the marital residence and began cohabiting with his paramour shortly before he filed for divorce. Whittington, 766 S.W.2d at 73. Consequently, Ms. Whittington filed a complaint alleging intentional infliction of emotional *157 distress, which the trial court dismissed for failure to state a cause of action. Id. at 74. The Kentucky Court of Appeals quoted with approval the trial court's memorandum order and opinion, which stated that the court had examined all the allegations in Ms. Whittington's complaint and concluded that none "reaches the tort of outrage. Perhaps the most offensive conduct complained of is fraud and adultery, two of the most routine causes of divorce litigation. As far as this Court is concerned, ordinary fraud and adultery can never reach the status of outrageous conduct." Id. The Court concluded that "[t]he emotional and financial distress caused by a spouse's fraud and adultery may be very painful and difficult but does not necessarily implicate the tort of outrage. Suitable relief is available under Kentucky's domestic relations laws." Id. at 74-75. Similarly, in Ruprecht, where the wife had engaged in an adulterous affair with a coworker for eleven years, the court found that her actions failed to reach the level of outrageousness necessary to meet this element of the tort. Ruprecht, 599 A.2d at 608. Citing an Iowa case that also addressed the issue of whether an adulterous affair could be considered sufficiently extreme and outrageous, the Court stated: In Strauss v. Cilek, 418 N.W.2d 378, 379 (Iowa Ct.App.1987), the court considered the claim of a husband against his friend for intentional infliction of emotional distress arising from his wife's romantic and sexual relationship with the friend. After noting that plaintiff's wife had obviously been unhappy in her marriage and that she had previously engaged in an extramarital affair that lasted for five years with another of the plaintiff's good friends, the court concluded: We do not condone promiscuous sexual conduct. However, we do not find defendant's conduct in participating in a sexual relationship with a married woman, his friend's wife, who willingly continued the affair over an extended period, is atrocious and utterly intolerable conduct so extreme in degree at to go beyond all possible bounds of decency.... A recitation of the facts of this case to an average member of the community would not lead him to exclaim, "Outrageous!" Ruprecht, 599 A.2d at 607. The North Carolina Court of Appeals simply cited Ruprecht in summarily deciding that a husband's allegation that his wife "repeatedly exposed her mind and spirit and body to the sexual advances of a male resident of Rowan County, North Carolina" did not "evidence the extreme and outrageous conduct which is essential" to the tort of intentional infliction of emotional distress. Poston, 436 S.E.2d at 856. These cases demonstrate that, according to the Restatement formulation of the tort of intentional infliction of emotional distress, adultery alone is not enough to satisfy the element of extreme and outrageous conduct. But as two prescient commentators wondered, "[i]f adultery alone were not considered emotional spousal abuse, should it become actionable when combined with deceit? To go perhaps further, what if a wife leads her husband to believe that he fathered her child and a year later reveals that the father was really her lover ... ?" Ellman Sugarman, supra, at 1275. We answer this question in the affirmative. In Steve H. v. Wendy S., 67 Cal.Rptr.2d 90 (Cal.Ct.App.), review granted, 68 Cal.Rptr.2d 859, 946 P.2d 817 (Cal.1997), Steve's wife Wendy had had an affair before and during their marriage. Wendy discovered, a day after their child's birth, that her paramour, and not Steve, was the biological father. Id. at 91. Wendy did not reveal this fact to Steve, however, until the parties divorced three years later, and Steve petitioned for sole custody of the child. Id. Wendy then told Steve that the child had been conceived when Wendy was raped, and induced Steve to take a blood test, knowing it would prove the absence of paternity. Id. Steve's complaint alleged that "[i]n lying to Steve about being raped, inducing him to take a blood test, and concealing from him that he was not [the child's] biological father, Wendy acted deliberately and intentionally so as to cause Steve severe emotional distress." Id. The trial court dismissed his claim for public policy reasons, and on appeal, Wendy conceded *158 that Steve adequately pleaded a cause of action for intentional infliction of emotional distress. Id. at 92. The Court of Appeals, relying on Richard P. v. Superior Court, 202 Cal.App.3d 1089, 249 Cal.Rptr. 246 (1988), affirmed the dismissal solely on public policy grounds, and did not consider whether Steve's complaint was sufficient to state a cause of action for intentional infliction of emotional distress. Steve H., 67 Cal.Rptr.2d at 97. An Illinois appellate court, however, rejected the analysis the California court adopted in Steve H., explaining that "public policy does not serve to protect people engaging in behavior such as that with which plaintiff's complaint charges defendant." Koelle v. Zwiren, 284 Ill.App.3d 778, 220 Ill.Dec. 51, 58, 672 N.E.2d 868, 875 (1996). Jan Zwiren moved in with Erik Koelle's father when Erik was 12 or 13 years old and developed a parent-child relationship with him. Id. at 53, 672 N.E.2d at 870. Years later, Zwiren and Koelle's father separated, but Zwiren and Koelle maintained a close relationship. Id. When Koelle was 21 years old, Zwiren asked him out on her boat, plied him with tequila, and initiated sex with him. Id. Approximately nine months later, Zwiren gave birth to a baby girl. Id. Although Zwiren knew that the girl's father was Arthur Bass, a wealthy married man and a client of Zwiren's advertising agency, Zwiren told Koelle that the baby was his. Id. She asked him to keep the baby's paternity a secret, and told Koelle that she would not seek any financial support from him. Id. at 54, 672 N.E.2d at 871. Throughout the next eight years, Koelle and the child became very close. Id. Koelle felt extreme anxiety over not being allowed to tell anyone of his relationship to the child. Id. He eventually began seeing a therapist and told some of his friends of the situation. Id. His friends encouraged him to take a paternity test, which he did with considerable reluctance. Id. The test showed that he was not the child's father. Id. Koelle filed a complaint alleging fraud, intentional infliction of emotional distress, and equitable relief. Id. The trial court dismissed his complaint on the grounds that his claims were barred by the statute of limitations because Koelle should have suspected earlier that he was not the child's father. Id. at 55, 672 N.E.2d at 872. The trial court also found that Koelle failed to state a claim upon which relief could be granted because "`love and affection' are `noncompensable.'" Id. The appellate court found that Koelle's claims were not barred by the statute of limitations because reasonable minds could find that Koelle had no reason to suspect Zwiren of perpetrating such a scheme. Id. at 58, 672 N.E.2d at 875. In addition, while not addressing specifically whether the conduct alleged was "extreme and outrageous," the appellate court nevertheless found that Koelle had sufficiently stated a claim for intentional infliction of emotional distress. Id. As to the trial court's conclusion that love and affection are noncompensable, the appellate court found that Koelle did not seek to be paid for the love and affection he gave the child, but instead sought compensation for the losses he suffered due to Zwiren's fraud and for the pain and anxiety he experienced due to her intentional infliction of emotional distress. Id. Most recently, the Supreme Court of Oklahoma considered whether concealment and deception regarding paternity constituted acts sufficiently outrageous to state a claim for intentional infliction of emotional distress. See Miller v. Miller, 956 P.2d 887, 891-92 (Okla. 1998). Jimmy Miller sued his former wife, Judy, and her parents, alleging that in 1980, for the purpose of inducing him to marry Judy, they knowingly misrepresented to him that Judy was pregnant with his child. Id. Jimmy and Judy divorced in 1985, and the court ordered Jimmy to pay child support, which he faithfully did. Id. at 892-93. In 1995, when the daughter was 15 years old, she moved into Jimmy's house. Id. A year later she told him that when she had originally expressed a desire to live with Jimmy, her mother and grandparents had told her that Jimmy was not her real father and urged her to get to know her real father and his family. Id. Jimmy immediately took a paternity test, which verified that he was not the biological father. Id. Two months later Jimmy filed suit, alleging that he was fraudulently induced to marry *159 Judy in 1980. Id. Jimmy also alleged that Judy's marriage-inducing misrepresentations, the cruel paternity hoax perpetrated against him, the callous revelation of the hoax through the daughter, and the efforts to undermine his relationship with the daughter amounted to extreme and outrageous conduct. Id. at 893. He sought damages against all the defendants for intentional infliction of emotional distress. Id. The trial court dismissed his suit, finding it barred by the statute of limitations and issue preclusion. Id. at 900-02. The intermediate appellate court affirmed on the basis that Judy's conduct failed to cross the threshold degree of outrageousness necessary to proceed with the tort. Id. The Supreme Court disagreed. Oklahoma, like Maryland, has adopted the Restatement formulation for intentional infliction of emotional distress. Id. The Court echoed comment d of § 46 of the Restatement in explaining that only extreme and outrageous conduct, that which goes beyond all possible bounds of decency, will be compensated. Id. In finding that Judy's conduct could reasonably be regarded as extreme and outrageous, the Court described the allegations, which included: (1) the telling of a premarital falsehood going to the heart of the marital and parental relationship, a falsehood which was implicitly repeated every day until the defendants decided the falsehood was no longer useful to them, (2) causing the plaintiff to develop a parental relationship with a child, believing that child to be his biological offspring, and then causing plaintiff to learn that the child was not biologically his own, (3) using the plaintiff to fulfill the emotional, physical, and financial obligations of a husband for almost five years and of a father for fifteen years, knowing that these obligations were not really his, (4) undermining the plaintiff's relationship to his child, first by gratuitously revealing to the child that plaintiff, the man she knew as her father, was not in fact biologically related to her, and then by attempting to establish and foster a parental relationship between the child and another man whom the defendants identified as [the child]'s "real father", and his family, (5) failing to reveal the truth to the plaintiff in the divorce action, resulting in plaintiff joining in a legal document acknowledging his parental relationship to [the child], (6) failing to reveal the truth to the court in the divorce action, thereby showing contempt for the judicial system and making the divorce court an unwitting accomplice to fraud, (7) causing the plaintiff to suffer from the knowledge that he had been hoodwinked and used, and (8) boasting that nothing could be done about their fraud. Id. at 902. The Court concluded that this conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the Section 46 standard. Id. We find the conduct alleged in the instant case similar to that alleged in Steve H., Koelle, and Miller and more outrageous than that alleged in Whittington, Ruprecht, and Poston. Mr. Doe has alleged not only that his wife had an adulterous affair, but also that as a result she bore two children, the true paternity of whom she deliberately concealed for three years. As Mr. Doe stated, "[Ms. Doe] purposefully and willfully concealed from [Mr. Doe] the existence of said affair and deliberately misled [Mr. Doe] to believe that she was conducting herself as a chaste and faithful wife." In addition, Mr. Doe alleged that throughout their marriage, Ms. Doe "through day to day statements and conduct deliberately, intentionally and with full knowledge of the truth, deceived and lied to Plaintiff misleading him to believe that he was the natural father of all three children born during the course of the parties' marriage." Mr. Doe alleged specifically that, "[a]mong other things, [Ms. Doe] caused [Mr. Doe's] name to be entered as father on the birth certificates of each of the three children" and that "[Ms. Doe] held [Mr. Doe] out to family, friends, business colleagues, the church and the general public as the natural father of the three children." Mr. Doe also alleged that, "[f]rom birth, [he] related to and loves each of the children as his or her natural father, developed a close and loving relationship with each of them, cared for them, raised them and invested substantial... resources, both tangible and intangible, in each child's health, welfare and well-being." *160 According to Mr. Doe's complaint, Ms. Doe insisted that M.G. be named godfather of all the parties' children even though Mr. Doe barely knew M.G., a fact that Mr. Doe believed caused him "to unknowingly become a participant in a reprehensible and blasphemous fraud upon the church and God." Ms. Doe continued the deception when Mr. Doe confronted her with the letter to M.G., telling her husband that although she had once been in love with M.G., she had never had sex with him. Mr. Doe alleged that this "heinous and outrageous conduct in deliberately deceiving [him] for several years regarding the true paternity of A.E. and Z.S. has caused [him] enormous damage, including, but not limited to, debilitating emotional distress, anguish and inexorable public humiliation." Here, as in Miller, Mr. Doe alleged that Ms. Doe told a falsehood going to the heart of the marital and parental relationship; that the falsehood that was repeated every day until Mr. Doe discovered Ms. Doe's letter to her paramour; that Ms. Doe caused Mr. Doe to develop a parental relationship with the twins, then caused him to learn that the children were not biologically his own; that Ms. Doe used Mr. Doe to fulfill the emotional, physical, and financial obligations of a father for three years, knowing those obligations were not really his; that Ms. Doe failed to reveal the truth, even when confronted; and that Ms. Doe caused Mr. Doe to suffer from the knowledge that he had been hoodwinked and used. We do not speculate as to whether Mr. Doe can prove these allegations or whether a fact-finder will find Ms. Doe's conduct extreme and outrageous. We need only consider whether Mr. Doe's allegations of Ms. Doe's conduct may reasonably be regarded as sufficiently extreme and outrageous to meet the Section 46 standard. We believe they may reasonably be so regarded. Thus, we conclude that the trial court improperly dismissed Mr. Doe's claim on this basis. Causal Connection and Severity of Emotional Distress Although the trial court did not address whether Mr. Doe sufficiently alleged the causal connection between the wrongful conduct and the emotional distress and the severity of the emotional distress, we conclude that he did. Mr. Doe alleged that Ms. Doe's conduct in deliberately and intentionally deceiving Mr. Doe regarding the paternity of A.E. and Z.S. "was outrageous, reckless, extreme, beyond the bounds of decency in society, and done in deliberate disregard of the high degree of probability that emotional distress would result to [Mr. Doe] and his family." Mr. Doe then alleged that "[a]s a direct result of [Ms. Doe's] heinous conduct, [Mr. Doe] has suffered and will continue to suffer, severe and extreme emotional distress." Again we will not comment on whether Mr. Doe can prove these allegations at trial, we consider his allegations sufficient to state a cause of action. Fraud (Count II) The elements of fraud are: (1) that a representation made by a party was false; (2) that either its falsity was known to that party or the misrepresentation was made with such reckless indifference to truth to impute knowledge to him; (3) that the misrepresentation was made for the purpose of defrauding some other person; (4) that that person not only relied upon the misrepresentation but had the right to rely upon it with full belief of its truth, and that he would not have done the thing from which damage resulted if it had not been made; and (5) that that person suffered damage directly resulting from the misrepresentation. B.N. v. K.K., 312 Md. 135, 149, 538 A.2d 1175 (1988). The trial court found Mr. Doe's allegations insufficient to state a cause of action for fraud: The typical fraud case is predicated upon an affirmative misrepresentation. In the instant case, however, it is an omission that predicates the fraud—the Defendant's failure to inform her husband that he was not the biological father of the twins. The Maryland Court of Appeals has expressly stated that an action for fraud can stand on an omission when the relationship between the two parties imposes a duty to disclose. Under most circumstances, marriage is a relationship that would impose such a duty. In this instance, however, it *161 is not in the best interest of the children to impose upon the Defendant a duty to disclose [to] the Plaintiff that he is not the biological father of the twins. The children have had the benefit of the love and support of the Plaintiff since their birth. He admits that he cherishes his relationship with A.E. Doe and Z.S. Doe and, in fact, has evidenced his continued desire to support them by seeking custody. Had it not been for the Defendant's alleged misrepresentation by omission, perhaps the twins might not have had the love and support of Plaintiff. Public policy precludes imposing a duty on a mother to disclose that which may be harmful to her children. The Court is not unsympathetic to the Plaintiff and recognizes that, if the facts are as alleged, he has been wronged. It is unwise, however, to remedy that wrong at the expense of the children. Therefore, the first element of fraud cannot be satisfied as a matter of law. Additionally, the fourth element of fraud requires that the party deceived would not have acted in the manner he did if he had known of the misrepresentation. Proof of this element requires Plaintiff to show that he would not have given his financial or emotional support to A.E. Doe and Z.S. Doe if he knew that he was not their biological father. As a matter of public policy it would be harmful to the children to allow the Plaintiff to offer the evidence necessary to support this element, especially when an adequate remedy exists within the divorce action. Even if Plaintiff could present evidence to this effect, his fraud claim is barred by his inability to prove the first element. (footnote omitted) (citation omitted). We disagree with the trial court's conclusion that public policy bars an action for fraud in this instance. For the reasons we explained supra, the "best interests of the children" is not a valid public policy bar to an interspousal tort suit in this instance. The trial court reasoned that Ms. Doe made no affirmative misrepresentation regarding the children's paternity, but simply omitted to tell Mr. Doe the truth. We note that concealment can be the basis of a fraud action if there is a duty to speak, such as in a marital or other confidential relationship. B.N., 312 Md. at 151, 538 A.2d 1175. Thus, according to the trial court's analysis, absent a public policy bar, Ms. Doe had a duty to disclose to Mr. Doe that he was not the biological father of the twins. Mr. Doe argues, however, that Ms. Doe affirmatively misrepresented that he was the father of the twins. Ms. Doe admitted that Mr. Doe was named as father on the children's birth certificates and that he has been held out as the natural father of the children. Regardless of which theory is ascribed, Mr. Doe has alleged sufficiently the first element of fraud, namely that Ms. Doe falsely represented to him that he was the father of the twins; or, in the alternative, that Ms. Doe failed to disclose the true paternity of the children even though she had a duty to speak. As to the second and third elements, that Ms. Doe knew of the falsity of the representation and that the false representation was made for the purpose of defrauding Mr. Doe, the trial court did not indicate whether it found these elements sufficiently alleged. We note that the allegations regarding the content of Ms. Doe's letter clearly indicate that, at some point, she learned of the true paternity of the children yet continued to represent to Mr. Doe that he was the twins' father. Mr. Doe also alleged that Ms. Doe made the statements "without legal justification or excuse, with malice, ill will and/or with the intent to deliberately injure" Mr. Doe. Thus, we deem that Mr. Doe sufficiently alleged the second and third elements of fraud. As to the fourth element, the trial court found that it would not be in the best interests of the children if Mr. Doe were to adduce evidence that he would not have acted toward them in the manner he did had he known of Ms. Doe's deception. The trial court also stated that Mr. Doe had an adequate remedy within the divorce action. As discussed supra, the best interests of the children are not relevant to a proper analysis of the legal sufficiency of Mr. Doe's claim. Also as discussed supra, Mr. Doe may not have an adequate remedy for his tort claims within the divorce action. Mr. Doe alleged *162 that Ms. Doe made the "misrepresentations with the intent that [Mr. Doe] rely on them and [Mr. Doe], in fact, justifiably so relied." Absent a public policy bar, Mr. Doe's allegations were sufficient. As to the fifth element, damages from the misrepresentation, Ms. Doe argues in her appellate brief that because Mr. Doe wants to continue his relationship with the children, he has failed to allege that he incurred any damages. As a matter of public policy, Ms. Doe asserts, Mr. Doe should not be permitted to claim damages for developing a loving relationship with the twins. Ms. Doe misapprehends the nature of Mr. Doe's claim. As the Illinois Appellate Court stated in Koelle, where Koelle sued for fraud, intentional infliction of emotional distress, and sought visitation rights with the child although he was not the father: Plaintiff does not seek to be paid for the love and affection he gave [the child]. In fact, his complaint expresses his desire to continue that relationship. The complaint alleges that plaintiff suffered severely as a result of defendant's allegedly fraudulent scheme. Plaintiff alleges that he experienced constant intense anxiety, developed difficulty dealing with women and cultivating relationships, and abandoned his career goals. These are the injures for which plaintiff seeks to recover. The trial court erred in suggesting that plaintiff seeks to be compensated for loving [the child]. He seeks compensation for the losses he has suffered due to defendant's alleged fraud and for the pain and anxiety he has felt due to her intentional infliction of emotional distress. Koelle, 220 Ill.Dec. at 58, 672 N.E.2d at 875. Here, too, Mr. Doe is seeking damages for the losses he claims to have suffered because of Ms. Doe's alleged fraud, not damages for developing a loving relationship with the children.[5] Thus, Mr. Doe sufficiently alleged the fifth element of fraud. III. Counts IV through VII of Mr. Doe's complaint alleged fraud, negligent misrepresentation, promissory estoppel, breach of contract, and constructive trust. According to Mr. Doe, Ms. Doe promised Mr. Doe that if he regularly deposited his entire income into the family's joint checking account instead of contributing to his 401(k) plan, he could rely on her stockholdings for his retirement. Mr. Doe alleged in 1990 that he first discussed with Ms. Doe his desire to make substantial contributions to the 401(k) plan established by his employer, but that Ms. Doe dissuaded him from so doing. Instead, Ms. Doe wanted Mr. Doe to deposit his entire net income in the joint checking account so it could be spent on the family and their new home. In exchange, Ms. Doe promised Mr. Doe that her "substantial common stockholdings" would provide for both of their retirements. From 1992 to 1996, the parties had periodic discussions regarding Mr. Doe's 401(k) plan. Mr. Doe continued to deposit his entire income in the family's bank account and has not made any contributions to his 401(k) plan in the more than seven years he has worked for his employer. Since November 1996, however, Ms. Doe has taken the position that Mr. Doe will not be able to rely on her stockholdings for his retirement. The circuit court summarily dismissed all of Mr. Doe's claims relating to Ms. Doe's stockholdings, stating: Marriage contemplates numerous promises for the future. To love, honor and cherish in sickness and health until parted by death are just a few that come to mind. Promises made with regard to the future (including those of a financial nature) may not be binding in the event the parties no longer have a future together. Plaintiff does not suggest that Defendant promised him a share in her stock holdings in the event they were no longer married. Thus, he had no basis to rely on this promise if he and Defendant did not remain together. This alone renders the alleged promise unenforceable. Moreover, it was a mutual *163 decision between the parties that Plaintiff would not contribute to his 401K retirement plan. The money was placed into a joint checking account—available for use by and for the benefit of both parties. The Defendant did not obtain use of those funds without Plaintiff's complicity. To make Defendant's alleged promise binding, the Court would have to determine what Defendant meant by her promise to provide for the parties' retirement with the proceeds from her stock holdings. How much would she provide and when would she have to provide it are just a few of the issues the Court would have to determine in assessing damages or awarding Plaintiff a percentage of Defendant's stock holdings. Because of the ambiguity of the alleged promise it would be impossible for the Court to address these issues with any certainty. For these reasons, the Plaintiff has failed to state a claim upon which relief can be granted relating to Defendant's alleged representations regarding her stock holdings. We agree with the trial court's dismissal of Counts IV through VIII of Mr. Doe's complaint. Count IV — Fraud (401(k)) Mr. Doe's complaint did not state with specificity the representations Ms. Doe allegedly made. He merely asserted that she falsely promised Mr. Doe that he could rely on her stockholdings for retirement. He did not describe the stockholdings, nor did he state how much money he would have invested had he not relied on Ms. Doe's alleged promise. Because Mr. Doe did not allege in any detail the specifics of the statement, we are unable to determine if he reasonably relied on the statement. Mr. Doe did not allege how much the 401(k) would have been worth had he not foresworn contributing to it, thus he did not sufficiently allege damages. "Characterizations of acts or conduct, no matter how often or how strongly adjectively asserted are, without supporting statements of fact, conclusions of law or expressions of opinion." Greenbelt Homes, Inc. v. Board of Educ., 248 Md. 350, 360, 237 A.2d 18 (1968). Because Mr. Doe did not provide any supporting facts, we conclude that he failed to state a cause of action for fraud with regard to his 401(k) plan. Furthermore, "[a]llegations of fraud or characterizations of acts, conduct or transactions as fraudulent... without alleging facts which make them such, are conclusions of law insufficient to state a cause of action." Id. Count V — Negligent Misrepresentation To prevail on a claim of negligent misrepresentation, Mr. Doe must prove that: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers damage proximately caused by the defendant's negligence. Brock Bridge Ltd. Partnership v. Development Facilitators, Inc., 114 Md.App. 144, 160, 689 A.2d 622 (1997). As with the Count IV fraud allegations, we find Mr. Doe's allegations too vague to constitute a sufficient cause of action for negligent misrepresentation. Mr. Doe did not state with specificity the allegedly false statement, nor did he allege facts supporting reasonable reliance or damages caused by the statement. Moreover, as we stated in Ward Development Co., Inc. v. Ingrao, 63 Md.App. 645, 656, 493 A.2d 421 (1985), "[a]n action for fraudulent misrepresentation will not lie for the unfulfillment of promises or the failure of future events to materialize as predicted." Here, the marriage apparently will not continue as Mr. and Ms. Doe may have anticipated at the time of the wedding ceremony, and Mr. Doe did not allege that Ms. Doe promised that he could rely on her stockholdings in the event they were no longer married when Mr. Doe retires. Count VI — Promissory Estoppel The Restatement (Second) of Contracts § 90(1) (1979) defines the elements of promissory estoppel: (1) a clear and definite promise; (2) where the promisor has a *164 reasonable expectation that the offer will induce action or forbearance on the part of the promisee; (3) which does induce actual and reasonable action or forbearance by the promisee; and (4) causes a detriment which can only be avoided by the enforcement of the promise. Pavel Enters., Inc. v. A.S. Johnson Co., 342 Md. 143, 166, 674 A.2d 521 (1996). The trial court correctly determined that Mr. Doe's allegations did not sufficiently establish a clear and definite promise so as to plead a cause of action for promissory estoppel. Mr. Doe's complaint did not allege what Ms. Doe meant when she allegedly told Mr. Doe he could "rely" on her stockholdings for his retirement, did not identify the stockholdings to which the promise referred, did not indicate whether Mr. Doe would receive an ownership interest in the stockholdings or merely the income, did not establish when Mr. Doe's retirement would begin, and did not estimate the value of the stockholdings. In addition to the lack of a clear and definite promise, Mr. Doe did not allege the fourth element, that his alleged detriment can only be avoided by enforcement of the promise. Count VII — Breach of Contract A contract is "a promise or set of promises for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." Kiley v. First Nat. Bank, 102 Md.App. 317, 333, 649 A.2d 1145 (1994) (quoting Richard A. Lord, 1 Williston on Contracts § 1:1, at 2-3 (4th ed.1990)). Mutual assent is an indispensable component of every contract. Id. An enforceable contract must express with definiteness and certainty the nature and extent of a party's obligations. Id. If a contract omits a term or is too vague regarding essential terms, the contract may be invalid. Id. As we stated in Kiley, Of course, no action will lie upon a contract, whether written or verbal, where such a contract is vague or uncertain in its essential terms. The parties must express themselves in such terms that it can be ascertained to a reasonable degree of certainty what they mean. If the agreement be so vague and indefinite that it is not possible to collect from it the intention of the parties, it is void because neither the court nor jury could make a contract for the parties. Such a contract cannot be enforced in equity nor sued upon in law. For a contract to be legally enforceable, its language must not only be sufficiently definite to clearly inform the parties to it of what they may be called upon by its terms to do, but also must be sufficiently clear and definite in order that the courts, which may be required to enforce it, may be able to know the purpose and intention of the parties. Id. at 334, 649 A.2d 1145 (quoting Robinson v. Gardiner, 196 Md. 213, 217, 76 A.2d 354(1950)). Here, the contract alleged by Mr. Doe is vague and uncertain in its essential terms. The alleged contract did not address what would happen if the parties divorced, did not specify the value and identity of Ms. Doe's stockholdings, and did not specify how much or when Ms. Doe would have to provide retirement funds for Mr. Doe. The trial court correctly found that because of the ambiguity of the asserted agreement it would be impossible for the court to address any of these issues with any certainty. Count VIII — Constructive Trust A constructive trust is the remedy employed by the court in equity to convert the holder of the legal title to property into a trustee for one who in good conscience should reap the benefits of the possession of that property. Wimmer v. Wimmer, 287 Md. 663, 668, 414 A.2d 1254 (1980). This remedy is applied by operation of law when property has been acquired by fraud, misrepresentation, or other improper method, or where the circumstances render it inequitable for the party holding title to retain it. Id. Before the court will impose a constructive trust, there must be clear and convincing evidence not only of wrongdoing in the acquisition, but also of the circumstances that render it inequitable for the holder of the legal title to retain the beneficial interest. Id. The Court of Appeals has imposed constructive trusts in cases in which the alleged wrongdoer has acquired property in violation *165 of an agreement or in which another person had some good equitable claim of entitlement to property resulting from the expenditure of funds or other detrimental reliance resulting in unjust enrichment. Id. at 669, 414 A.2d 1254. Mr. Doe's complaint fails to allege specific facts which, if true, show that he is entitled to this equitable remedy. As we noted supra, Mr. Doe did not allege in sufficient detail the agreement regarding his 401(k) plan. Furthermore, Mr. Doe alleged that both parties agreed that he would deposit his salary in the family's joint account. Thus, Ms. Doe did not fraudulently convert his money. Nor did Mr. Doe allege sufficiently that Ms. Doe had retained her stockholdings in violation of an agreement, because the complaint failed to establish the specifics of that alleged agreement. Mr. Doe claimed he had a rightful interest in Ms. Doe's stockholdings, yet he failed to allege specifically the value or identity of that interest. Thus, we find the trial court correctly dismissed this count for failure to state a claim. Epilogue As a final note, we point out that the trial court mentioned several times its concern regarding repetitive and excessive litigation. The trial court seemed concerned that the case would be litigated twice, once before a judge and once before a jury, thus causing the court to be "flooded with litigation." As to the question of the timing of an interspousal tort suit, namely whether it must proceed concurrent with the divorce or should follow the divorce, we need not mandate any particular path. The trial court is in the best position to assess the logistical issues. We do recognize, however, that there are options. One approach is to combine the tort trial with the divorce trial. As one commentator noted, Tort claims, which usually involve a single lump sum award are ... classically legal. A tort plaintiff is generally entitled to a jury trial. The problem thus arises about how to arrange a jury trial for [a party's] tort claim, while keeping the fact-finding for and administration of the divorce in the judge's hands.... There are thus two realistic possibilities for managing the problems of a jury trial in [a spouse's] combined tort and divorce action against [the other spouse]: (1) try the tort claim before a jury first, then incorporate its factual findings and damage award in the judge's divorce decree; (2) have both the tort and divorce claims decided by a judge. Schepard, supra, at 150; see, e.g., Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189, 1196 (1979) (holding that wife's tort claims should have been presented in conjunction with the divorce action "to lay at rest all their legal differences in one proceeding and avoid the prolongation and fractionalization of litigation"); Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex.1993) (holding that when joinder of tort claims with divorce is feasible, resolving both claims in the same proceeding avoids two trials based at least in part on the same facts). Another approach, to proceed with the divorce trial first, and then turn to the tort claims, apparently has been successful in Maryland. In Gordon v. Gerhold, 90 Md.App. 360, 600 A.2d 1194 (1992), Ms. Gerhold filed a complaint for divorce when her husband was arrested and charged with conspiring to murder her. Id. at 362, 600 A.2d 1194. Subsequently, she proceeded against him in a tort action, suing for damages for intentional and negligent infliction of emotional distress, fraud, and other torts. Id. at 363, 600 A.2d 1194. The appeal before this Court pertained to issues other than the divorce and subsequent tort suit, but the fact that the two suits proceeded without comment suggests that the tort trial may, in some circumstances, follow a suit for divorce. See, e.g., Koepke v. Koepke, 52 Ohio App.3d 47, 556 N.E.2d 1198, 1200 (1989) (holding that husband should have been allowed to pursue tort action against wife for intentional infliction of emotional distress independent of divorce action); Stuart v. Stuart, 143 Wis.2d 347, 421 N.W.2d 505, 508 (1988) (noting that "although joinder is permissible, the administration of justice is better served by keeping tort and divorce actions separate"). One virtue of this seriatim approach is trying the *166 divorce first will refine the extent to which the claimed tort damages cannot be addressed under the Family Law Article of the Code. JUDGMENT AS TO COUNTS II AND III REVERSED; JUDGMENT AS TO COUNTS IV THROUGH VIII AFFIRMED; COSTS TO BE DIVIDED EQUALLY BETWEEN APPELLANT AND APPELLEE. NOTES [1] For reasons that will become obvious, the proper names of the parties have been redacted. [2] Rule 2-602(b)(1) allows the trial court, if it expressly determines in a written order that there is no just reason for delay, to direct in the order the entry of a final judgment as to one or more but fewer than all of the claims before it. This provision is an exception to the general rule that an order that adjudicates fewer than all of the claims in an action is not a final judgment and therefore is not ripe for appeal. Tharp v. Disabled American Veterans, 121 Md.App. 548, 551-52, 710 A.2d 378 (1998). This limited exception is only available on rare occasions to avoid harsh results. Id. The case sub judice is just such a case. Here, the trial court properly directed the entry of final judgment as to Mr. Doe's tort claims, leaving the divorce case pending. As Mr. Doe argued in his written motion for entry of final judgment, filed on 11 July 1997, delay of entry of final judgment on his tort claims might result in a second trial of his divorce action and denial of his Constitutional right to a jury trial on the many factual issues which overlap the legal and equitable aspects of this case. The record of this case serves as a model for the proper invocation and disposition of a Rule 2-602(b)(1) certification. [3] In 1983, 27 states had abrogated the doctrine fully and 8 partially. Kawasaki, supra, 19 U. Haw. L.Rev. at 381-82. By 1997, interspousal immunity had been completely abrogated in 45 states and the District of Columbia, and 5 states had abrogated the immunity in limited circumstances (Georgia, Massachusetts, Nevada, Rhode Island, Vermont). Id. [4] According to the Oxford English Dictionary, the term "red herring" arose in the 1680s as a hunting term whereby a red herring would be drawn across the fox's path to destroy the scent and set the dogs at fault. The Compact Oxford English Dictionary 1535 (2d ed.1991). The phrase "neither fish, flesh, nor good herring" also gained popularity, as explained in the Dictionary of Phrase and Fable as "something insipid and not good eating [,] neither one thing nor another." Both definitions seem pertinent in the present case. [5] In Miller, the Oklahoma Supreme Court did not comment on the damages alleged by Jimmy, which included an amount equal to the sum of court-ordered child support Jimmy had paid for the past ten years, as well as punitive damages. Miller, 956 P.2d at 892-93.

55 N.J. 408 (1970) 262 A.2d 408 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL E. BYNES, JR., DEFENDANT-APPELLANT. The Supreme Court of New Jersey. Argued February 16, 1970. Decided March 2, 1970. Mr. John Anthony Lombardi argued the cause for appellant. Mr. Arthur J. Timins argued the cause for the respondent (Mr. Leo Kaplowitz, Union County Prosecutor, attorney). PER CURIAM. The judgment is affirmed for the reasons expressed in the opinion per curiam filed in the Appellate Division, 109 N.J. Super. 105. For affirmance — Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7. For reversal — None.

Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 5-27-2005 In Re: Desamour Precedential or Non-Precedential: Non-Precedential Docket No. 05-1666 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "In Re: Desamour " (2005). 2005 Decisions. Paper 1119. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1119 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. HPS-63 (March 2005) NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 05-1666 ________________ IN RE: REYNOLDO DESAMOUR, Petitioner ____________________________________ On Petition for a Writ of Mandamus from the United States District Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Crim. No. 89-cr-00389-6) _____________________________________ Submitted Under Rule 21, Fed. R. App. P. March 11, 2005 Before: CHIEF JUDGE SCIRICA, WEIS AND GARTH, CIRCUIT JUDGES Filed: May 27, 2005 _______________________ OPINION _______________________ PER CURIAM. Reynoldo Desamour has filed a mandamus petition pursuant to 28 U.S.C. § 1651, seeking to compel the District Court for the Eastern District of Pennsylvania to rule on his motion filed pursuant to Fed. R. Civ. P. 60(b). It appears that the District Court has recently entered an order disposing of his Rule 60 motion. Accordingly, the petition for a writ of mandamus will be denied as moot. Desamour may, of course, challenge the District Court’s disposition of his Rule 60(b) motion by filing a timely notice of appeal in accordance with the dictates of Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2 

754 F.2d 372 Anthonyv.Secretary of Health and Human Services 84-3377 United States Court of Appeals,Sixth Circuit. 12/12/84 S.D.Ohio REMANDED

672 So.2d 590 (1996) Algie KNIGHT, Appellant, v. STATE of Florida, Appellee. No. 95-1142. District Court of Appeal of Florida, Fourth District. April 24, 1996. L.T. Case No. 94-10040 CF-C. Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and William A. Spillias and Michelle A. Konig, Assistant Attorneys General, West Palm Beach, for appellee. DELL, Judge. Appellant raises two issues in this appeal. She first contends that the prosecutor's remarks during closing argument warrant a new trial. We agree. Because we reverse on this issue, we need not address appellant's remaining point on appeal. The state charged appellant and codefendants Antoinette Bacon and Calvin Williams with trafficking in heroin. At trial, Dale Allison, a crime scene technician, testified that white powder found on a container was heroin. Ms. Allison also testified that she lifted fingerprints from the container. When the prosecutor asked Ms. Allison whether there was any value from the latent fingerprints, she replied that once she lifts the fingerprints, the latent examiner determines if there is any value to the prints. Codefendant Bacon's counsel objected on hearsay grounds to any testimony by Ms. Allison as to the value of the finger prints. The trial court sustained the objection. During closing argument, the prosecutor commented on Bacon's counsel's objection to Ms. Allison's testimony: Now, I don't know why Halpern didn't want ID technician Allison to tell you about the fingerprint results. Maybe he will tell you, I don't know. I don't have a clue. Maybe he is saving that and has something up his sleeve along with the perjured testimony and planted evidence. I wanted to find out what the answer was, but you heard him object so he can explain it to you. The trial court sustained Bacon's counsel's objection to these comments and instructed the jury to not consider why an attorney objects. The prosecutor also made at least five references to one Vetus McCray stating that he was a "criminal" and would have lied to the jury if called to testify. Vetus McCray had been seen with appellant and the codefendants *591 on the day of the incident, but he was not charged or called as a witness in the case. The prosecutor further argued that a not guilty verdict meant the detectives were criminals and perjurers and effectively sought to poll the jurors on this point when he stated: Unless you believe [Detective Camilo's] a perjurer, he is a criminal and likes to point the finger at innocent people, if you believe that, let me know. I will sit down now. I wouldn't bother saying anymore because if you believe Detective Camilo is a criminal perjurer and raised his hand and swore to God to tell you the truth here in the courtroom and sits there and looks you directly in the eye and lies to you and decides I want to point the finger at two innocent people because he's got nothing better to do, let me know. Raise your hand now. I will sit down. Appellant's counsel did not object to the state's improper comments until the end of the prosecutor's closing. He argued in support of a motion for mistrial that the prosecutor had commented on facts not in evidence and had improperly argued that defense counsel accused the police officers of perjury. He also grounded his motion on the previous argument presented by Bacon's counsel that the prosecutor impermissibly attacked the credibility of defense counsel and improperly commented on Bacon's counsel's objection during the testimony of the crime scene technician. The trial court denied the motion for mistrial, but agreed that the objected to comments were grossly improper and gave a second curative instruction. The jury returned verdicts of guilty as to all three defendants. The trial court correctly recognized the seriousness of the prosecutor's comments, but erred in denying the motion for mistrial. The prosecutor impermissibly attacked the credibility of defense counsel for objecting to the state's introduction of inadmissible evidence during the testimony of the crime scene technician. Landry v. State, 620 So.2d 1099, 1102 (Fla. 4th DCA 1993); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). He also resorted to personal attacks on defense counsel, Ryan v. State, 457 So.2d 1084, 1089 (Fla. 4th DCA 1984), and improperly argued facts not in evidence by stating several times that Vetus McCray was a "criminal." Ryan, 457 So.2d at 1090. In addition to these improper remarks, the prosecutor also improperly commented on appellant's right to remain silent by making numerous references to the "uncontradicted testimony" of the police officers and by stating that "God forbid you should believe a police officer whose testimony went uncontradicted by these Defendants who told you specifically what happened in this case." Ryan, 457 So.2d at 1090-91. None of these comments were invited. We recognize that appellant failed to object to several of the prosecutor's improper comments and only made one objection at the end of the state's closing. However, this court has held that "if the improper comments rise to the level of fundamental error, then multiple objections are not necessary." Id. at 1091 (citing Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980)). Moreover, in Peterson, this court held that we need not consider whether the errors preserved by the single additional objection would be sufficient in themselves to require reversal. This is so because we are convinced beyond question that the contents of the final argument, taken as a whole, were such as utterly to destroy the defendant's most important right under our system, the right to the `essential fairness of [his] criminal trial.' Dukes v. State, 356 So.2d 873, 874 (Fla. 4th DCA 1978). 376 So.2d at 1234 (footnote omitted). We hold that the totality of the prosecutor's improper comments reach to the very heart of the case and rise to the level of fundamental error obviating the need for multiple or contemporaneous objections. Accordingly, we reverse and remand for a new trial. REVERSED and REMANDED. GLICKSTEIN and KLEIN, JJ., concur.

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006 Charles R. Fulbruge III Clerk No. 04-41224 Conference Calendar RUSSELL MARKS, Petitioner-Appellant, versus CONSTANCE REESE, Warden Respondent-Appellee. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:04-CV-355 -------------------- Before GARZA, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Russell Marks (“Marks”), federal prisoner # 06550-045, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition in which he challenged his convictions and sentences for conspiracy to distribute cocaine and conspiracy to launder monetary instruments. Marks argues that his guilty plea was involuntary because the trial court did not advise him that he faced a mandatory sentence of life imprisonment. He contends that he should be allowed to proceed under 28 U.S.C. § 2241 * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  No. 04-41224 -2- because “he has not had an unobstructed shot at getting his conviction or sentence vacated.” Marks cites to Dretke v. Haley, 541 U.S. 386 (2004) and United States v. White, 371 F. Supp. 2d 378 (W.D.N.Y. 2005) in support of his argument. Marks has not shown that his claim meets the requirements of 28 U.S.C. § 2255's “savings clause.” He has not shown that his claim is based on a retroactively applicable Supreme Court decision which establishes that he may have been convicted of a nonexistent offense and that such claim was foreclosed by circuit law at the time when the claim should have been raised in his trial, appeal, or first 28 U.S.C. § 2255 motion. See Reyes- Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Therefore, the district court’s dismissal of Marks’s 28 U.S.C. § 2241 petition is AFFIRMED. 

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1326 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the Western * District of Arkansas. * Miklos A. Molnar, * * Appellant. * ___________ Submitted: September 21, 2009 Filed: January 12, 2010 ___________ Before MELLOY, BEAM, and GRUENDER, Circuit Judges. ___________ BEAM, Circuit Judge. Miklos Molnar appeals his sentence following his plea of guilty to embezzlement. Though his calculated guideline range was ten to sixteen months, the district court varied upward and sentenced Molnar to sixty-months' imprisonment followed by two years of supervised release. We reverse and remand for resentencing. I. BACKGROUND Since 1987, Molnar worked as a police officer in Van Buren, Arkansas. In August 2000, Molnar joined the Drug Enforcement Administration Task Force. In this capacity, Molnar had access to seized drug funds, and he was in charge of the Van Buren Police Department evidence room–one of only three people with a key to this room. Molnar testified at the sentencing hearing that at some point in 2006, he used money from the evidence room to pay personal bills. Initially, he tried to repay the money with his own funds. However, the scheme eventually "got out of control" and he began using one sum of seized money to pay back other seized funds. This process occurred over a two-year period. A local prosecutor became suspicious when he noticed that Molnar deposited a $1,000 check for "drug buy" money into his personal account. When confronted by the Chief of Police about this, Molnar explained that he had used his personal funds for "drug buy" money and was simply reimbursing himself for the $1,000. The Chief told him not to make this practice a habit because it did not look good.1 The prosecutor had also complained that Molnar was slow to return $19,000 in funds that a state court ordered were to be returned to a party from whom the funds were confiscated. When the Chief inquired about this situation, Molnar indicated that he could produce the $19,000. However, when the Chief ordered him to go to the evidence room and produce the money, Molnar acknowledged that he could not and admitted to taking seized money from the evidence room for personal use. Molnar pleaded guilty to embezzlement and paid full restitution to the police department. 1 As we understand the record, Molnar was never accused of embezzling this particular sum of money. -2-  During sentencing, the following colloquy took place between the district court and the Van Buren Police Chief, discussing the nature of the funds in the evidence room: THE COURT: Are some of those funds then used to say purchase drugs or for undercover type activity? A: No. The Van Buren Police Department itself does not do that, Your Honor. It's something that would, if that money was going to be converted to that use, we would give it to Marc McCune, the prosecutor's office, and let him in turn distribute that through drug buy money or however he wanted to do that. THE COURT: But these funds would not be drug–couldn't be classified then as potential drug buy money? A: No. It had not reached that far yet. THE COURT: But that could have been the use for these funds at some point? A: It could have been; yes, sir. THE COURT: And that is done from time to time by your department? Do you use these funds or similar funds to purchase– A: The Van Buren Police Department itself does not have a so-called drug buy fund. Individual officers, narcotic officers are responsible for drug buy money that they receive from Marc McCune, the Prosecuting Attorney. The city itself does not have [a] so-called drug buy fund account; no. Later, when Molnar was on the witness stand, the district court similarly questioned him about the issue. -3-  THE COURT: Could any of funds that you admittedly embezzled, $50,997, could that have been used for drug buy money in any sense? A: It could have been converted by the prosecutor's office to that, Your Honor, once it's turned over to them. THE COURT: But if the money is not there, you would have difficulty in turning anything over, would you not? A: Yes, sir. Prior to pronouncing sentence, the district court sustained Molnar's two objections to the presentence investigation report (PSIR), reiterated that he had previously notified the parties of his possible intent to impose either an upward departure or variance, and set forth the statutory penalties for the offense. The court found that Molnar's offense level was twelve but added two levels for violation of the fiduciary trust relationship. Molnar's criminal history category was one and the advisory guideline range was ten to sixteen months. After taking one last round of argument from counsel, the court noted it had reviewed the sentencing factors reflected in 18 U.S.C. § 3553(a), and announced that it would sentence Molnar to a term of sixty-months' imprisonment followed by two years of supervised release. The court found that Molnar's crime violated the public trust in law enforcement, stating that "[l]awbreaking by a high-ranking police officer promotes disrespect for the law and must be addressed at this sentencing." The district court also stated it was concerned that "some of these funds that were used and utilized were not available to the DEA where those funds could have been used to purchase drugs from drug dealers, so I think your activities have significantly impaired multiple drug prevention work." Immediately following this statement, the court asked Molnar's counsel whether he had any objections to the court's stated intentions beyond what had already been raised, and counsel replied that he did not have any further objections. -4- II. DISCUSSION Molnar argues that the district court committed a procedural sentencing error by relying on clearly erroneous factual findings with regard to Molnar's actions significantly impairing department drug prevention work, i.e., the inability of the department to use seized funds for "drug buy" money due to Molnar's actions. Because Molnar did not object to this alleged error before the district court, we review for plain error. United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009). To establish plain error, Molnar must prove that (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). An error affects a substantial right if the error was prejudicial. Id. at 734. In the sentencing context, an error is prejudicial only if the defendant proves a reasonable probability that he would have received a lighter sentence but for the error. United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc). However, a fourth Olano factor dictates that we will exercise our discretion to correct such an error only if the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Olano, 507 U.S. at 732 (alteration in original) (internal quotations and citations omitted). We find that the district court's assertion that Molnar's actions hindered drug task force agents from having adequate "drug buy" money was inaccurate and, therefore, was error. And, we find that this error was plain because there was no evidence that undercover drug task force work was actually impaired. Instead, the record showed that Molnar originally became the target of suspicion after the prosecutor noticed he had deposited a $1,000 check for "drug buy" money into his personal account, but Molnar was never accused of embezzling this particular sum of money. With regard to the $19,000 in confiscated funds, while perhaps Molnar's actions delayed the individual with rights to the $19,000 from reclaiming his seized cash in a timely manner, there was no evidence that drug task force agents confronted similar problems. -5-  Furthermore, the error was plain under clearly established Arkansas law, which would not have allowed drug task force officers to walk into the evidence room, take cash, and use the cash to make controlled drug buys. As the Arkansas Court of Appeals noted in State v. Hammame, 282 S.W.3d 278, 281 (Ark. Ct. App. 2008), the process is more complex than that. Instead, a prosecuting attorney must initiate forfeiture proceedings that do not in any way involve the seizing agency. Id.; Ark. Code Ann. § 5-64-505(e),(f),(h),(i). In fact, the seizing agency has no claim to the property unless and until it is ordered forfeited by the court, and even at that point, where the money is distributed is statutorily conditioned. Hammame, 282 S.W.3d at 281. Finally, "known owners or interest holders are entitled to seized property if it is not forfeited." Id. (citing Ark. Code Ann. § 5-64-505(g)(3)(C), (g)(5)(A)(iii)(b)). Accordingly, the seized money being stored in the evidence room certainly could not have been the direct source for "drug buy" money–i.e., a DEA agent could not simply walk into the evidence room, take money, and use it for a drug buy. Furthermore, under the facts of this case, the seized money could not have been an indirect source for "drug buy" money because there is no evidence that the court ordered money forfeited, that forfeited money was designated for use as "drug buy" money, but then the money was unavailable for use. There was simply no testimony or other evidence that drug task force agents were "significantly impaired" in their abilities to perform drug prevention work due to Molnar's actions. Accordingly, the district court's reference to "drug buy" money to justify a substantial upward variance to Molnar's sentence was plain error. The next question is whether this error affected Molnar's substantial rights, which in this context means whether Molnar can prove he would have received a lighter sentence absent the error. Having carefully reviewed the sentencing transcript, we find that Molnar can meet this burden. The district court seemed especially interested in the idea that drug task force agents were hampered in their duties due to money missing from the Van Buren Police Department evidence room. The district -6- court questioned two witnesses about the issue at the sentencing hearing, and reiterated this concern when pronouncing Molnar's sentence. Though the district court did mention one other factor2 in its decision to vary upward, we find that given the extent of the variance, there is a reasonable probability that had the district court not plainly erred in considering the facts relating to "drug buy" money, it would not have varied upward to the extent–275%–that it did. Finally, we consider the fourth Olano factor and find that leaving the error uncorrected would result in a miscarriage of justice substantially affecting the fairness, integrity or public reputation of the proceedings. Olano, 507 U.S. at 732. On numerous past occasions where a defendant has met his burden of proving that there is a reasonable probability he would have received a lighter sentence absent plain error, we have exercised our discretion under the fourth factor and vacated the sentence. E.g., United States v. Nahia, 437 F.3d 715, 717 (8th Cir. 2006) (holding that we felt "compelled" to follow circuit precedent and vacate for resentencing when defendant had met the first three Olano factors, even without a more stringent analysis of the fourth factor). Accordingly, we follow circuit precedent and vacate Molnar's sentence and remand to the district court for resentencing. III. CONCLUSION For the reasons stated herein we reverse the sentence and remand to the district court for resentencing. ______________________________ 2 The district court commented on the defendant's special duty as a police officer not to violate the public trust. We fully agree with the court that this is a very important point. We note, however, that Molnar had already received a two-level role enhancement as part of his sentencing calculation because he was in a position of public trust. PSIR ¶ 20. -7- 

Case: 12-14308 Date Filed: 09/05/2013 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 12-14308 Non-Argument Calendar ________________________ D.C. Docket No. 1:10-cr-00326-TWT-JFK-5 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PETER RAYMOND WILLIAMS, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Northern District of Georgia _________________________ (September 5, 2013) Before TJOFLAT, MARCUS and PRYOR, Circuit Judges. PER CURIAM: Leonard Franco, appointed counsel for Peter Raymond Williams in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18  Case: 12-14308 Date Filed: 09/05/2013 Page: 2 of 2 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel=s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel=s motion to withdraw is GRANTED, and Williams=s conviction and sentence are AFFIRMED. 2 

535 U.S. 1073 LEEv.DOW CHEMICAL CO. ET AL. No. 01-1353. Supreme Court of the United States. May 13, 2002. 1 C. A. 5th Cir. Certiorari denied. JUSTICE O'CONNOR took no part in the consideration or decision of this petition. Reported below: 31 Fed. Appx. 154.

UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS WASHINGTON, D.C. Before J.A. FISCHER, K.M. MCDONALD, D.C. KING Appellate Military Judges UNITED STATES OF AMERICA v. KENNETH R. WALKER CORPORAL (E-4), U.S. MARINE CORPS NMCCA 201400136 SPECIAL COURT-MARTIAL Sentence Adjudged: 15 November 2013. Military Judge: CDR M.N. Fulton, JAGC, USN. Convening Authority: Commanding Officer, Combat Logistics Regiment 3, 3d Marine Logistics Group, Kaneohe Bay, HI. Staff Judge Advocate's Recommendation: LtCol P.D. Sanchez, USMC. For Appellant: Capt David Peters, USMC. For Appellee: LT James Belforti, JAGC, USN; LT Ann Dingle, JAGC, USN. 12 February 2015 --------------------------------------------------- OPINION OF THE COURT --------------------------------------------------- THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2. PER CURIAM: A panel of officer and enlisted members sitting as a special court-martial, convicted the appellant, contrary to his pleas, of two specifications of violating lawful general orders, one specification of using provoking words, one specification of abusive sexual contact, one specification of assault consummated by a battery, 1 and one specification of disorderly conduct in violation of Articles 92, 117, 120, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 917, 920, 928, and 934. The members sentenced the appellant to forfeit $1,010.00 pay per month for two months, 60 days’ confinement, reduction to pay grade E-1, and a bad-conduct discharge. The convening authority (CA) approved the sentence as adjudged and except for the punitive discharge ordered the sentence executed. The appellant asserts two assignments of error. First, he claims that that trial counsel “improperly vouched for the complaining witness against [the appellant] with respect to the wrongful sexual contact charge.” 2 Second, the appellant claims that his conviction for abusive sexual contact is legally and factually insufficient. We disagree. Additionally, although not raised as error, we address whether a number of ambiguities and omissions in the record of trial rises to the level of jurisdictional error and order the supplemental court-martial order to correct a scrivener’s error in the court-martial order dated 7 March 2014. After carefully considering the record of trial and the submissions of the parties, we are convinced that the findings and the sentence are correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ. Background After a night of drinking and dancing, Lance Corporal (LCpl) L invited the appellant and several other Marines back to her barracks room. When they arrived, LCpl L’s roommate, LCpl MR, was already asleep and she awoke only briefly when the group entered her room. LCpl MR then went back to sleep while the group watched a movie in the room. At some point, LCpl L asked everyone to leave so she could go to sleep. The appellant left but later returned to the room and climbed into LCpl MR’s bed where she awoke to the appellant 1 After findings were announced, the military judge granted trial defense counsel’s motion to dismiss the appellant’s conviction for assault consummated by a battery under Article 128, UCMJ, as multiplicious with his conviction for abusive sexual contact under Article 120, UCMJ. 2 Appellant’s Brief of 2 Jul 2014 at 1. 2 “grinding” 3 on her. LCpl MR testified that she ordered the appellant to leave, but he fell back down on her bed. However, according to LCpl MR, a few minutes later the appellant got up and left the room. LCpl MR reported the incident the next day. At trial, Government witnesses gave varying accounts of how much alcohol they observed the appellant consume that night. While being interviewed by the Naval Criminal Investigative Service, the appellant admitted to “waking up in [LCpl MR’s] bed,” 4 but denied any recollection of what otherwise occurred due to being intoxicated and drowsy. The Government also offered evidence at trial that the appellant told the barracks duty that night that he was kicked out of a room because of “something [having] to do with a female.” 5 During closing argument, trial counsel stated: First and foremost, we have the testimony from [LCpl MR]. She was credible. You observed her testify on the witness stand. There’s no reason to believe that what she had to say wasn’t the truth. She was forthcoming. She answered all questions honestly and forthrightly. What she says is corroborated. If you think about it, everything else that she says that can be verified by another person was actually verified by another person. . . . There’s no motivation to fabricate or exaggerate the facts that she has laid out for you. . . . And you have the testimony, once again, of [LCpl MR], whose credibility is not being challenged.” 6 Trial defense counsel made no objection to the Government’s closing argument. Additionally, in her opening statement and closing argument, the trial defense counsel, told the members 3 At trial, LCpl MR described “grinding” as follows: “[k]ind of like, how if you’re try [sic] to, like, penetrate or have that other person feel your private area against you.” Record at 149. 4 Prosecution Exhibit 7. 5 Record at 134-35. 6 Id at 285-87. 3 that LCpl MR “is not lying” 7 and provided testimony that was “consistent with [the appellant’s] explanation.” 8 Improper Argument – Charge I, Specification 1 (Abusive Sexual Contact, Art. 120) The appellant claims that trial counsel’s closing argument wrongfully bolstered LCpl MR’s credibility and the military judge’s failure to sua sponte intercede constitutes plain error. Improper argument is a matter we review de novo. United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). Since the defense counsel failed to object to the argument at trial, we review the appellant’s claim for plain error. Id. “Plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing United States v. Rodriguez, 60 M.J. 87, 88-89) (C.A.A.F. 2004)). When determining whether trial counsel’s comments were improper, the statements “must be examined in light of [their] context within the entire court-martial.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (citation omitted). Error occurs when trial counsel “interject[s] [oneself] into the proceedings by expressing a ‘personal belief or opinion as to the truth or falsity of any testimony or evidence.’” Fletcher, 62 M.J. at 179 (quoting United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980)) (additional citations omitted). The appellant submits that the trial counsel interjected himself into the proceedings when he described LCpl MR as “credible” and “truthful” in his closing statement. We disagree and find that trial counsel’s comments neither improperly bolstered LCpl MR’s credibility nor amounted to him personally vouching for her credibility. Moreover, the trial defense counsel did not attack LCpl MR’s credibility, instead arguing that her testimony was consistent with the defense’s theory that the appellant’s actions were accidental due to his intoxication. When trial counsel’s comments are analyzed in this context, we find that they do not constitute error, let alone plain or obvious error. 7 Id. at 92. 8 Id. at 296. 4 Legal and Factual Sufficiency – Charge I, Specification (Abusive Sexual Contact, Art. 120) The appellant also claims that the evidence is legally and factually insufficient to prove abusive sexual contact because the Government did not produce evidence of the appellant’s specific intent to “to abuse, degrade, or humiliate” LCpl MR. 9 We review questions of legal and factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). We review the legal sufficiency of the evidence by determining “whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987). “The test for factual sufficiency is whether, after weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses as did the trial court, this court is convinced of the appellant’s guilt beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N.M.Ct.Crim.App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ), aff’d, 64 M.J. 348 (C.A.A.F. 2007). Beyond a reasonable doubt, however, does not mean that the evidence must be free from conflict. Id. The Government may prove an appellant’s intent with circumstantial evidence. United States v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014); United States v. Vela, 71 M.J. 283, 286 (C.A.A.F. 2012) Here, the appellant admits to “waking up in [LCpl MR’s] bed” and concedes the possibility that he had physical contact with LCpl MR. 10 The appellant, however, denies having formed the specific intent to sexually assaulting LCpl MR, because he has no recollection of the incident and was highly intoxicated and drowsy at the time. LCpl MR testified that she awoke to the appellant “grinding” on her in a sexual way. Additionally, other evidence in the record corroborates that the appellant returned to LCpl MR’s room and climbed in her bed that night while she was sleeping. We find this persuasive evidence of the appellant’s intent. After carefully reviewing the record of trial and considering the evidence in the light most favorable to the 9 Appellant’s Brief at 1. 10 PE 7. 5 prosecution, we are convinced that a reasonable fact-finder could have found all essential elements beyond a reasonable doubt. Furthermore, after weighing all the evidence in the record of trial and having made allowances for not having personally observed the witnesses, we are convinced beyond a reasonable doubt of the appellant’s guilt. Failure to Formally Enter Pleas and Forum on the Record Although not raised by the appellant as assigned error, we note the military judge failed to ensure that the request for enlisted members was “signed by the accused or . . . made orally on the record.” RULE FOR COURTS-MARTIAL 903(b)(1), MANUAL FOR COURTS- MARTIAL, UNITED STATES (2012 ed.). While this failure represented a violation of Article 25(c)(1), UCMJ, under the circumstances of this case, there was substantial compliance with Article 25 and we see no material prejudice to the appellant’s substantial rights. See United States v. Townes, 52 M.J. 275, 277 (C.A.A.F. 2000). Additionally, there was no error where the appellant failed to enter pleas and the trial proceeded as if the appellant had done so. R.C.M. 910(b). Ambiguous Court-Martial Convening Orders The original charges were referred to trial by special court-martial on 9 July 2014 by Special Court-Martial Convening Order 2-13 dated 24 April 2013. 11 Additional charges were also referred for trial by special court-martial on 9 July 2014 and 11 September 2014 by Special Court-Martial Convening Order 2-13 dated 24 April 2013. The appellant was arraigned on 24 September 2014 during which he was informed of his forum rights and elected to reserve motions, pleas, and forum selection. On 29 October 2014, trial defense counsel informed the Government via email that the forum for the appellant’s trial would be “members with enlisted representation.” 12 On 8 November 2014, the CA issued a Special Court-Martial Convening Order stating that “Special Court-Martial Convening Order 3-13 dated 17 July 2013, is hereby modified for the case of United States versus Corporal Kenneth R. Walker, U.S. Marine Corps, as follows[.]” The CA then proceeded to (1) “Delete” six of the seven members appointed by Special Court-Martial Convening Order 2-13 dated 24 April 2013 and one officer who was not named on that document; (2) “Add[ed]” four new officers and 11 This convening order named seven officer members. 12 Appellate Exhibit XXIII. 6 five enlisted members; and (3) stated that the “special court- martial, as now established, is constituted as follows:” and listed the four officers and five enlisted members whom he had “Add[ed]” earlier in the document. Those members submitted questionnaires which were provided to counsel prior to the next session of the court. 13 A new military judge next opened the court on 12 November 2014. When summarizing an R.C.M. 802 Session held earlier that day, he stated: We discussed a problem with the convening orders in this case insofar as we seem to be missing convening order 3-13. I understand that that will be provided to the record of trial before authentication. But the modifications of 3-13 makes it clear who the convening authority has tasked to sit on this case, so we just need to make sure that that intermediate convening order is part of the record. 14 Shortly thereafter, without the appellant having entered pleas or forum selection, the four officer and five enlisted members listed as establishing the members panel in the Special Court- Martial Convening Order issued on 8 November 2014 entered the courtroom. In response to direction from the military judge, the members affirmed that their names and ranks were correctly reflected on the convening order, were then subjected to voir dire, and were given preliminary instructions to include that “[a]t an earlier session of this court, Corporal Walker pleaded not guilty to the charges and specifications[.]” 15 The appellant challenged five of the members for cause based solely on their responses during voir dire. The panel which was seated on 12 November 2014 ultimately consisted of two officers and 3 enlisted members. The record of trial docketed with this court included Special Court-Martial Convening Order 2-13 dated 24 April 2013, the Special Court-Martial Convening Order issued on 8 November 2014, and a court-martial order dated 15 November 2014 stating that “Special Court-Martial Convening Order 2-13 dated 24 April 2013, is hereby modified for the case of United States versus Corporal Kenneth R. Walker, U.S. Marine Corps, as follows[.]” The CA then proceeded to (1) “Delete” all seven members 13 Record at 24; AE XXII. 14 Record at 9. 15 Id. at 22. 7 appointed by Special Court-Martial Convening Order 2-13 dated 24 April 2013; (2) “Add[ed]” the same four officers and five enlisted members that were “Add[ed] by the 8 November 2014 convening order; and (3) stated that the “special court-martial, as now established, is constituted as follows:” and listed the four officers and five enlisted members whom he had “Add[ed}” earlier in the document. With respect to the confusion surrounding the court-martial convening orders, it is clear that despite the inattention to detail at the command level and of trial counsel, the members present when the court was assembled on 12 November 2014 and who ultimately were impaneled that same day were the members who the CA intended to hear the case. “When there is an ambiguity but no evidence that the convening authority’s intent was to the contrary, ‘the construction of the convening orders by the participants of [the] trial is controlling.’” United States v. Mack, 58 M.J. 413, 416 (C.A.A.F. 2003) (quoting United States v. Gebhart, 34 M.J. 189, 193 (C.M.A. 1992)). Accordingly, there was no jurisdictional error and we see no material prejudice to the appellant’s substantial rights. Conclusion The findings and the sentence as approved by the convening authority are affirmed. The supplemental court-martial order will reflect that Additional Charge IV was a violation of Article 117, UCMJ. For the Court R.H. TROIDL Clerk of Court 8 

976 So.2d 1057 (2006) VALLARIE STEVENSON v. BERT TAYLOR ET AL. No. 1030675. Supreme Court of Alabama. April 28, 2006. Decision of the Supreme Court of Alabama Without Opinion. Reh. denied.

655 P.2d 887 (1982) Richard DANUSER, Claimant-Appellee, v. J.A. THOMPSON AND SON, INC. and Industrial Indemnity Company, Employer, Insurance Carrier-Appellant, and Hi-Way Construction and Contracting and Argonaut Insurance Company, Employer, Insurance Carrier-Appellee, and Special Compensation Fund, Appellee. No. 8068. Intermediate Court of Appeals of Hawaii. December 21, 1982. *889 John A. Roney, Honolulu (Stubenberg & Roney, Honolulu, of counsel), for carrier-appellant. Jeffrey S. Portnoy, Honolulu (Kristin Brandsma, Honolulu, with him on the brief; Cades, Schutte, Fleming & Wright, Honolulu, of counsel), for employer, insurance carrier-appellee. Before BURNS, C.J., and HEEN and TANAKA, JJ. HEEN, Judge. Employer J.A. Thompson and Son, Inc. and its insurance carrier Industrial Indemnity Co. (collectively Thompson), appeal from the May 1, 1980 decision and order of the Labor and Industrial Relations Appeals Board (Board) which found that Thompson was a special employer of claimant Richard Danuser (Danuser) and was therefore required to pay Workers' Compensation benefits to Danuser. The only issue on appeal is whether the Board erred in that finding. We find no error and affirm. In 1973, Thompson was engaged, as a general contractor, in the construction of the Interstate Highway H-2 project between Kipapa Gulch and the Waiahole Ditch. The construction required soil to be moved from one area to another in order to level the ground. This was accomplished by use of a Catscraper. Although Thompson owned several Catscrapers, it had to rent two Catscrapers, together with operators from Hi-Way Transportation and Contracting Co., Ltd. (Hi-Way) in order to complete the project within the contract period. Hi-Way was a construction contractor, but also rented out its equipment and operators. Thompson agreed to pay Hi-Way an hourly rate. Hi-Way maintained the equipment and paid the operators. The operator's hours, pay, vacations, lunch breaks, and other related matters were set by a union contract with Hi-Way. Thompson could not terminate the operators but did have the power to send an operator back and request another if the operator did not produce satisfactory results. Hi-Way's operators were instructed to report to Thompson's job site beginning in March of 1973. Each day, they, along with Thompson's operators, received general instructions regarding their assignments. They were not instructed as to the basic operation of their Catscrapers. Danuser was one of those operators sent over from Hi-Way. In April of 1973 Danuser sustained a lower back injury while working on the Thompson project. He filed a workers' compensation claim with the Department of Labor and Industrial Relations. Hi-Way and Thompson disagreed as to who was liable for Danuser's workers' compensation benefits. On June 21, 1978, the Director of the Department of Labor and Industrial Relations issued a Decision and Order holding Thompson solely liable for the payments. Thompson appealed to the Board. On May 1, 1980, the Board issued its Decision and Order finding that Thompson was the special employer of Danuser and holding that Thompson was solely liable. Thompson's motion for reconsideration was denied by the Board. This appeal followed. Thompson contends that the Board erred in finding that it was the special employer of Danuser and, hence, liable for all of the workers' compensation payments. The Board's determination will not be overturned on appeal unless the record reveals it to be clearly erroneous, or arbitrary, capricious or an abuse of discretion. HRS § 91-14(g) (1976); Yoshino v. Saga Food Service, 59 Haw. 139, 577 P.2d 787 (1978); De Victoria v. H & K Contractors, 56 Haw. 552, 545 P.2d 692 (1976). Under the clearly erroneous standard, this court cannot set aside the findings of an administrative agency except where there is not substantial evidence in the record to support those findings or we are left with the definite and firm conviction that a mistake has been made. DeFries v. Association of Owners, 999 Wilder, 57 Haw. 296, 555 P.2d 855 (1976); De Victoria v. H & K Contractors, supra. A review *890 of the record shows substantial evidence and has not left us with the definite and firm conviction that a mistake has been made. Neither do we find the board's determination to be arbitrary or capricious, Hayes v. Yount, 87 Wash.2d 280, 552 P.2d 1038 (1976); Stempel v. Department of Water Resources, 82 Wash.2d 109, 508 P.2d 166 (1973); Petras v. Arizona State Liquor Board, 129 Ariz. 449, 631 P.2d 1107 (Ariz. App. 1981); Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978), or an abuse of discretion, Title Guaranty Escrow Services, Inc. v. Powley, 2 Haw. App. 265, 630 P.2d 642 (1981); Hawaii Automotive Retail Gasoline Dealers Assn., Inc. v. Brodie, 2 Haw. App. 99, 626 P.2d 1173 (1981); GLA Inc. v. Spengler, 1 Haw. App. 647, 623 P.2d 1283 (1981). Hawaii Revised Statutes (HRS) § 386-1 (1976) defines employee for workers' compensation purposes: "Employee" means any individual in the employment of another person. Where an employee is loaned or hired out to another person for the purpose of furthering the other person's trade, business, occupation, or profession, the employee shall, beginning with the time when the control of the employee is transferred to the other person and continuing until the control is returned to the original employer, be deemed to be the employee of the other person regardless of whether he is paid directly by the other person or the original employer. Under HRS § 386-1, a borrowed employee may be regarded as the employee of the borrowing employer for purposes of workers' compensation benefits notwithstanding the fact that the employee is paid by the original employer. Yoshino, supra. In determining whether a borrowing employer is a "special employer" of a "lent employee" for purposes of workers' compensation, the principal determinant used is control of the employee. Under the control test, it must be shown that the employee was loaned or hired out to the borrowing employer for the purpose of furthering the borrowing employer's trade, business, occupation, or profession and control of the employee was transferred to the borrowing employer. Id.; Harter v. County of Hawaii, 63 Haw. 374, 628 P.2d 629 (1981). Once these conditions are shown, the borrowing employer is considered a "special employer" of the "lent employee" and becomes liable for his workers' compensation benefits if the employee is injured. Thompson clearly qualifies as the special employer of Danuser. Danuser was hired out to Thompson for the purpose of furthering Thompson's trade or business. Thompson was in the business of constructing a roadway and Danuser's efforts furthered that business. Hi-Way, on the other hand, was also in the construction business and normally rented out its equipment only during breaks in its operation. Arguably, Hi-Way benefitted from Danuser's work. However, the fact that labor-loan situations involve a benefit to the original employers' interest does not preclude a finding that the borrowing employers are special employers. Harter v. County of Hawaii, supra. Danuser was injured while performing the same work as Thompson's equipment operators on Thompson's project and was directly furthering the trade or business of Thompson. It is also clear that Thompson controlled Danuser's work, as he was directly supervised by Thompson. Danuser reported daily to Thompson's supervisor for work instructions. The supervisor would inform him and all other Catscraper operators, including Thompson's own men, of the assignments for the day: where to pick up the dirt, where to dump it, and what routes to take. The assignments could be changed at any time and often were. Hi-Way provided no supervision over the operators lent to Thompson. Thompson determined the days on which Danuser did or did not work for whatever reasons, including inclement weather. Neither Danuser nor Hi-Way had any part in those decisions although Danuser's pay was to a large degree determined by those decisions.[1]*891 Additionally, if Thompson felt Danuser's work was inadequate, he could be sent back to Hi-Way and another operator requested. Furthermore, the record indicates that Danuser knowingly consented to the establishment of the employment relationship with Thompson. Harter v. Hawaii County, supra. Danuser willingly went to work for Thompson, submitted himself to Thompson's supervision and considered Thompson his "employer". Thompson contends that the control exercised over Danuser was not so extensive as to satisfy the transfer of control requirement of the rule. Thompson argues that the rule requires a showing of detailed control over Danuser's actual operational performance. However, the mere lack of direction of Danuser's operation of the equipment is not a determinative fact in the question of transfer of control. In situations such as this, deference to the professional skills of the loaned employee is to be expected. See Harter v. County of Hawaii, supra. Certainly Thompson exercised no less control over Danuser than over its own equipment operators. Furthermore, Thompson's right to refuse to use Danuser is the ultimate extension of control over his job performance. The assignment to Thompson was constant and for an extended period. This, as opposed to a sporadic or short durational assignments, tends to support the finding of Thompson's control. Kepa v. Hawaii Welding Co., Ltd., 56 Haw. 544, 545 P.2d 687 (1976). The record contains substantial evidence that control over Danuser was transferred to Thompson at the time of the injury. Affirmed. NOTES [1] The record indicates that on some days when Thompson did not use him, he would report to Hi-Way's yard where, if any work was available, he might be employed.

FILED NOT FOR PUBLICATION SEP 21 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS FOR THE NINTH CIRCUIT EDWARD FINLEY, No. 08-15888 Petitioner - Appellant, D.C. No. 3:05-CV-00152-KJD- VPC v. CRAIG FARWELL; STATE OF MEMORANDUM * NEVADA ATTORNEY GENERAL, Respondents - Appellees. Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding Argued and Submitted August 30, 2010 San Francisco, California Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges. Appellant Edward Finley (Finley) challenges the district court's denial of his petition for writ of habeas corpus. Because Finley's habeas petition was filed after 1996, his claim is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). See Howard v. Clarµ, 608 F.3d 563, 567 (9th Cir. 2010). * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.  Under the AEDPA, Finley's petition can only be granted if the State court's 'adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.' Id. (citations and alteration omitted). Finley contends that the admission of the child-victim's testimony without a competency hearing violated his Sixth Amendment right to confront adverse witnesses. No clearly established federal law connects a competency hearing with an accused's confrontation rights. The absence of any clearly established federal law vitiates a habeas claim under the AEDPA. See Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009) ('When there is no clearly established federal law on an issue, a state court cannot be said to have unreasonably applied the law as to that issue.' (citation omitted)). In addition, the Nevada Supreme Court concluded that '[n]othing in the record suggests that the child-victim . . . was not a competent witness.' We give deference to this conclusion by the state court. See Oxborrow v. Eiµenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (deferring to state court's application of state's sentencing act). Absent a showing in the record of a lacµ of competency on the part of the child-victim, Finley cannot show prejudice. See Maxwell v. Roe, 606 F.3d 561, 567-68 (9th Cir. 2010). 2  Finley also argues that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to request a competency hearing for the child-victim and/or object to the child-victim's testimony on competency grounds. In view of the lacµ of evidence in the record calling into question the competency of the child-victim, Finley cannot demonstrate that trial counsel's representation fell below an objective standard of reasonableness. See Stricµland v. Washington, 466 U.S. 668, 688 (1984); see also Smith v. Robbins, 528 U.S. 259, 288 (2000) (noting that counsel's decision not to pursue a meritless claim does not constitute ineffective assistance of counsel). Finley next asserts that his Sixth Amendment right to effective assistance of counsel was violated when his trial counsel failed to present evidence of a Miranda violation and/or when his appellate counsel failed to raise the Miranda violation issues on direct appeal. The state court concluded that Finley's trial counsel's decision to rely on a coercion argument was a tactical decision and not ineffective assistance of counsel. The state court's decision was not an unreasonable application of Stricµland. See 466 U.S. at 689 (explaining the latitude given attorneys to maµe strategic decisions). The state court also concluded that Finley's challenge to his appellate counsel failure to raise the meritless Miranda violation lacµed merit. See Robbins, 3 528 U.S. at 288. The state court's denial of this claim was not contrary to Federal law. See id. Finally, Finley alleges that the prosecutor engaged in misconduct. It is clearly established federal law that a trial is rendered fundamentally unfair where 'the prosecutors' comments so infected the trial with unfairness as to maµe the resulting conviction a denial of due process.' Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and internal quotation marµs omitted). Finley failed to maµe a showing that his trial was rendered fundamentally unfair by the prosecutor's remarµs. Therefore, the state court decision denying this claim was not contrary to clearly established federal law. See id. AFFIRMED. 4  FILED Finley v. Farwell, No. 08-15888 SEP 21 2010 Tallman, Circuit Judge, Concurring: MOLLY C. DWYER, CLERK U.S . CO UR T OF AP PE A LS I concur in the result. 

13 F.Supp. 253 (1935) BRIDWELL v. ADERHOLD, Warden. JOHNSON v. SAME. Nos. 1029, 1030. District Court, N. D. Georgia. December 19, 1935. Frank A. Doughman, of Atlanta, Ga., for petitioners. Lawrence S. Camp, U. S. Atty., and H. T. Nichols, Asst. U. S. Atty., both of Atlanta, Ga., for respondent. UNDERWOOD, District Judge. Petitioners were defendants in the same indictment, the questions involved in their habeas corpus cases were the same, and they were heard together, though separate orders are entered in each case. Upon the allowance of these writs and the appearance of petitioners, who were men of little education and without counsel or funds to procure same, the court suggested that, if petitioners desired, counsel would be appointed to represent them and aid the court in these proceedings, since the partial hearing then had disclosed that serious questions were involved and that it would be necessary to take testimony in the cases. Such request was made and counsel appointed. The cases were then continued to allow counsel time to prepare same and take testimony. Later the cases came on for hearing upon oral evidence and depositions, and the cases are now ready for disposition. Petitioners were arrested in Charleston, S. C., on November 21, 1934, charged with possessing and uttering counterfeit money. A preliminary hearing was had before the United States Commissioner at which an attorney appeared on their behalf. They were bound over by the Commissioner to await the action of the United States grand jury, and were confined in jail because of their inability to give bail. On January 21, 1935, they were indicted by the grand jury, but were not notified of the finding of the indictment *254 until they were brought into court on January 23, for arraignment and trial. There was some question as to the form of the arraignment, but it was sufficient so far as this proceeding is concerned. Upon arraignment, petitioners pleaded not guilty, and the court asked them if they had counsel, but did not ask them if they wished the court to appoint counsel. Petitioners admit they did not request the court to appoint counsel, but claim that they made such request of the District Attorney, who replied that in the state of South Carolina the court did not appoint counsel unless the defendant was charged with a capital offense. The District Attorney denied this. The court thereupon asked petitioners if they were ready for trial, and they replied in the affirmative and proceeded to trial, although they had just been informed of the finding of the indictment and had no witnesses present, claiming that they relied on the District Attorney's statement that they were not entitled to counsel and that it was too late then to have witnesses subpœnaed. This assertion the District Attorney also denies. Both petitioners lived in distant cities of other states and neither had relatives, friends, or acquaintances in Charleston. Both had little education and were without funds. They testified that they had never been guilty of nor charged with any offense before, and there was no evidence in rebuttal of these statements. Petitioners were arraigned, tried, and convicted on January 23d, and sentence of four years and six months was imposed on each immediately thereafter, about 5:30 p. m. on the same day. They did not then ask for a new trial or inform the court that they wished to appeal the case, or ask for counsel. They were remanded to jail, where they asked the jailer to call a lawyer for them, but were not permitted to contact one. They did not, however, undertake to get any message to the judge. At about 8 o'clock in the morning of January 25th, they were transported by automobile to the Federal Penitentiary in Atlanta, Ga., arriving about 5 p. m. the same day. There, as is the custom, they were placed in isolation and so kept for sixteen days without being permitted to communicate with any one except the officers of the institution, but they did see the officers daily. They made no request of the officers to be permitted to see a lawyer, nor did they ask the officers to present to the trial judge a motion for new trial or application for appeal or notice that they desired to move for a new trial or to take an appeal. On May 15, 1935, petitioners filed applications for appeal which were denied because filed too late. The questions presented in these cases are whether or not petitioners' constitutional right to assistance of counsel has been denied, and whether or not they have been deprived of due process of law; and, if so, whether this court, in a habeas corpus proceeding, can grant relief. There is no evidence in these pleadings tending to show that the trial, apart from the irregularities stated above, was not fair, or that petitioners were innocent. The Sixth Amendment of the Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence." The Fifth Amendment, of course, provides that no one shall be deprived of his life, liberty, or property without due process of law. It will be observed that the guaranty of the right to assistance of counsel and compulsory process for obtaining witnesses is contained in the same clause and expressed in substantially the same language as the guaranty of the right to trial by jury. The amendment guarantees this right to the accused "in any criminal prosecution." There is no limitation of these rights to cases where the accused is charged with a capital offense, as urged by respondent, and no reason appears in logic, morals, or humanity why an accused, in danger of deprivation of his life or liberty, should, in any criminal prosecution, be deprived of these rights by implication. These are fundamental rights which the courts should safeguard with meticulous care and award *255 to the accused, whether requested or not, unless waived by him in a manner showing his express and intelligent consent. This seems to be established by the Supreme Court in the case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 263, 74 L.Ed. 854, 70 A.L.R. 263, in which the court say with reference to the analogous right of trial by jury: "Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity." In this case petitioners were being prosecuted on an indictment of two counts, where a maximum penalty of fifteen years in the penitentiary and a fine of $5,000 on each count might have been imposed. The seriousness of the offense, therefore, called for the caution required by the Supreme Court where there was a departure from "any of the essential elements" of the trial, and it would seem that the technicalities involved in the trial and subsequent possible proceedings for a new trial or an appeal were such as to require the appointment of counsel as an essential element of the trial. "It goes without saying that an accused who is unable by reason of poverty to employ counsel is entitled to be defended in all his rights as fully and to the same extent as is an accused who is able to employ his own counsel to represent him." Downer v. Dunaway (C.C.A.5th) 53 F.(2d) 586, 589. "Under the Sixth Amendment to the Constitution the defendants were entitled to have the assistance of counsel for their defense and also to have compulsory process for obtaining witnesses in their favor. To one accused of crime these are very substantial rights." Paoni v. United States (C.C.A.3rd) 281 F. 801, 803. See, also, Dillingham v. United States (C.C.A.5th) 76 F.(2d) 36. This provision of the amendment "was inserted in the Constitution because the assistance of counsel was recognized as essential to any fair trial of a case against a prisoner." Ex parte Chin Loy You (D.C.) 223 F. 833, 838. The Supreme Court have said with great force, in the case of Powell v. State of Alabama, 287 U.S. 45, 72, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527, that "The necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment." These words would apply, of course, with equal force to the Fifth Amendment. The court goes on to say in this case (287 U.S. 45, at page 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 84 A.L.R. 527), with respect to what a hearing includes, that "the right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him." I am of the opinion, therefore, that petitioners were deprived of their constitutional rights, but the question still remains as to whether or not they can take advantage of this on habeas corpus. The trial court had jurisdiction of the offense and the accused, and there was ample provision of law for appeal. This being true, there is no ground for discharge upon habeas corpus, unless the circumstances subsequent to the trial amount to a deprivation of the opportunity to present a motion for new trial and to take an appeal. A fair opportunity should have been afforded for the presentation of a motion *256 for a new trial or appeal before the period for the allowance of same should lapse. Downer v. Dunaway, supra, 53 F.(2d) 586, pages 589, 590. While the time for filing a motion for new trial and for taking an appeal has been limited to three and five days, respectively, this has been done under proper authority of the Supreme Court, and such does not deprive the accused of due process of law. Something more must appear, and petitioners must show that they exhausted all means open to them to have their case reviewed in accordance with the procedure usual in such cases. Habeas corpus cannot take the place of an appeal. This is too well settled to require citation of authorities. Petitioners did make some effort to have the jailer secure a lawyer for them, but it does not appear that they, at the time sentence was imposed, or at any time thereafter, advised the trial judge or undertook to get notice to him that they desired to file a motion for new trial, or to take an appeal. While the evidence shows that petitioners were confined in jail, nevertheless they had access to the jailer, who doubtless would have transmitted to the judge any message petitioners wished to send, if they had made such request of him. At any rate, it does not appear that he refused such a request or that any was made. It also appears that they were in daily contact with the officers of the penitentiary before the time for taking an appeal had lapsed, but made no request of any of these officials either to get counsel for them or to get notice to the trial judge, nor did they intimate to them in any way that they wished to contest their conviction. There is no evidence or claim that the judge was hostile or prejudiced or swayed by any improper influence, such as that of a mob or of a dominating hostile public opinion, but, on the other hand, it clearly appears that he did not know either of the defendants, that he did not proceed with the trial until after both petitioners had announced that they were ready for trial, and that he did not conduct their case differently from other cases of like kind. It is unfortunate, if petitioners lost their right to a new trial through their ignorance or negligence, but such misfortune cannot give this court jurisdiction in a habeas corpus case to review and correct the errors complained of. Upon the record, therefore, I am of opinion that the facts are not sufficient to justify a finding that the errors complained of were sufficient to make the trial void and justify its annulment in a habeas corpus proceeding, but that they constituted trial errors or irregularities which could only be corrected on appeal. Ex parte Harding, 120 U.S. 782, 7 S.Ct. 780, 30 L.Ed. 824; In re Shibuya Jugiro, 140 U.S. 291, 11 S.Ct. 770, 35 L.Ed. 510. Whereupon, it appearing that the relief sought by petitioners cannot be afforded by habeas corpus, an order has been issued, contemporaneously herewith, in each case discharging the writ and remanding the petitioner to the custody of the respondent.

62 B.R. 465 (1986) In re William David SULLIVAN, Debtor. Judy Faye Carter SULLIVAN (Syron), Plaintiff, v. William David SULLIVAN, Defendant. William David SULLIVAN, Plaintiff, v. Judy Faye Carter SULLIVAN (Syron), Defendant. Bankruptcy No. 585-10084, Adv. Nos. 85-1149, 85-1114. United States Bankruptcy Court, N.D. Mississippi. June 20, 1986. *466 W.H. Jolly, Jr., Threadgill, Smith, Sanders & Jolly, Columbus, Miss., for Judy Faye Carter Sullivan. John W. Crowell, Gholson, Hicks & Nichols, Columbus, Miss., for William David Sullivan. OPINION DAVID W. HOUSTON, III, Bankruptcy Judge. Came on for consideration the complaint to deny dischargeability of a debt, filed by the Plaintiff, Judy Faye Carter Sullivan (Syron), against the Debtor, William David Sullivan; as well as, the complaint to determine the dischargeability of a debt filed by the Debtor, William David Sullivan, against the Defendant, Judy Faye Carter Sullivan (Syron); answers to each of the said complaints being filed by the adverse party; all parties being represented before the Court by their respective attorneys of record; on proof in open court; and the Court having heard and considered same, finds as follows, to-wit: I. This Court has jurisdiction of the subject matter of and the parties to these adversary proceedings pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. These are core proceedings as defined in 28 U.S.C. § 157(b)(2)(I). II. The genesis of this dispute is found in a decree of divorce, entered on November 9, 1983, in the Circuit Court of Mobile County, Alabama. This decree was not the product *467 of a judicial determination, but was entered with the joint consent of William David Sullivan, hereinafter referred to as Debtor, and his former wife, Judy Faye Carter Sullivan, now Syron, hereinafter referred to for purposes of convenience in this Opinion as Plaintiff or Mrs. Syron. The decree incorporated a property settlement agreement executed by both parties which granted custody of their two minor children to the Plaintiff and which contained the following obligations to be performed by the Debtor, to-wit: 1. Debtor shall pay to his former wife as child support the sum of $1,350.00 per month until such time as the house and yard are completed as provided below, at which time the child support shall be adjusted according to circumstances changed at that time, and the defendant shall assume and be responsible for all extraordinary medical and dental expenses of the said minor children and shall maintain in full force and effect a policy of medical and hospitalization insurance . . . and shall also pay all deductible and non-covered expenses for the medical and hospitalization care or treatment of said children. 2. Debtor shall convey to his former wife his interest in jointly owned property in Eight Mile, Alabama. 3. Debtor shall as a property settlement, either assume and be responsible for the cost to reasonably complete the construction and improvement of the house and yard . . . within five (5) years of the date of the judgment of divorce, . . . or to pay to the plaintiff as the costs [sic] to reasonably complete the construction and improvement of the house and yard on said real property, the sum of $8,000.00 on the first day of February and the sum of $8,000.00 on the first day of May of each year for each of the five (5) succeeding years from the date of the judgment herein, . . . (emphasis added) 4. Debtor shall transfer to Plaintiff his interest in the 1983 Oldsmobile and the 1980 Mobile Home, and "assume any and all outstanding indebtedness due thereon and hold plaintiff harmless therefor." 5. Debtor shall maintain and keep in force life insurance policies designating the plaintiff as beneficiary with a face value of $50,000.00 until plaintiff's remarriage. Thereafter the children are to be designated as the beneficiaries. 6. Debtor "shall assume and be responsible for" private school expenses of the children, including tuition, books, fees, uniforms, etc. 7. Debtor shall provide plaintiff with a "reasonable amount of liability and collision insurance on any motor vehicle", as well as, liability and casualty homeowner's insurance until her remarriage. 8. The parties waived all right to alimony, and no order was made as to the same. 9. Debtor "shall assume and be responsible for any and all outstanding debts of the marriage and hold plaintiff harmless therefrom." 10. Judgment shall be entered against the debtor in the amount of $250.00 for the plaintiff's attorney's fees and $84.00 for costs of court. IV. The Plaintiff contends that all of the obligations set forth immediately hereinabove are nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(5). At the same time, the Debtor contends that the statutory language found in that section indicates that most of the obligations are, in fact, dischargeable. 11 U.S.C. § 523(a)(5) reads as follows: (a) The discharge under Sections 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt — . . . . (5) To a spouse, . . . or child of the debtor for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or other order of a court of *468 record or property settlement agreement, but not to the extent that — (A) Such debt is assigned to another entity, voluntarily, by operation of law, or otherwise . . .; or (B) Such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; V. The first task that must be undertaken by this Court is the determination of whether the enumerated obligations are "actually in the nature of alimony, maintenance, or support". To assist in resolving this issue, the Court notes the following factual circumstances that were adduced by the proof, as well as, by the presentation of documentary evidence, to-wit: 1. Pursuant to a Court order entered on July 13, 1984, the Debtor was cited for contempt by the Circuit Court of Mobile County, Alabama, for his refusal to comply with the terms of the decree of divorce and property settlement discussed hereinabove. Additionally, a judgment was awarded against the Debtor in favor of the Plaintiff in the sum of $18,258.45, representing certain moneys that the Debtor was ordered to pay to the Plaintiff in the decree of divorce, to-wit: $16,000.00, representing two $8,000.00, payments which were to be utilized in the construction of the Plaintiff's new residence; $981.00, representing delinquent child support accrued through June, 1984; $432.00, representing private school expenses; $801.45, representing a debt owed to Citicorp for which the Debtor had assumed liability; and $44.00, representing an indebtedness owed to Sears for which the Debtor had also assumed liability. 2. The Debtor's agreement to be responsible for the cost to reasonably complete the construction and improvement of the residence and yard was clearly in the nature of a property settlement. By the terms of the divorce decree, the Debtor conveyed his interest in the real property, as well as, the mobile home which was occupied by the Debtor and the Plaintiff during the course of their marriage. 3. The Plaintiff waived all her right to receive alimony from the Debtor; so consequently, this case now centers on what obligations would not be dischargeable because they are in the nature of support for the children. 4. The monetary obligations assumed by the Debtor total in excess of $38,000.00, annually. This includes the child support to be paid monthly, the construction costs for the residence, and the monthly payments on the various indebtednesses assumed by the Debtor, such as, the automobile payment, the mobile home payment, the payments to Citicorp and Sears, etc. 5. While the Debtor was continuing to operate his business in Mobile County, Alabama, subsequent to the divorce, he paid child support to the Plaintiff at the rate of approximately $310.00, per week. In July, 1984, the Debtor liquidated and closed his Alabama business, then returned to Columbus, Mississippi, where he managed a store for his father. The Debtor has apparently suffered a series of financial setbacks, and is currently working for his father in Brookhaven, Mississippi, earning approximately $250.00, per week, as his "take home" pay. The Plaintiff testified that the Debtor has been paying her child support at the rate of approximately $50.00, per week, and is currently $28,048.92, in arrears since the entry of the divorce decree. The Plaintiff has remarried and her current husband has been paying the automobile indebtedness, the mobile home indebtedness, as well as, other bills, including the insurance premium necessary to cover the Plaintiff's children on a medical and hospitalization policy. The uninsurable medical expenses are not being paid by the Debtor. 6. The Debtor's father testified that the Debtor has been experiencing serious emotional problems for the past several years. He further testified, which testimony this Court finds to be credible, that the Debtor could not resume the level of his former *469 business activities without substantial help from his father. 7. So that the factual circumstances of this case may be set in a proper perspective, the Court observes that the Debtor has conveniently divested himself of two motor vehicles and a fishing boat. Although these three items of property were each encumbered by separate indebtednesses, which were assumed by the three "purchasers", the Debtor still retains the use of one of the motor vehicles and the boat. The second motor vehicle, an automobile, was conveyed to the Debtor's brother for no consideration other than the assumption of the indebtedness encumbering this vehicle. The Court also notes the Debtor's remark that he had no motivation to seek a higher paying job since any excess income would necessarily be payable to his former spouse. 8. Concerning the Debtor's ability to pay, the Court has reviewed the individual income tax returns which were introduced into the proof as Debtor's Exhibits 5, 6, and 7. The analysis of these returns reveals the following: 1983 — The Debtor's taxable business income was reflected as $14,728.00; the business profit and loss statement revealed gross sales of $111,238.00, cost of sales in the sum of $62,995.00, netting a gross income in the sum of $48,243.00; the expense deductions, which did not appear to be extraordinary, totaled $33,515.00; the 1983 year end inventory totaled $29,332.00. 1984 — $5,100.00, was reflected as income from wages or salaries; a business loss of $1,073.77, was deducted from the wages and salaries income netting a taxable income in the sum of $3,826.23; the business profit and loss statement reflected gross sales in the sum of $37,743.57, cost of sales in the sum of $23,795.66, netting a gross income in the sum of $13,947.91; business expenses totaling $15,212.63, were deducted from gross income, producing the aforementioned business loss in the sum of $1,273.77. Since this business was operated for approximately six months in 1984, the only business expense that appears to be slightly exorbitant, compared to the previous year's return, is the expense for wages in the sum of $5,841.07. There is no explanation as to why the beginning inventory listed in the sum of $5,000.00, is significantly different from the previous 1983 year end inventory in the sum of $29,332.00. The 1984 year end inventory appears to be merely estimated at $5,000.00, which necessarily equates the 1984 purchases in the sum of $23,795.66, at the same amount as the cost of goods sold. 1985 — Since the Debtor was no longer engaged in business as a sole proprietor, his taxable income was earned strictly from wages or salaries in the sum of $11,175.00. The only item of unusual significance that is revealed by inspecting the aforementioned tax returns is the total lack of explanation for the depletion of approximately $25,000.00, in inventory from year end 1983 to beginning year 1984. This may or may not impact the ultimate decision in this case. VI. In determining whether the obligations are actually in the nature of alimony, maintenance, or support, this Court is obliged to look to bankruptcy law, rather than state law. State law, however, should not be ignored entirely, but looked to for guidance. In the case of In re Calhoun, 715 F.2d 1103 (6th Cir.1983), Circuit Judge Cornelia G. Kennedy wrote the following: In accordance with the express language of § 523(a)(5) the bankruptcy courts have uniformly required that joint obligations assumed by the debtor as a part of a separation or divorce settlement must be `actually in the nature of' alimony or support in order to be excepted from discharge. [citations omitted] The issue of when an assumption of joint debts is `in the nature of alimony, maintenance, or support' as opposed to a division of communal property is to be determined by federal bankruptcy law. [citations omitted] The legislative history of *470 the provision is unequivocal on this point. Both the House and Senate Reports declare: What constitutes alimony, maintenance, or support, will be determined under the bankruptcy law, not State law. Thus, cases such as In re Waller, 494 F.2d 447 (6th Cir.1974), are overruled, and the result in cases such as Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1952) is followed. The Proviso, however, makes non-dischargeable any debts resulting from an agreement by the debtor to hold the debtor's spouse harmless, on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations as to whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. [emphasis supplied] Id. at 1107 See also, Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984), where Senior Fifth Circuit Judge John Minor Wisdom, writing for the Ninth Circuit, stated that: Because of the federal interests reflected in the Bankruptcy Act, the courts look to federal law to determine whether an obligation is `actually in the nature of . . . support' and is therefore nondischargeable. Stout v. Prussel, 691 F.2d 859, 861 (9 Cir.1982). See Erspan v. Badgett, 647 F.2d 550 (5 Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), in which the court stated that `regardless of how a state may choose to define `alimony', a federal court, for purposes of applying the federal bankruptcy laws, is not bound to a label that a state affixes to an award, and that, consistent with the objectives of federal bankruptcy policy, the substance of the award must govern'. Id. at 555. Applying federal standards, the bankruptcy court determined that the debt at issue in this case was nondischargeable. In re Shaver, 27 B.R. 452 (Bankr.D.Nev.1983). Because the right to a discharge in bankruptcy is a matter generally left to the sound discretion of the bankruptcy judge, we disturb this determination only if we find a gross abuse of discretion. Stout v. Prussel, 691 F.2d 859, 861 (9 Cir.1982); see also In re Williams, 703 F.2d 1055, 1057-58 (8 Cir.1983), and In re Nelson, 20 B.R. 1008 (D.Tenn.1982). Id. at 1316. VII. A four part test has emerged from bankruptcy decisions to provide guidance as to whether a financial obligation is actually in the nature of alimony, support, or maintenance. Bankruptcy Judge Merritt S. Deitz, Jr., in In re Helm, 48 B.R. 215 (Bankr.W.D.Ky.1985) cited with approval the aforementioned test initially advanced in In re Calhoun, supra. Judge Deitz wrote the following: There is a clean geometry about Calhoun. The operative portion of the opinion, lining out the court's reasoning and creating a new cannon for the bankruptcy judge's guidance on remand, establishes four separate levels of judicial analysis. [footnote omitted] They are arranged logically and in ascending order of refinement, so that any given one need be applied only if the one immediately preceding has not produced the solution. Under this progressive formula we are directed to consider whether: (a) the intent of the state court or the parties was to create a support obligation; (b) whether the support provision has the actual effect of providing necessary support; (c) the amount of support is so excessive as to be unreasonable under traditional concepts of support, and finally; (d) if the amount of support is unreasonable, how much of it should be characterized as nondischargeable for purposes of federal bankruptcy law. [emphasis in original] Id. at 220-21. This Court finds the logic expressed in Calhoun and Helm to be extremely persuasive. *471 Consequently, applying the elements of the aforementioned test to the obligations set forth in the Sullivan divorce decree and property settlement agreement, this Court reaches the following conclusions, the majority of which are resolved at the first level of analysis: 1. The obligation to pay for the cost of construction of the residence at the rate of $16,000.00, per year, for five years — Since alimony was specifically waived by the Plaintiff and since this particular provision included the language "as a property settlement", the parties did not evidence the requisite intent that this obligation be considered as support or maintenance. This conclusion is supported by the fact that the Plaintiff and the two children were awarded the mobile home and the real property on which it was located to be utilized by them for residential purposes. This obligation, therefore, is found to be dischargeable in its entirety. 2. Obligations to pay the debt secured by the mobile home, the debt secured by the 1983 Oldsmobile, and all other outstanding debts of the marriage — Again since alimony was waived, this Court finds no requisite intent that these obligations were intended as support or maintenance. However, if such a conclusion is in error, these payments, when added to the monthly sum denominated as child support, which will be discussed hereinbelow, are so unreasonable and unconscionable as to go beyond the traditional concepts of support. Even if these obligations could be considered as being intended for support or maintenance, they fail subparts (b) and (c) of the Calhoun — Helm test discussed hereinabove, and as such, are dischargeable in bankruptcy. 3. The obligation to pay for private school expenses of the children, including tuition, books, fees, uniforms, etc. — This obligation is obviously a luxury and lacks the actual effect of providing necessary support. As such, this obligation is dischargeable in bankruptcy. 4. The obligation requiring the Debtor to maintain life insurance until the Plaintiff's remarriage and thereafter for the benefit of the children — Although the rationale of life insurance in the context of divorce proceedings is to provide a safeguard against the stream of support being terminated because of the parent's death, there was no proof at the trial of this case of any indebtedness that had been created as a result of this obligation. The Court cannot effectively address this obligation at this time, although it will be considered hereinbelow in the discussion of child support. 5. The obligations to pay insurance on the automobile and insurance on the mobile home until the Plaintiff's remarriage — The proof was insufficient to convince this Court that the parties intended these obligations to be actually in the nature of support or maintenance. As such, although no precise indebtedness was established and since the Plaintiff has, in fact, remarried, these obligations are dischargeable in bankruptcy. 6. The obligations to pay Court costs and attorney's fees — Again since alimony was waived by the Plaintiff, these obligations are not in the nature of child support or maintenance, and as such, are dischargeable in bankruptcy. All the obligations have now been addressed with the exception of the child support obligation in the sum of $1,350.00, per month, and the obligation on the part of the Debtor to pay all medical, dental, and hospitalization expenses for the children. These obligations will be discussed hereinbelow. VIII. The obligation to pay child support at the rate of $1,350.00, per month, and the obligation to pay all reasonable medical, dental, and hospitalization expenses for the children are obviously intended as support obligations. Although the discussion may be somewhat academic, these obligations will be reviewed separately. *472 Insofar as the medical, dental, and hospitalization expenses are concerned, the Plaintiff testified that the Debtor was not paying these obligations, but no precise indebtedness was ever mentioned. Although he is not obligated to do so, Mr. Syron, the Plaintiff's current husband, is maintaining medical and hospitalization insurance covering the Debtor's two children. This is certainly commendable on his part. However, since no specific indebtedness was mentioned, this Court can make no disposition of this issue at this time. Ordinarily, these expenses would not be dischargeable in bankruptcy. This presumes, of course, that the child support award is within a reasonable threshold and was not fashioned to include medical, dental, and hospitalization expenses. This also presumes that the obligated spouse has the ability to pay or meet the obligations. As set forth hereinbelow, if the child support award is found to be unreasonably excessive, considering the Debtor's ability to pay, the separate obligation to pay medical, dental, and hospitalization expenses will be considered covered under the umbrella of child support and thus dischargeable. IX. Ordinarily, a payment in a divorce decree or property settlement agreement denominated as child support would be nondischargeable in bankruptcy. In this case, there is no dispute that the amount set as child support was not the product of a judicial determination, but rather the result of an out of court agreement, conceived in this Court's mind with little practical reasoning. There was no feasible way then or now for the Debtor to realistically honor all of the obligations contained in the divorce decree and the property settlement agreement. Considering his 1983 income in the sum of $14,728.00, he could not even meet the child support obligations which total annually the sum of $16,200.00 ($1,350.00, per month × 12 months). Since the Circuit Court of Mobile County did not establish this child support payment on the basis of an evidentiary hearing, this Court does not feel that it is sitting as an appellate court, judging the merits of the state court decision. Therefore, the task now to be undertaken involves weighing the reasonableness of the child support payments, set forth in the Sullivan divorce decree, against the concept of a "fresh start" which is the bedrock of all bankruptcy law. Considering the quantum of proof presented, this task is extremely perplexing. The Calhoun case discussed the effect of providing support necessary to insure that the daily needs of the former spouse and the children of the marriage were satisfied. This discussion followed the determination that the obligation, in that case, was intended by the parties to be in the nature of support or maintenance. Calhoun, however, dealt with the debtor's assumption of debts, jointly incurred with the former spouse, and not child support or maintenance per se. In the case before this Court, this discussion is largely academic in that the assumption must be made that payments designated as child support have the effect of providing support necessary for the Sullivan children. As such, this Court assumes that steps (a) and (b) of the Calhoun test have been met by the Plaintiff. Therefore, let us move to step (c) which requires an examination of whether the obligation assumed is reasonable. Judge Kennedy again offers well reasoned insight in this area with the following comment taken from the Calhoun opinion: Having found that the loan assumption has the effect of providing necessary support, the Bankruptcy Court must finally determine that the amount of support represented by the assumption is not so excessive that it is manifestly unreasonable under traditional concepts of support. Such an excessive allowance is at odds with the fresh start concept underlying federal bankruptcy law. For this reason, the loan assumption should be treated, to the extent possible, the same as ordinary direct child support, or alimony payments. A universal consideration of state courts in setting such direct *473 support payments is the supporting spouse's general ability to pay the support ordered. Under the mandate of Congress that the bankruptcy court fashion a common law of bankruptcy and the principle that one cannot contract away bankruptcy rights, the bankruptcy courts in the case of an obligation to hold the former spouse harmless on joint debts must, therefore, examine the ability to pay. If, at the time the debts were assumed, [footnote omitted] the assumption substantially exceeded a spouse's present and foreseeable ability to pay, the amount of the assumption which exceeded that ability should not be characterized as in the nature of support. We recognize the difficulty of making such a factual inquiry. However, the alternative would be to permit the debtor to contract away the right to discharge in bankruptcy and the opportunity for a fresh start. The inquiry will be limited to whether the amount agreed to is manifestly unreasonable in view of the earning power and financial status of the debtor spouse. If the bankruptcy court finds the loan assumption too excessive to be fairly considered `in the nature of' support it must then set a reasonable limit on the nondischargeability of that obligation for purposes of bankruptcy. Use of factors similar to those a state court would employ to formulate a reasonable limit on support may be used to serve that limiting function in the context of a dischargeability determination. In such cases the bankruptcy courts should consider such traditional state law factors as the relative earning powers of the parties, their financial status, prior work experiences or abilities, other means of support and other facts relevant to the substance of the result achieved by the loan assumption in order to determine how much of the debt assumed can be fairly considered `in the nature of' support for purposes of federal bankruptcy. [footnote omitted] [emphasis in original] In re Calhoun, 715 F.2d 1103 at 1110. Footnote 12 of Judge Kennedy's opinion is also instructive: We emphasize that the nature of this final inquiry as to whether the loan assumptions would constitute an excessive degree of support beyond that which any state court would reasonably allow given the parties' relative circumstances, is a limited one. It is not intended that the Bankruptcy Court sit as a `super-divorce' court. Rather, the purpose of such inquiry is to ensure that the degree of support represented by the loan assumptions, particularly in uncontested cases, does not clearly exceed that which might reasonably have been awarded as support by a state court after an adversarial proceeding. Under the circumstances of this case as set forth earlier in this Opinion, it would literally be impossible for the Debtor to pay child support to his former spouse in the sum of $1,350.00, per month. These payments alone would exceed his total income earned during his most productive years. Although this Court is well aware that the Debtor's former spouse requires child support contributions in order to properly raise her children, a child support obligation that exceeds the Debtor's total income is manifestly unreasonable. On the other hand, this Court will not ignore the Debtor's comment that he has no motivation to increase his income since any additional earnings would merely be payable to his former spouse. The inference is present too that the Debtor may well have kept his income at an artificially lower level to circumvent his support obligations. The proof on this point, however, does not rise to anything more than mere speculation at this time. As set forth in In re Helm, supra, "[t]he fourth and final Calhoun inquiry forces a quantum determination — the establishment of `a reasonable limit' on the dischargeability of that obligation for purposes of bankruptcy." 48 B.R. at 225. Judge Deitz recognized the problem now confronting this court when he stated *474 for we suspect that it is here, if at all, that Calhoun stretches beyond the clear boundaries of the controlling federal statute, 11 U.S.C. § 523(a)(5). That section, it must be noted, draws no dischargeability distinction between `reasonable' and `unreasonable' support; either an obligation is for support, and therefore nondischargeable, or it is not. Given the conceptual framework of Calhoun, and particularly the grant of power to bankruptcy courts to make quantum apportionments, it was inevitable that this tension with the statute would result. Id. X. At the trial of this case, the Plaintiff's attorney objected to the Court considering the issue of dischargeability apportionment of the child support award. The underlying reason voiced for the objection was that the Debtor had not requested such relief in his pleadings. The Plaintiff's attorney is correct in that the pleadings do not contain a request for modification or apportionment for purposes of dischargeability of the support obligations. The pre-trial order, on the other hand, addresses this issue precisely in the contested issues of law and contested issues of fact as perceived by the Debtor. The pre-trial order was entered with the consent of the attorneys for both parties and controls the course of this proceeding. Fed.R.Civ.P. 16(e) The objection, therefore, on the basis of the insufficiency of the pleadings, is not well taken; but, the objection is not overruled at this point for the reason discussed hereinbelow. In order for this Court to make an apportionment as to what amount of the child support award is manifestly unreasonable and therefore dischargeable, competent evidence should be before the Court concerning the needs of the Debtor's two children, the Debtor's living expenses, and otherwise his ability to pay, now and in the future. The Court is of the opinion that it does have the authority to make an apportionment, particularly because there was no judicial determination as to the reasonableness of the child support award in the state court; but such an apportionment must be considered only after a complete presentation of all the relevant evidence, a substantial portion of which was not presented or developed at the trial of this case. Since the Debtor's pleadings did not specifically encompass the apportionment issue, fairness and equity dictate that the Plaintiff should have the opportunity to capably prepare her case as to this issue, utilizing such discovery tools as may be available. The objection, therefore, to considering the issue of apportionment, i.e., the exact extent of the child support award that may be dischargeable, because it is manifestly unreasonable, will be sustained at this time to permit the Plaintiff, as well as, the Debtor, should he so choose, to more fully prepare and develop the evidence pertinent to this issue. Discovery in this case will be reopened for a period of ninety (90) days from the date of this Opinion. At the conclusion of discovery, this case will be reset for the presentation of proof on the limited issue as to the extent of apportionment. An Order will be entered consistent with this Opinion.

42 S.W.3d 846 (2000) MANUFACTURERS CONSOLIDATION SERVICE, INC., Plaintiff/Appellant, and C.O. Turner, III, Intervening Plaintiff/Appellant, v. Rick RODELL, Cornerstone Systems, Inc., Tim Clay, Pat Nieman, Jerry Rice, Bruce Hallmann, Jack Billingsley, Jim Chaltas, Gregg Mitchell, and Angie Taylor, Defendants/Appellees, and Ricardo Fernandez, Guy Wallace and Larry Pritchett, Defendants/Appellants. Court of Appeals of Tennessee, at Jackson. March 10, 2000. Application of Permission to Appeal Denied December 4, 2000. *849 Bruce S. Kramer, Jeffrey C. Smith, Borod & Kramer, P.C., Memphis, for Plaintiff/Appellant, Manufacturers Consolidation Service, Inc., and Intervening, Plaintiff/Appellant, C.O. Turner, III. J. Alan Hanover, James R. Newsom, III, Hanover, Walsh, Jalenak & Blair, PLLC, Memphis, for Defendants/Appellants, Ricardo Fernandez, Guy Wallace and Larry Pritchett, and for Defendants/Appellees Rick Rodell, Cornerstone Systems, Inc., Tim Clay, Pat Nieman, Jerry Rice, Bruce Hallmann, Jack Billingsley, Jim Chaltas, Gregg Mitchell and Angie Taylor. *847 Application of Permission to Appeal Denied by Supreme Court December 4, 2000. *848 FARMER, J. In this consolidated appeal, the parties ask this court to review three separate orders of the trial court. Plaintiff Manufacturers *850 Consolidation Service, Inc. (MCS), appeals the trial court's order dismissing its claims against Rick Rodell, Cornerstone Systems, Inc., and other named Defendants who are former employees of MCS. In the same order, the trial court dismissed the claims of Intervening Plaintiff C.O. Turner, III, against Defendant Rick Rodell, and Turner has appealed this order, as well as a later order of the trial court which granted Rodell's motion for summary judgment on a counterclaim against Turner. Finally, three of the individual Defendants, Ricardo Fernandez, Guy Wallace, and Larry Pritchett, appeal the trial court's order denying their motions to dismiss for lack of personal jurisdiction. We reverse the trial court's order of dismissal to the extent that it dismissed MCS's claims against the Defendants, and we reverse the trial court's order granting Rodell's motion for summary judgment against Turner; however, we affirm the trial court's orders in all other respects. The present proceedings began in August 1997 when MCS filed a multi-count complaint against the Defendants alleging various business torts. Inasmuch as the trial court ultimately dismissed MCS's complaint without addressing its merits, for purposes of this appeal, we will accept as true most of the complaint's allegations.[1] In its complaint, MCS described itself as "an intermodal marketing company which arranges intermodal transportation services for shippers of full trailerloads of cargo from point of origin to point of delivery." MCS contracts with railroads to haul the cargo over long distances, and it contracts with over-the-road and local trucking companies to deliver cargo to, and pick up cargo from, rail ramps. MCS is a Tennessee corporation, and its principal place of business is in Memphis. Prior to the dispute that precipitated this litigation, Defendant Rick Rodell was the president and fifty percent (50%) shareholder of MCS. As the result of a previous lawsuit brought by Intervening Plaintiff C.O. Turner, III, to enforce a contract for the sale of stock, Rodell sold his 50% interest in MCS to Turner in April 1997. In connection with the sale, Turner, on behalf of MCS, and Rodell executed a management contract pursuant to which Rodell agreed to perform management consulting services for MCS for an eight-year term. MCS agreed to pay Rodell a total of $2 million under the contract at the rate of $250,000 per year. In addition, Turner signed a promissory note in his individual capacity promising to pay Rodell the sum of $1 million over a five-year period. The promissory note specified that the first installment of $100,000 would be due on April 14, 1998, the one-year anniversary of the stock sale. After the sale, Turner became the president and sole shareholder of MCS. Approximately one week after the sale was consummated, Rodell incorporated a new company, Cornerstone Systems, Inc., and he became its president. Like MCS, Cornerstone is an intermodal marketing company based in Memphis, Tennessee. MCS's complaint asserted causes of action against the Defendants for misappropriation of trade secrets and unfair trade practices, procurement of breach of contract, intentional interference with business relationship, civil conspiracy, and breach of fiduciary duty. In addition, the complaint asserted claims for defamation *851 against some of the Defendants and a claim for breach of management contract against Rodell. In support of these claims, the complaint alleged that, both prior and subsequent to the closing of the sale of Rodell's MCS stock to Turner, Rodell and the other Defendants solicited MCS employees to leave MCS and to work with Rodell and Cornerstone. According to the complaint, the Defendants deliberately set out to recruit many of MCS's key operations, sales, and administrative personnel. To substantiate these allegations, the complaint asserted that on June 16, 1997, Larry Pritchett, Ricardo Fernandez, and all of the employees in MCS's Chicago, Illinois, office resigned en masse. The complaint further asserted that on June 17 and 18, 1997, Guy Wallace and all of the employees in MCS's Portsmouth, Virginia, office resigned en masse. The resigning employees sent similar letters of resignation to MCS's corporate office in Memphis. At the time the complaint was filed, all of Cornerstone's employees were former MCS employees. The complaint further alleged that the Defendants, using their knowledge of MCS's contracts and business relationships, solicited MCS's customers to terminate their contracts and business relationships with MCS and to enter into contractual and business relationships with Cornerstone. According to the complaint, the Defendants created confusion as to the source of services provided by both MCS and Cornerstone, at times representing that MCS was changing its name to Cornerstone. The complaint additionally asserted several defamation claims, including one alleging that Defendant Ricardo Fernandez stated to Mountain Intermodal that "MCS was going under" and that Fernandez was going with a new company. The complaint alleged that all of the Defendants engaged in a civil conspiracy to misappropriate MCS's confidential and/or proprietary information, to engage in unfair trade practices, and to destroy MCS's business by inducing the breach of existing contracts and business relationships between MCS and its key employees, customers, carriers, and vendors. The complaint claimed that these and other actions by the Defendants constituted breaches of their duties of loyalty to MCS. Three of the Defendants, Ricardo Fernandez, Guy Wallace, and Larry Pritchett, responded to MCS's complaint by filing motions to dismiss for lack of personal jurisdiction. In support of their respective motions to dismiss, the three Defendants submitted virtually identical affidavits that contained the following statements: that, prior to June 1997, the Defendants were employed by MCS on an at-will basis; that they never executed any sort of noncompetition or confidentiality agreements; that they carried out all of their responsibilities for MCS in their respective home states; that they were not required to visit the state of Tennessee or to work in Tennessee as part of their responsibilities for MCS; that they, in fact, did not visit or work in Tennessee as part of their responsibilities for MCS; that they terminated their respective relationships with MCS in June 1997 of their own free wills; that they were not induced to leave MCS by Rodell or Cornerstone; and that, to the contrary, they initiated contact with Rodell regarding possible employment opportunities. The Defendants' affidavits concluded by denying that they were disloyal to MCS and, in Fernandez's case, by further denying that he had defamed MCS. The trial court denied the three Defendants' motions to dismiss. Subsequently, the trial court and this court granted the Defendants' application for permission to *852 pursue an interlocutory appeal before this court. See Tenn.R.App. P. 9. In its order granting permission to appeal, the trial court explained why it denied the Defendants' motions to dismiss: [MCS] urges the Court to find that the jury could find that Movants, together with the other defendants herein, participated in a civil conspiracy to do harm to [MCS], a Tennessee corporation, each Movant having acted in his own state of residence to do so. Part of Movants' alleged activity had to do with leaving employment with one Tennessee corporation and taking employment with another Tennessee corporation in direct competition and in an effort to pirate the business of [MCS]. The Court agrees that these facts are sufficient to support [MCS's] contention that minimum contacts with the forum state do exist, as is constitutionally required. . . . . . . . . . . Among those acts, [MCS] claims that Movants impermissibly solicited then current employees of [MCS] who worked in the same offices as they did to terminate their employment with [MCS] to work for Defendant Cornerstone, resulting in the en masse resignations of the entire Chicago, Illinois and Portsmouth, Virginia office[s] of [MCS] and the transmission, via facsimile, to [MCS's] corporate office in Tennessee of notices of resignation by employees from said offices. . . . . . . The Complaint does not allege that any of the complained of acts generally attributed to all defendants occurred in the State of Tennessee insofar as the Movants are concerned, but the Court believes that such general allegations are sufficient among other factors . . . to establish the "minimum contacts" necessary to provide this Court with jurisdiction over Movants. In April 1998, C.O. Turner, III, filed a motion for permission to intervene in this lawsuit. In his proposed complaint, which named only Rick Rodell as a defendant, Turner sought a declaratory judgment that the $1 million promissory note signed by him in connection with his purchase of Rodell's interest in MCS was unenforceable because of a lack of consideration. Specifically, Turner contended that the promissory note lacked consideration because Turner did not receive a personal benefit in exchange for his execution of the promissory note. In his proposed complaint, Turner also asked the trial court to enjoin Rodell "from commencing or prosecuting any other action regarding the payment of the Promissory Note." When he filed the motion to intervene, Turner deposited the sum of $100,000 with the court clerk, the amount of the first installment due under the promissory note. The trial court entered an order directing the court clerk to invest the funds in a bank account "at the highest prevailing interest rate available for the benefit of Intervenor pending this litigation and further Order of the Court." Rodell objected to Turner's motion to intervene on the ground, inter alia, that "[t]he issue raised by the intervenor regarding the note [was] strictly between the intervenor and Rodell and [had] no place in this litigation involving many defendants unconnected with this transaction." Rodell also argued that Turner's deposit of the first installment with the court clerk did not constitute payment as required under the note, and Rodell stated his intention to declare the note in default and to accelerate payment due of the entire note. Despite these objections, the trial court entered an order granting Turner's motion to intervene on June 8, 1998. In its order, the trial court indicated that it would grant *853 Turner's request for preliminary injunctive relief upon his posting a bond in an amount required by the court. To this end, the order enjoined Rodell from "commencing or prosecuting any other action regarding the payment of the Promissory Note dated April 14, 1997, which is the subject of the intervening complaint, pending resolution of the declaratory judgment complaint, upon the plaintiff posting a corporate bond in the amount of $1,600,000.00." Turner subsequently filed his complaint for declaratory and injunctive relief against Rodell; however, Turner did not post the $1.6 million bond referenced in the trial court's June 8 order allowing intervention. Rodell filed an answer to Turner's complaint and a counterclaim in which he contended that Turner had defaulted on the note. Rodell later filed a motion for summary judgment as to Turner's intervening complaint in which he argued, on various grounds, that the complaint should be dismissed on the merits. On September 3, 1998, the trial court entered a supplemental order again granting Turner's motion to intervene. In its supplemental order, however, the trial court explained that the $1.6 million bond referenced in the court's June 1998 order was a condition precedent to allowing Turner to intervene in this action. Accordingly, the trial court ordered Turner to post the required bond within ten days of entry of the supplemental order. On September 15, 1998, when Turner still had not posted the $1.6 million bond, Rodell filed a Petition for Scire Facias and Citation for Contempt against Turner based upon his failure to post the bond. As a remedy for Turner's alleged contempt, Rodell asked the trial court to impose one of the punishments set forth in Tennessee Code Annotated sections 29-9-103[2] and 29-9-104[3] and/or to dismiss Turner's intervening complaint under the authority of Tennessee Rule of Civil Procedure 41.02.[4] Rodell also suggested that the trial court "dismiss the entire case," including MCS's complaint against the various Defendants, "[s]ince Turner is the sole stockholder of MCS." On October 9, 1998, the trial court entered an order finding both of the Plaintiffs *854 to be in contempt of court and, as sanctions, dismissing both Turner's intervening complaint and MCS's original complaint. Specifically, the trial court found that the Plaintiffs are in contempt of this Court for the failure of the plaintiff-intervenor, C.O. Turner III, who is also the sole stockholder of the plaintiff, [MCS], to make a bond in the proper form and manner in the amount of $1,600,000 as ordered by this Court by the orders entered June 8, 1998, and September 3, 1998, which bond was expressly ordered by the Court as a condition precedent for the intervention of [Turner], pursuant to Rules 24 and 65 of Tennessee Rules of Civil Procedure." Citing rule 41.02 and the court's inherent authority to punish for contempt, the trial court dismissed MCS's complaint and Turner's intervening complaint "with prejudice on the merits" due to Turner's "willful contempt" and "failure to comply with the [court's] orders." Upon its express determination that there was "no just reason for delay," the trial court directed the entry of a final judgment as to MCS's and Turner's respective claims. See Tenn.R.Civ.P. 54.02. Both MCS and Turner timely appealed the trial court's order of dismissal. After the trial court entered its order of dismissal, Rodell amended the motion for summary judgment in which he previously had asked the trial court to dismiss Turner's intervening complaint on the merits. In his amended motion, Rodell asked the trial court to grant the additional relief of entering summary judgment in his favor on his counterclaim against Turner. In December 1998, the trial court finally disposed of all the claims in this action when it entered summary judgment in favor of Rodell on his counterclaim on the note. The trial court awarded Rodell the principal amount of $1 million, plus interest and attorney's fees. Turner again filed a notice of appeal, this time referencing the summary judgment entered in favor of Rodell. For purposes of hearing, this court consolidated the parties' appeals. I. Order Denying Three Defendants' Motions to Dismiss for Lack of Personal Jurisdiction On appeal, Defendants Fernandez, Wallace, and Pritchett contend that the trial court erred in denying their motions to dismiss because they lack sufficient contacts with the state of Tennessee to support the trial court's exercise of personal jurisdiction over them. In support of this contention, the Defendants cite the unrefuted assertions contained in their affidavits, specifically, that they had at-will relationships with MCS, that they performed all of their work for MCS in their respective states of residence, that they performed no work in the state of Tennessee, and that they had not visited the state of Tennessee. The Defendants further contend that the trial court erred in finding jurisdiction based upon the conspiracy theory of jurisdiction because this doctrine has not been, and should not be, embraced by the courts of this state. The plaintiff in an action bears the burden of establishing a prima facie case that exercising personal jurisdiction over the defendant is proper. Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 577 (Tenn.Ct.App.1992); accord CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir.1996); Market/Media Research, Inc. v. Union-Tribune Publ'g Co., 951 F.2d 102, 104 (6th Cir.1991), cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992); Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991); Serras v. First Tennessee Bank Nat'l Ass'n, 875 F.2d 1212, 1214 (6th Cir.1989). If the defendant challenges the trial court's personal jurisdiction over him *855 by filing a properly supported motion to dismiss, "the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction." Theunissen, 935 F.2d at 1458; accord Serras, 875 F.2d at 1214. In ruling on the defendant's motion to dismiss for lack of personal jurisdiction, however, the trial court is required to construe the pleadings and affidavits in the light most favorable to the plaintiff. Chase Cavett Servs., Inc. v. Brandon Apparel Group, Inc., No. 02A01-9803-CH-00055, 1998 WL 846708, at *1 (Tenn.Ct.App. Dec.7, 1998) (no perm. app. filed); accord CompuServe, 89 F.3d at 1262; Market/Media Research, 951 F.2d at 104; Theunissen, 935 F.2d at 1459; Serras, 875 F.2d at 1214. Under this standard, dismissal is proper only if all of the specific facts alleged by the plaintiff collectively fail to state a prima facie case for jurisdiction. CompuServe, 89 F.3d at 1262; Market/Media Research, 951 F.2d at 105; Theunissen, 935 F.2d at 1459.[5] Tennessee's long-arm statute permits the courts of this state to exercise jurisdiction upon, inter alia, "[a]ny basis not inconsistent with the constitution of this state or of the United States." Tenn.Code Ann. §§ 20-2-214(a)(6), 20-2-225(2) (1994 & Supp.1997). When a state's long-arm statute authorizes the assertion of personal jurisdiction to the limits of federal due process, as does Tennessee's long-arm statute, the issue becomes simply whether the trial court's exercise of personal jurisdiction over the defendant meets due process requirements. Coblentz GMC/Freightliner, Inc. v. General Motors Corp., 724 F.Supp. 1364, 1368 (M.D.Ala. 1989), aff'd, 932 F.2d 977 (11th Cir.1991). Following the United States Supreme Court's lead, the Tennessee Supreme Court has adopted the "minimum contacts" test for determining when the courts of this state may exercise personal jurisdiction over a nonresident defendant. Davis Kidd Booksellers, Inc. v. Day-Impex, Ltd., 832 S.W.2d 572, 574-75 (Tenn.Ct.App.1992) (citing Masada Inv. Corp. v. Allen, 697 S.W.2d 332, 334 (Tenn.1985)). In adopting this test, our supreme court explained that due process requires that a non-resident defendant be subject to a judgment in personam only if he has minimum contacts with the forum such that "the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.;'" International Shoe *856 Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). However, the absence of physical contacts will not defeat in personam jurisdiction where a commercial actor purposefully directs his activities toward citizens of the forum State and litigation results from injuries arising out of or relating to those activities. Burger King Corp. v. Rudzewicz, [471 U.S. 462, 472], 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985). In such a case, "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Masada Inv. Corp. v. Allen, 697 S.W.2d 332, 334 (Tenn.1985). At the time Fernandez, Wallace, and Pritchett sought permission to appeal the trial court's order denying their motions to dismiss, the appellate courts of this state had not specifically adopted the conspiracy theory of jurisdiction. Although prior opinions of both this court and our supreme court had hinted at the viability of such a theory, the courts apparently had not been required to directly address the issue. See, e.g., Budget Rent-A-Car of Knoxville, Inc. v. Car Servs., Inc., 225 Tenn. 342, 469 S.W.2d 360, 361 (Tenn.1971) (concluding that defendants were not subject to Tennessee court's personal jurisdiction because record contained nothing to establish any presence or activity in Tennessee by defendants or by anyone representing them incidental to alleged conspiracy on which suit was grounded); Putnam v. Putnam, No. 02A01-9511-CH-00250, 1996 WL 740807, at *3 (Tenn.Ct.App. Dec. 30, 1996) (no perm. app. filed) (concluding that defendant was not subject to Tennessee court's personal jurisdiction because alleged conspiracy occurred in Alabama). After oral arguments were heard in this case, this court issued an opinion in which it specifically adopted the conspiracy theory of jurisdiction. In Chenault v. Walker, No. W1998-00769-COA-RM-CV, 2000 WL 145062, slip op. at 14-15 (Tenn.Ct.App. Feb. 9, 2000),[6] we concluded, as had courts in other jurisdictions, that the exercise of personal jurisdiction pursuant to this theory comported with constitutional due process requirements. In articulating the conspiracy theory of jurisdiction, we quoted extensively from the decision of a Maryland federal district court: [The conspiracy theory of jurisdiction] is based on two principles: (1) that the acts of one co-conspirator are attributable to all co-conspirators, McLaughlin v. Copeland, 435 F.Supp. 513, 530 (D. Md. 1977) ("McLaughlin"); and (2) that the constitutional requirement of minimum contacts between non-resident defendants and the forum can be met if there is a substantial connection between the forum and a conspiracy entered into by such defendants. Vermont Castings, Inc. v. Evans Products Co., 510 F.Supp. 940, 944 (D.Vt.1981). The conspiracy theory of jurisdiction as developed *857 in the cases, holds that when several individuals (1) conspire to do something (2) that they could reasonably expect to have consequences in a particular forum, if one co-conspirator (3) who is subject to personal jurisdiction in the forum (4) commits overt acts in furtherance of the conspiracy, those acts are attributable to the other co-conspirators, who thus become subject to personal jurisdiction even if they have no other contacts with the forum. . . . . . . . However, in several cases in which the conspirator who committed the overt acts was a resident of the forum, courts have required only that "substantial acts" in furtherance of the conspiracy be committed in the forum. . . . While these courts did not address the point explicitly, the only reasonable interpretation of this standard is that the acts committed in furtherance of the conspiracy must be of a type that, if committed by the non-resident co-conspirators themselves, . . . would have provided a basis for subjecting the non-residents to personal jurisdiction under the forum's long-arm statute. If the overt acts do not meet this standard, it would be patently unfair to subject those non-residents to personal jurisdiction via the conspiracy theory, under which the non-residents' contacts with the forum are less direct. All this suggests a need for a simplified articulation of the conspiracy theory of jurisdiction. Under that doctrine, when (1) two or more individuals conspire to do something (2) that they could reasonably expect to lead to consequences in a particular forum, if (3) one co-conspirator commits overt acts in furtherance of the conspiracy, and (4) those acts are of a type which, if committed by a non-resident, would subject the non-resident to personal jurisdiction under the long-arm statute of the forum state, then those overt acts are attributable to the other co-conspirators, who thus become subject to personal jurisdiction in the forum, even if they have no direct contacts with the forum. Cawley v. Bloch, 544 F.Supp. 133, 134-35 (D.Md.1982) (citations and footnotes omitted), quoted in Chenault v. Walker, No. W1998-00769-COA-RM-CV, slip op. at 14-15 (Tenn.Ct.App. Feb. 9, 2000). Viewing the assertions contained in the pleadings and affidavits in the light most favorable to MCS, we hold that these assertions are sufficient to support the trial court's exercise of jurisdiction over these Defendants pursuant to the conspiracy theory of jurisdiction. In its complaint, MCS alleged that the Defendants, including Fernandez, Wallace, and Pritchett, conspired to induce MCS's employees and customers to breach their existing contracts with MCS and to form new contracts with Cornerstone. In doing so, the Defendants allegedly misled customers by representing that MCS and Cornerstone were the same entity, and they allegedly misappropriated MCS's confidential and/or proprietary information. If these allegations are true, the Defendants reasonably could expect their actions to lead to consequences in the state of Tennessee, inasmuch as both MCS and Cornerstone are Tennessee corporations having principal places of business in Memphis. Moreover, Defendant Rick Rodell allegedly directed and performed his part of the conspiracy from his home state of Tennessee. In furtherance of the conspiracy, Rodell incorporated Cornerstone Systems, Inc., in Tennessee, and, on behalf of his new corporation, he recruited many of *858 MCS's key employees, some of whom worked in MCS's Memphis office. According to the complaint's allegations, Rodell and the other Defendants also induced all of MCS's employees in both the Portsmouth, Virginia, office and the Chicago, Illinois, office to resign en masse and to transmit their letters of resignation to MCS's corporate office in Memphis. In our view, the overt acts allegedly committed by Rodell in furtherance of the conspiracy would be sufficient to subject a nonresident to personal jurisdiction under this state's long-arm statute. Accordingly, these acts may be attributed to the Defendants for purposes of exercising personal jurisdiction over them. On appeal, the Defendants suggest that this court's adoption of the conspiracy theory of jurisdiction represents a departure from traditional minimum contacts analysis. We disagree. As explained by the Supreme Court of Delaware when it adopted the conspiracy theory of jurisdiction, a defendant who has so voluntarily participated in a conspiracy with knowledge of its acts in or effects in the forum state can be said to have purposefully availed himself of the privilege of conducting activities in the forum state, thereby fairly invoking the benefits and burdens of its laws. . . . It can further be said that such participation is a substantial contact with the jurisdiction of a nature and quality that it is reasonable and fair to require the defendant to come and defend an action there. Additional contacts would of course make even more equitable the [exercise of] jurisdiction. Istituto Bancario Italiano SpA v. Hunter Eng'g Co., 449 A.2d 210, 225 (Del.1982) (citation omitted).[7] The Court of Appeals of Georgia provided a similar rationale when it adopted the conspiracy theory of jurisdiction, explaining that [w]hen the purpose of a conspiracy is to commit an intentional tort against a Georgian, all of the coconspirators are purposefully directing their activities toward Georgia and should reasonably anticipate being haled into court here. . . . In this case, . . . the alleged conspiracy targeted a Georgia resident specifically. Thus, the nonresident conspirators purposefully directed their activities toward Georgia, and could reasonably expect to be haled into court here. Accordingly, the imputation to them of the instate acts of their coconspirator to satisfy the requirements of the Georgia Long Arm Statute is not precluded by due process concerns. Rudo v. Stubbs, 221 Ga.App. 702, 472 S.E.2d 515, 517 (1996) (citation and footnote omitted). We conclude that the same rationale applies in the present case. If the allegations of MCS's complaint are true, the Defendants have conspired with a Tennessee resident to commit one or more intentional torts against a Tennessee corporation. *859 One of the alleged conspirators, Rick Rodell, was a Tennessee resident and the president of a Tennessee corporation, Cornerstone Systems, Inc. The alleged conspiracy specifically targeted another Tennessee corporation, MCS. Under these circumstances, the nonresident conspirators, including Fernandez, Wallace, and Pritchett, have purposefully directed their activities toward Tennessee and should reasonably anticipate being haled into court here. Accordingly, due process concerns do not preclude the trial court from exercising personal jurisdiction over these Defendants. We further note that, although they seek to minimize such contacts, the Defendants themselves have contacts with the state of Tennessee. The Defendants were employed by MCS, a Tennessee corporation. Although the events surrounding their resignations from MCS were disputed, the parties did not dispute that the Defendants resigned from MCS and immediately began working for another Tennessee corporation, Cornerstone. The Defendants acknowledged contacting Rodell, a Tennessee resident, about employment opportunities, and they sent copies of their resignation letters to MCS's corporate office in Memphis. Even if these contacts are insufficient, by themselves, to subject the Defendants to the trial court's jurisdiction, we conclude that these additional contacts weigh in favor of the trial court's decision to exercise jurisdiction over them.[8] Citing Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir.1974), the Defendants insist that they were entitled to dismissal of the action against them based upon MCS's failure to respond to the affidavits that the Defendants filed in support of their motions to dismiss for lack of personal jurisdiction. In Weller, the court held that, where a motion to dismiss for lack of personal jurisdiction is filed and is supported by affidavits, the plaintiff may not rest upon the allegations of his complaint. Instead, the plaintiff must respond, by affidavit or otherwise, and "must set forth specific facts showing that the court has jurisdiction." Weller, 504 F.2d at 929-30. As pointed out by the Defendants, when presented with their motions to dismiss, MCS did not respond, by affidavit or otherwise, but instead chose to rely upon the allegations contained in its complaint. Despite MCS's failure to respond, we hold that Fernandez, Wallace, and Pritchett were not entitled to dismissal of the action against them. We agree with the statement that, "in the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction." Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citing Weller, 504 F.2d at 930). The key to this statement of procedural law, however, is that the motion to dismiss must be "properly supported." Id. In ruling on a motion to dismiss for lack of *860 personal jurisdiction, the trial court must presume that the complaint's allegations are true to the extent they are not contradicted by the parties' affidavits. American Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V., 710 F.2d 1449, 1454 (10th Cir. 1983). In our view, therefore, a defendant's motion to dismiss is not "properly supported" by his affidavit unless the affidavit effectively negates the jurisdictional allegations of the plaintiff's complaint. As we previously discussed, the Defendants' motions to dismiss in this case were supported by affidavits which asserted merely that the Defendants were employed by MCS on an at-will basis, that they never executed any sort of noncompetition or confidentiality agreements, that they carried out all of their responsibilities for MCS in their respective home states, that they were not required to visit the state of Tennessee or to work in Tennessee as part of their responsibilities for MCS, that they terminated their respective relationships with MCS of their own free wills, that they were not induced to leave MCS by Rick Rodell or Cornerstone, that they initiated contact with Rodell regarding possible employment opportunities, and, finally, that they had not been disloyal to MCS. Although the Defendants' affidavits emphasized their lack of physical contacts with the state of Tennessee, they did little to rebut many of the jurisdictional allegations of MCS's complaint. For example, the affidavits did not contradict the complaint's assertions that the Defendants conspired with Rodell to induce customers and other employees to terminate their relationships with MCS, nor did they deny that the en masse resignations of MCS's employees in Chicago and Portsmouth resulted from a common scheme. Moreover, although the affidavits asserted that Rodell did not induce the Defendants to terminate their employment with MCS and that they, in fact, initiated contact with Rodell, such assertions are not necessarily inconsistent with the complaint's allegations that Rodell and the Defendants entered into a conspiracy to interfere with MCS's contracts and to misappropriate MCS's confidential and/or proprietary information. Although the Defendants claimed to have initiated contact with Rodell, for instance, they could later have entered into a conspiracy with Rodell based upon the conversations that occurred during their initial contacts. And, although their affidavits generally denied that the Defendants were disloyal to MCS, the affidavits did not address the complaint's allegations that the Defendants misappropriated MCS's confidential and/or proprietary information. Inasmuch as the Defendants' affidavits failed to effectively negate the jurisdictional allegations of MCS's complaint, MCS's decision to rest upon the allegations of its complaint was not fatal to its action against Fernandez, Wallace, and Pritchett. We also reject the Defendants' argument that MCS's complaint failed to establish a prima facie case that jurisdiction existed because the complaint contained only generalized allegations of a conspiracy without including any specific factual allegations that these Defendants engaged in misconduct. We agree with the observation of one federal court when it stated that "a plaintiff should not be permitted to hale a defendant into court based only on a bald-faced, conclusory assertion of conspiracy with no supporting factual allegations." Thompson Trading Ltd. v. Allied Lyons PLC, 124 F.R.D. 534, 537 (D.R.I. 1989). The same court also noted, however, that conspiracy is an activity which by its very nature is not done in the open for *861 all to see. Since defendants are likely in control of any relevant evidence, it would be manifestly unfair to force plaintiff to plead specific facts proving particular conspiratorial acts prior to giving plaintiff the opportunity to conduct discovery. Id.; accord General Motors Corp. v. Lopez, 948 F.Supp. 656, 664 (E.D.Mich.1996) (indicating that "[t]otally unsupported conspiracy allegations do not support jurisdiction" but that, "[a]t the same time, it is not fair to require a plaintiff to plead specific facts proving conspiracy before discovery"), quoted in Chenault v. Walker, No. W1998-00769-COA-RM-CV, slip op. at 13 (Tenn.Ct.App. Feb. 9, 2000). At this stage in the proceedings, a plaintiff need only plead sufficient factual allegations from which the existence of a conspiracy may be inferred. Thompson Trading, 124 F.R.D. at 536. After carefully reviewing the complaint in this case, we hold that MCS has pled sufficiently specific factual allegations to withstand the Defendants' motions to dismiss. See id. at 536-37. II. Order Dismissing MCS's and Turner's Complaints Due to Turner's Failure to Post Bond We likewise affirm the dismissal of Turner's intervening complaint against Rodell. On appeal, Turner attacks the order of dismissal on several grounds. Turner first contends that the trial court improperly required him to post a $1.6 million bond as a condition to intervening in this action. Turner points out that the trial court's original order allowing him to intervene, dated June 8, 1998, required him to post the bond only as a condition to obtaining injunctive relief, not as a condition to intervening in the action. The trial court did not specify that the bond was a condition to intervening in the action until September 3, 1998, when the court entered its supplemental order. Turner contends that he effectively abandoned his claim for injunctive relief when he did not post the $1.6 million bond and that the trial court should not have continued to impose this requirement. We conclude that these arguments are without merit. The trial court granted Turner's motion to intervene pursuant to rule 24.02 of the Tennessee Rules of Civil Procedure, governing permissive intervention, which provides that, [u]pon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising discretion the court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Tenn.R.Civ.P. 24.02. Under rule 24.02, the trial court may permit an applicant to intervene if the court determines that the applicant's claims and the underlying action have a common question of law or fact. Ballard v. Herzke, 924 S.W.2d 652, 658 (Tenn.1996); Tenn.R.Civ.P. 24.02. A question of law is "[a]n issue which involves the application or interpretation of a law." Black's Law Dictionary 1122 (5th ed. 1979). A question of fact is "[a]n issue involving the resolution of a factual dispute." Id. As indicated by the language of rule 24.02, the decision to allow a permissive intervention is a matter entrusted to the trial court's discretion. Ballard, 924 S.W.2d at 658. Absent a showing that the trial court abused its discretion, this court will not reverse the trial court's decision. Id.; accord Shelby County Deputy Sheriff's Ass'n *862 v. Gilless, 972 S.W.2d 683, 685 (Tenn.Ct.App.1997). As an initial matter, we are not convinced that Turner's motion to intervene even met the requirements for a permissive intervention because the motion failed to establish the existence of any questions of law or fact common to both Turner's claims and the underlying action. As we previously indicated, Turner's claims for declaratory and injunctive relief were premised on his argument that the $1 million promissory note signed by him in connection with his purchase of Rodell's interest in MCS lacked consideration because Turner did not receive any personal benefit in exchange for executing the note. Thus, Turner's claims presented the narrow question of whether the promissory note was unenforceable due to a lack of consideration. On the other hand, MCS's claims against the Defendants in the underlying action were premised on MCS's assertions that, both prior and subsequent to Rodell's sale of his interest in MCS to Turner, Rodell and the other Defendants conspired to misappropriate MCS's confidential and/or proprietary information, to engage in unfair trade practices, and to destroy MCS's business by inducing the breach of existing contracts and business relationships between MCS and its key employees, customers, carriers, and vendors. A review of the complaints' allegations, therefore, fails to confirm that the intervening claims and the underlying action share any common questions of law or fact. In support of his motion to intervene, Turner asserted that he executed the promissory note in connection with the transaction whereby Rodell sold his interest in MCS to Turner and that this transaction also was "the genesis of the present litigation." We recognize that the same transaction forms part of the factual background for both Turner's claims and the underlying action. If Rodell had not sold his interest in MCS to Turner, Rodell likely would not have established a new corporation that directly competed with MCS for its employees and customers. Nevertheless, the common fact of this transaction does not support intervention. For purposes of MCS's action against the Defendants, the transaction whereby Rodell sold his interest in MCS to Turner is not in dispute. What is in dispute is the conduct of Rodell and the other Defendants just prior and subsequent to the transaction. The transaction itself does not present any legal or factual question that needs to be resolved in the underlying action. In light of the tenuous relationship between Turner's claims and the underlying action, therefore, the trial court would have been justified in denying Turner's motion to intervene. Inasmuch as the trial court had the discretion to deny Turner's motion to intervene altogether, we conclude that the trial court did not abuse its discretion in permitting Turner to intervene but, at the same time, imposing a condition on Turner's intervention. Although this issue apparently has not been addressed by the appellate courts of this state, our conclusion is supported by authorities interpreting the comparable federal rule on permissive intervention. See Fed.R.Civ.P. 24(b).[9]*863 In Beauregard, Inc. v. Sword Services LLC, 107 F.3d 351 (5th Cir.1997), for example, the court noted that [i]t is undisputed that virtually any condition may be attached to a grant of permissive intervention. See, e.g., United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir.1990)[, cert. denied, 498 U.S. 1073, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991)]; Fox v. Glickman Corp., 355 F.2d 161, 164 (2d Cir.1965)[, cert. denied, 384 U.S. 960, 86 S.Ct. 1585, 16 L.Ed.2d 672 (1966)]; 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 2d, § 1913, § 1922 (1986) ("Since the court has discretion to refuse intervention altogether, it also may specify the conditions on which it will allow the applicant to become a party."). Beauregard, 107 F.3d at 352 n. 2. Similarly, in Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987), Justice Brennan, in a concurring opinion, noted that [e]ven highly restrictive conditions may be appropriately placed on a permissive intervenor, because such a party has by definition neither a statutory right to intervene nor any interest at stake that the other parties will not adequately protect or that it could not adequately protect in another proceeding. Stringfellow, 480 U.S. at 382 n. 1, 107 S.Ct. 1177 (Brennan, J., concurring) (citing Fed.R.Civ.P. 24(b)); accord Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450, 469 (4th Cir.1992) ("When granting an application for permissive intervention, a federal district court is able to impose almost any condition."), cert. denied, 507 U.S. 1000, 113 S.Ct. 1625, 123 L.Ed.2d 183 (1993); In re Discovery Zone Sec. Litig., 181 F.R.D. 582, 601 (N.D.Ill.1998) ("It is axiomatic that courts may put limitations on a party's ability to intervene permissively under Rule 24(b)(2)."); Lelsz v. Kavanagh, 783 F.Supp. 286, 292 (N.D.Tex.1991) ("[A]n application for permissive intervention, unlike intervention as of right, is addressed to the discretion of the court, and the court, accordingly, may impose various conditions or restrictions on the scope of intervention."), aff'd, 983 F.2d 1061 (5th Cir.), cert. denied, 510 U.S. 906, 114 S.Ct. 287, 126 L.Ed.2d 236 (1993); see also Meyer v. Meyer, 842 S.W.2d 184, 188 (Mo.Ct.App.1992) ("A court may impose conditions on its grant of permissive intervention."). In the present action, the trial court entered orders permitting Turner to intervene, but the court conditioned Turner's intervention upon his posting a $1.6 million bond. Inasmuch as Turner failed to meet the condition for his intervention, we hold that the trial court did not abuse its discretion in dismissing his complaint against Rodell. In reaching this conclusion, we stress that, although the trial court conditioned Turner's intervention on posting the $1.6 million bond, the court's action did not prevent Turner from pursuing his claims on the promissory note against Rodell. Turner could have filed a separate lawsuit challenging the enforceability of the promissory note. The trial court's ruling merely limited Turner's right to pursue such claims in the present action. Turner also contends that the trial court erred in dismissing his intervening complaint based upon the court's finding that Turner was in contempt of court for failing to comply with the court's orders allowing intervention. Describing the trial court's dismissal of his complaint as a "punitive *864 and unconditional" sanction, Turner first characterizes the proceeding which led to the dismissal of his intervening complaint as a criminal contempt action. Based upon this characterization, Turner then contends that the trial court's order of dismissal should be reversed because the trial court denied Turner the constitutional and procedural protections to which he was entitled in a criminal contempt action. Specifically, Turner contends that he was not given notice that he was being charged with criminal contempt as required by Tennessee Rule of Criminal Procedure 42(b). Turner further contends that the trial court erred in finding him in contempt because he attempted in good faith to comply with the order to post the bond and, thus, his failure to comply with the order was not willful. We believe that these arguments improperly characterize the proceeding that led to the dismissal of Turner's intervening complaint as a criminal contempt action. The trial court dismissed Turner's complaint pursuant to rule 41.02 of the Tennessee Rules of Civil Procedure, which authorizes the court to dismiss a plaintiff's claim if he fails to prosecute the claim, to comply with the Rules of Civil Procedure, or to comply with any order of the court. Thompson v. Dickerson, No. 02A01-9702-CV-00034, 1997 WL 437228, at *2 (Tenn.Ct.App. Aug.1, 1997) (no perm. app. filed); Kotil v. Hydra-Sports, Inc., No. 01A01-9305-CV-00200, 1994 WL 535542, at *3 (Tenn.Ct.App. Oct.5, 1994) (no perm. app. filed); Mills v. Bank of Roane County, 1991 WL 126553, at *2 (Tenn.Ct.App. July 15, 1991) (no perm. app. filed); Tenn.R.Civ.P. 41.02(1). Dismissal is a harsh sanction that generally is not favored in circumstances where lesser sanctions are available, and this court does not treat decisions to dismiss cases pursuant to rule 41.02 lightly. Kotil, 1994 WL 535542, at *3. In reviewing such decisions, however, we recognize "that trial judges must be able to control their dockets and that to do so, they must have available the most severe spectrum of sanctions not merely to penalize those whose conduct warrants sanctions but also to deter others who might be tempted to engage in similar conduct if the sanction did not exist." Id. Accordingly, our review of such decisions is governed by an abuse of discretion standard. Id., at *4. Although we recognize that the sanction of dismissal is "harsh," we have found no authority for the proposition that a dismissal proceeding under rule 41.02 constitutes a criminal contempt proceeding or, for that matter, that the sanction of dismissal constitutes a criminal contempt penalty. In light of Turner's failure to direct us to any such authority, we reject his attempt to characterize the dismissal proceeding as a criminal contempt proceeding. Moreover, we note that Rodell's Petition for Scire Facias and Citation for Contempt specifically informed Turner that Rodell was seeking sanctions based upon Turner's failure to post the bond and that one of the sanctions sought was dismissal pursuant to rule 41.02. As for Turner's argument that his failure to comply with the trial court's order was not willful,[10] our review of this issue is *865 hampered because the record on appeal does not contain a complete transcript of the evidence presented at the hearing on Rodell's motion. The record contains a partial transcript of the October 2, 1998, hearing, but the transcript is marked "Excerpt only," and it appears to contain only the ruling announced by the trial court at the hearing's conclusion. The only evidence cited by Turner in support of this issue is an affidavit that was filed several days after the hearing.[11] The appellant bears the burden of showing that the evidence presented below preponderates against the trial court's judgment. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.Ct.App.1992). To this end, the Tennessee Rules of Appellate Procedure require the appellant to prepare "a transcript of such part of the evidence or proceedings as is necessary to convey a fair, accurate and complete account of what transpired with respect to those issues that are the bases of appeal." Tenn.R.App.P. 24(b); see also Johnson v. Hardin, 926 S.W.2d 236, 239 (Tenn.1996); Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn.Ct.App.1997). In the absence of a transcript or statement of the evidence, a presumption arises that the parties presented sufficient evidence to support the trial court's judgment, and this court will affirm the judgment. Coakley, 840 S.W.2d at 370; Irvin v. City of Clarksville, 767 S.W.2d 649, 653 (Tenn.Ct.App.1988). Inasmuch as the record in this case fails to include a complete transcript of the hearing on Rodell's motion, we are unable to determine whether, based upon the evidence before it, the trial court erred in finding that Turner was in "willful contempt" due to his "failure to comply with the [court's] orders." Under these circumstances, Turner has failed to meet his burden of showing that the evidence preponderates against the trial court's judgment, and this issue does not provide a basis for this court to reverse the judgment on appeal. In any event, we conclude that the trial court was authorized to dismiss Turner's intervening complaint regardless of whether the evidence supported a dismissal under rule 41.02. As we previously held, the trial court acted within its discretion when it conditioned Turner's right to intervene in this action upon his posting a bond. When Turner failed to meet this condition, the trial court properly denied Turner's request to intervene by dismissing his complaint. We conclude, on the other hand, that the trial court's dismissal of MCS's claims in the underlying action must be reversed. Although rule 41.02 expressly authorizes a trial court to dismiss a party's claim if the party asserting the claim fails to comply with an order of the court, we have found no support within the language of rule 41.02 for dismissing one party's claim based upon a different party's violation of a court order. Tenn.R.Civ.P. 41.02(1). In this case, MCS did not violate the court's orders allowing intervention because the orders did not require MCS to perform any specific act or, conversely, to *866 refrain from performing any act. As a condition of allowing Turner to intervene in the underlying action, the orders required only Turner, and not MCS, to post a $1.6 million bond. By failing to post the required bond, Turner risked, and ultimately suffered, the dismissal of his intervening complaint. The record contains no support, however, for imposing this sanction against MCS. In urging this court to affirm the trial court's order of dismissal against MCS, the Defendants cite Quality First Staffing Services v. Chase-Cavett Services, Inc., No. 02A01-9807-CH-00205, 1999 WL 281312 (Tenn.Ct.App. May 7, 1999) (no perm. app. filed). In that case, the trial court ruled that the appellants, both of whom were officers of a corporate defendant, were in contempt of court for failing to deposit money into the court registry as directed by previous court orders. Quality First, 1999 WL 281312, at *2. Although the corporate officers were not parties to the action, we affirmed the trial court's judgment of contempt against them, reasoning that "a corporation can comply with such an order only by acting through its agents." Id., at *4. We conclude that the Quality First decision is inapposite to the present case. In Quality First, we upheld the trial court's judgment of contempt against the corporate officers, in part, because we reasoned that the only way the corporate defendant could have complied with the court's previous orders was through its agents, the corporate officers. We also observed that at least one of the orders specifically directed the two corporate officers to deposit the funds into the court registry on behalf of the corporation. Quality First, 1999 WL 281312, at *2, *4. This reasoning does not apply in the present case. Unlike a corporation, which can act only through its officers and agents, Turner is an individual who may act on his own behalf without the assistance of an agent. Moreover, unlike the orders at issue in Quality First, the orders in this case directed only Turner, and not the corporation, to post the $1.6 million bond. We similarly reject the Defendants' suggestion that the order of dismissal against MCS can be upheld by disregarding the corporation's separate identity, a theory also known as "piercing the corporate veil." This theory permits a court to disregard a corporate entity in order to impose liability against a related entity, such as a parent corporation or a controlling shareholder, where the two entities are in fact identical or indistinguishable and where necessary to accomplish justice. Stigall v. Wickes Mach., 801 S.W.2d 507, 510-11 (Tenn.1990); Scandlyn v. McDill Columbus Corp., 895 S.W.2d 342, 346-47 (Tenn.Ct.App.1994). If the court imposes liability against the related entity under this theory, the evidence must show that one entity is the alter ego of the other. Continental Bankers Life Ins. Co. v. Bank of Alamo, 578 S.W.2d 625, 632 n. 1 (Tenn.1979).[12] We conclude that the application of this theory should not have led to the dismissal *867 of MCS's claims. In so holding, we express no opinion on whether a trial court, pursuant to rule 41.02, could dismiss both a corporation's claims and the claims of its controlling shareholder based upon the theory of piercing the corporate veil. In the present case, however, the trial court had before it both the corporation, MCS, and its controlling shareholder, Turner. Unlike the court's orders in Quality First, the orders at issue in this case did not require both the corporation and its officer to perform a specific act. In short, the record contains nothing to suggest, prior to entry of the trial court's order of dismissal, that the court expected MCS to perform the required act of posting the bond if Turner failed to do so. Under these circumstances, we hold that the trial court abused its discretion when it dismissed MCS's claims based upon this theory. III. Order Entering Summary Judgment in Favor of Rodell on Counterclaim Against Turner We also hold that the summary judgment entered in favor of Rodell on his counterclaim against Turner must be reversed. Ordinarily, the dismissal of an original complaint or an intervening complaint under rule 41.02 does not affect a defendant's right to be heard on any properly asserted counterclaims. Quelette v. Whittemore, 627 S.W.2d 681, 682 (Tenn.Ct.App.1981); Brewer v. Williams, 210 Ga. 341, 80 S.E.2d 190, 194 (1954). In such a case, the parties remain before the court, and the defendant may elect to proceed on his counterclaims against the plaintiff. Quelette, 627 S.W.2d at 682; American Actuaries, Inc. v. Mid America Diversified Servs., Inc., 1988 WL 31964, at *2-*3 (Tenn.Ct.App. Apr.7, 1988) (no perm. app. filed). The dismissal of an intervening complaint, however, differs procedurally from the denial of a motion to file an intervening complaint. In the latter case, the movant's request to participate in the litigation is denied, and the movant never becomes a party to the original action. See Graham v. City of Anchorage, 364 P.2d 57, 59 (Alaska 1961); McGough v. Insurance Co. of N. Am., 143 Ariz. 26, 691 P.2d 738, 742 (Ct.App.1984); Wyatt v. R.D. Werner Co., 524 N.W.2d 579, 580 (N.D.1994); see also Ray v. Trapp, 609 S.W.2d 508, 510 (Tenn.1980); Greer v. American Sec. Ins. Co., 223 Tenn. 390, 445 S.W.2d 904, 905 (Tenn.1969); Goodman v. State, 49 Tenn.App. 96, 351 S.W.2d 399, 401 (Tenn.Ct.App.1960). Despite the trial court's citation of rule 41.02, we believe that the court's dismissal of Turner's intervening complaint, in actuality, constituted a denial of Turner's motion to intervene. As we previously indicated, when the trial court granted Turner's motion to intervene, the court did so *868 only upon the condition that Turner post a $1.6 million bond. The effect of this ruling was that, if Turner failed to post the required bond, Turner would not be permitted to intervene in this action. Ultimately, Turner failed to post the bond, and the trial court dismissed his intervening complaint. Given the procedural history of this litigation, we conclude that this dismissal effectively denied Turner's motion to intervene and prevented him from ever becoming a party to this action. Inasmuch as Turner never became a party, he could not assert his claims for declaratory and injunctive relief against Rodell in this action, and, correlatively, Rodell could not assert a counterclaim in this action against someone who was not a party relative to claims that were not at issue. Under these circumstances, the trial court erred in granting Rodell's motion for summary judgment on his counterclaim against Turner. For the foregoing reasons, we reverse the trial court's order of dismissal to the extent that it dismissed MCS's claims against the Defendants, and we reverse the trial court's order granting Rodell's motion for summary judgment against Turner. In all other respects, the trial court's orders are affirmed, and this cause is remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed one-half to Intervening Plaintiff C.O. Turner, III, and one-half to Defendants Rick Rodell, Cornerstone Systems, Inc., Tim Clay, Pat Nieman, Jerry Rice, Ricardo Fernandez, Guy Wallace, Bruce Hallmann, Larry Pritchett, Jack Billingsley, Jim Chaltas, Gregg Mitchell, and Angie Taylor, for which execution may issue if necessary. HIGHERS and LILLARD, JJ., concurs. NOTES [1] As hereinafter explained, we will accept as true the complaint's allegations unless they were specifically refuted by the affidavits submitted in support of the individual Defendants' motions to dismiss for lack of personal jurisdiction. [2] Section 29-9-103 contains the following provisions: (a) The punishment for contempt may be by fine or by imprisonment, or both. (b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fifty dollars ($50.00), and imprisonment not exceeding ten (10) days, and, except as provided in § 29-9-108, all other courts are limited to a fine of ten dollars ($10.00). Tenn.Code Ann. § 29-9-103 (Supp. 1997). [3] Section 29-9-104 contains the following provisions: (a) If the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, he may be imprisoned until he performs it. (b) The person or if same be a corporation, then the said person or corporation can be separately fined, as authorized by law, for each day it is in contempt until it performs the act ordered by the court. Tenn.Code Ann. § 29-9-104 (1980). [4] As pertinent, rule 41.02 provides that (1) For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. . . . . (3) Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule 41, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits. Tenn.R.Civ.P. 41.02. [5] When a motion to dismiss for lack of personal jurisdiction is decided upon the parties' pleadings and affidavits, as opposed to an evidentiary hearing, the procedure in many respects is similar to a summary judgment procedure. See Byrd v. Hall, 847 S.W.2d 208, 214-15 (Tenn.1993) (holding that nonmoving party faced with properly supported motion for summary judgment may not rely upon allegations of his pleadings and, further, that trial judge ruling on motion for summary judgment must view evidence in favor of nonmoving party); see also Radaszewski v. Telecom Corp., 981 F.2d 305, 310 (8th Cir.1992) (noting similarities between analytical processes applied to motions to dismiss for lack of personal jurisdiction and motions for summary judgment), cert. denied, 508 U.S. 908, 113 S.Ct. 2338, 124 L.Ed.2d 248 (1993). Our supreme court has stressed, however, that the two procedures should not be confused because, whereas a motion to dismiss for lack of jurisdiction is a motion in abatement, a motion for summary judgment is a motion in bar that goes to the merits of the action. Nicholstone Book Bindery, Inc. v. Chelsea House Publishers, 621 S.W.2d 560, 561 n. 1 (Tenn.1981), cert. denied, 455 U.S. 994, 102 S. Ct. 1623, 71 L.Ed.2d 856 (1982); see also Goff v. Hackett Stone Co., No. 98-7137, 1999 WL 397409, at *2 (10th Cir.1999) (indicating that, whereas dismissal for lack of personal jurisdiction should be without prejudice, dismissal by summary judgment is with prejudice and may preclude subsequent action in another forum). [6] Application for permission to appeal was granted by the supreme court. In an opinion affirming this court, filed January 12, 2001, the supreme court held "that the conspiracy theory of personal jurisdiction, premised on the basic priniciple of conspiracy liability, fits within the Tennessee long-arm statute and comports with due process." Chenault v. Walker, 36 S.W.3d 45 (Tenn. 2001). [7] In attempting to formulate a workable standard of the conspiracy theory of jurisdiction, the Delaware court held that a conspirator who is absent from the forum state is subject to the jurisdiction of the court, assuming he is properly served under state law, if the plaintiff can make a factual showing that: (1) a conspiracy to [commit a tort] existed; (2) the defendant was a member of that conspiracy; (3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state; (4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and (5) the act in, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy. Istituto Bancario Italiano, 449 A.2d at 225. [8] The law is well-settled that a trial court may not exercise personal jurisdiction over a nonresident defendant merely because the defendant is employed by a company domiciled in the forum state. Century Wrecker Corp. v. Hutchings, 1990 WL 131423, at *2 (Tenn.Ct.App. Sept.14, 1990) ( no perm. app. filed) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Nevertheless, courts have recognized that such employment creates a significant contact which, when added to other contacts with the forum state, may support the exercise of personal jurisdiction over the nonresident defendant. See Equifax Servs., Inc. v. Hitz, 905 F.2d 1355, 1358-59 (10th Cir.1990); Shipley Co. v. Clark, 728 F.Supp. 818, 822-23 (D.Mass.1990); see also ALTA Analytics, Inc. v. Muuss, 75 F.Supp.2d 773, 779 (S.D.Ohio 1999). [9] The pertinent provisions of federal rule 24(b) are virtually identical to those of Tennessee rule 24.02. Rule 24(b) provides that [u]pon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Fed.R.Civ.P. 24(b). [10] Although the language of rule 41.02 does not explicitly require that the plaintiff's failure to comply be willful, we note that appellate courts interpreting the comparable federal rule have held that a dismissal under rule 41(b) for failure to comply with a court order is appropriate only when there is a clear record of delay or contumacious conduct by the plaintiff or when less drastic sanctions have proven ineffective. Guyer v. Beard, 907 F.2d 1424, 1429 (3d Cir.1990); Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1177 (7th Cir.1987); Judkins v. Beech Aircraft Corp., 723 F.2d 818, 819-20 (11th Cir.1984); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 546 (5th Cir.1978). Like Tennessee rule 41.02, federal rule 41(b) authorizes the court to dismiss a claim "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court." Fed.R.Civ.P. 41(b). [11] The affidavit was signed by an account executive employed by Fidelity and Deposit Company of Maryland, who stated that the company had been unable to write a bond as required by the court's orders because the company's underwriters could not determine the scope of the bond. [12] Traditionally, courts have used this theory to impose liability against a controlling shareholder who has used the corporate entity to avoid his legal obligations. Clark v. United Techs. Automotive, Inc., 459 Mich. 681, 594 N.W.2d 447, 449 n. 3 (1999). In recent years, however, a "reverse piercing" theory has gained recognition whereby courts may impose liability against a corporation for the debts of its controlling shareholder. See, e.g., In re Blatstein, 192 F.3d 88, 100 (3d Cir.1999); Scholes v. Lehmann, 56 F.3d 750, 758 (7th Cir.), cert. denied, 516 U.S. 1028, 116 S.Ct. 673, 133 L.Ed.2d 522 (1995); Century Hotels v. United States, 952 F.2d 107, 110 n. 6 (5th Cir.1992); Zahra Spiritual Trust v. United States, 910 F.2d 240, 243-44 (5th Cir.1990); Thomsen Family Trust, 1990 v. Peterson Family Enters., Inc., 66 Ark.App. 294, 989 S.W.2d 934, 937 (1999); State v. Easton, 169 Misc.2d 282, 647 N.Y.S.2d 904, 908-09 (N.Y.Sup.Ct.1995). See generally Gregory S. Crespi, The Reverse Pierce Doctrine: Applying Appropriate Standards, 16 J. Corp. L. 33, 55-69 (1990). As one court explained, whereas piercing analysis typically "is used to hold individuals liable for the actions of a corporation they control," reverse piercing "seeks to hold a corporation accountable for actions of its shareholders." American Fuel Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d Cir.1997). Despite this distinction, both theories rely on the premise that one entity is the alter ego of the other. Scholes, 56 F.3d at 758; Century Hotels, 952 F.2d at 110 n. 6; Zahra Spiritual Trust, 910 F.2d at 243-44. Although some courts apparently have embraced the "reverse piercing" doctrine, others have expressed concerns about adopting this theory, describing it as "potentially problematic" or "controversial." Floyd v. IRS, 151 F.3d 1295, 1300 (10th Cir.1998); Nursing Home Consultants, Inc. v. Quantum Health Servs., Inc., 926 F.Supp. 835, 840 n. 12 (E.D.Ark. 1996), aff'd, 112 F.3d 513 (8th Cir.1997); Estate of Daily v. Title Guar. Escrow Serv., Inc., 178 B.R. 837, 844 (D.Haw.1995), aff'd, 81 F.3d 167 (9th Cir.1996).

929 F.2d 576 Cynthia RIPPSTEIN, James H. Weaver, Brenda Weaver, and JaimeWeaver, Plaintiffs-Appellants,v.The CITY OF PROVO, a Municipal Corporation, Provo PoliceDepartment, and Phillip A. Webber, Defendants-Appellees,andJaime R. Meissner, Defendant. No. 90-4083. United States Court of Appeals,Tenth Circuit. April 3, 1991. Richard L. Hill of Olsen, Hintze, Nielson & Hill, Provo, Utah, for plaintiffs-appellants. Gary L. Gregerson, David C. Dixon, and Vernon F. (Rick) Romney, Provo City Attorneys' Office, Provo, Utah, for defendants-appellees. Before McKAY, SEYMOUR, and EBEL, Circuit Judges. McKAY, Circuit Judge. 1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument. 2 The appellants filed a wrongful death action against the City of Provo, the Provo Police Department, and Officer Phillip A. Webber. The appellants were required by Utah law to file an undertaking in order to proceed against any of the three defendants. The undertaking requirement applicable to an action against Officer Webber is contained in Utah Code Ann. Sec. 78-11-10 (1987), which states in pertinent part, 3 Before any action may be filed against any sheriff, constable, peace officer, state road officer, or any other person charged with the duty of enforcement of the criminal laws of this state, ... the proposed plaintiff, as a condition precedent thereto, shall prepare and file with, and at the time of filing the complaint in any such action, a written undertaking with at least two sufficient sureties in an amount to be fixed by the court.... 4 (emphasis added). The action against the City of Provo and the Provo Police Department is governed by the Governmental Immunity Act, Utah Code Ann. Secs. 63-30-1 to -18 (1989), which also contains an undertaking requirement: 5 At the time of filing the action the plaintiff shall file an undertaking in a sum fixed by the court, but in no case less than the sum of $300.... 6 Utah Code Ann. Sec. 63-30-19 (1989) (emphasis added). 7 The appellants failed to file the required undertaking at the time of filing the complaint. Based on that failure, the appellees filed a motion to dismiss, and the district court referred the matter to a magistrate. The magistrate recommended that the appellants be given ten days within which to file the undertaking. The appellants filed the undertaking within the ten-day period. However, the district court rejected the magistrate's recommendation and determined that, under Utah law, the undertaking statutes are to be strictly construed. The court, therefore, dismissed the action against the City of Provo, the Provo Police Department, and Officer Webber; and this appeal followed. 8 The provision governing the action against Officer Webber, section 78-11-10, has been interpreted strictly by the Utah Supreme Court in Kiesel v. District Court of Sixth Judicial District, 96 Utah 156, 84 P.2d 782 (1938). Kiesel states unequivocally: 9 [W]e hold in this case that the legislature meant what it said and there was no discretion in the court to permit filing of the undertaking after the motion to dismiss the complaint. The undertaking must be filed, or handed to the clerk for filing, before the complaint is filed. 10 .... 11 ... [W]e think the legislature intended to make the requirement so positive and unequivocal as to require the court to dismiss the suit if the bond was not filed at least contemporaneously with the complaint if motion to dismiss was timely made. 12 Id. 84 P.2d at 784 (emphasis in original).* The Utah court further held that failure to dismiss upon a proper motion was reversible error. Id. 84 P.2d at 785. In more recent cases, section 78-11-10 has been upheld as constitutional. See Snyder v. Cook, 688 P.2d 496 (Utah 1984); Zamora v. Draper, 635 P.2d 78 (Utah 1981). Thus it is clear that dismissal was proper as to Officer Webber. 13 The appellants argue that, because the language of section 63-30-19 differs from section 78-11-19, Kiesel does not apply to their action against Provo City and the Provo Police Department. They further argue that they should be allowed to cure their error by filing an undertaking at some time after the filing of the complaint. 14 We find the appellants' argument unpersuasive. Sections 63-30-19 and 78-11-19 are parallel provisions applying to different potential defendants. It is likely that frequently, as here, parties covered under the two sections will be defendants in the same lawsuit. Therefore, it is logical to assume that the Utah courts would construe the two provisions similarly. 15 The Utah Supreme Court has not decided this precise issue, but the reasoning of Kiesel supports our conclusion. The court in Kiesel noted that section 78-11-10 is somewhat ambiguous as to the exact time when the undertaking must be filed: 16 Here the wording is to the effect that the undertaking must be filed "before any such action is filed, and as a condition precedent thereto" which is immediately qualified by what follows in that the undertaking need be filed only contemporaneously with the filing of the complaint--the language continuing, "the proposed plaintiff shall prepare and file with, and at the time of filing, the complaint in any such action, a written undertaking." 17 84 P.2d at 783 (emphasis in original). The court concluded that this required filing of the bond "at least contemporaneously with the complaint." Id. 84 P.2d at 784 (emphasis added). While section 63-30-19 does not contain the words that created the ambiguity in section 78-11-10--"before any such action is filed" or "as a condition precedent to"--it still contains the unambiguous language, "at the time of filing the action." We think this language is sufficiently positive to indicate that an undertaking must be filed contemporaneously with the complaint in order to be timely under section 63-30-19. 18 Having decided the issue of timeliness, we turn to the proper remedy for failure to timely file the undertaking. A recent Utah case, Hansen v. Salt Lake County, 794 P.2d 838, 840 (Utah 1990), states that the appropriate remedy for failure to make a timely filing of an undertaking under section 63-30-19 is dismissal without prejudice. 19 Finally, this case is unusual because the appellants previously filed the same suit in state court, failed to timely file an undertaking in the state court, and had the precise question which we address here decided against them by the state trial judge. While we are not bound by the state trial court's opinion, at the very least it provides evidence of what the state courts would do in this circumstance. See Rippstein v. City of Provo, No. CV 88 1459 (Utah Dist.Ct. Nov. 2, 1988); Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 397 (5th Cir.), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986) (when predicting state law, in absence of specific guidance from highest state court, federal court looks, inter alia, to lower state court decisions). Therefore, we hold that the district court properly dismissed the action against defendants City of Provo and Provo Police Department. 20 The order of the district court is AFFIRMED. * The pertinent language reviewed in Kiesel remains virtually identical in today's version of section 78-11-10

969 F.2d 1045 Leachv.Collins* NO. 91-2758 United States Court of Appeals,Fifth Circuit. July 23, 1992 1 Appeal From: S.D.Tex. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2

801 P.2d 1192 (1990) The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Eugene ROMERO, Defendant-Appellee. No. 89SA505. Supreme Court of Colorado, En Banc. December 10, 1990. Norman S. Early, Jr., Dist. Atty., Second Judicial Dist., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Robert J. Whitley, Martin Egelhoff, Deputy Dist. Attys., Denver, for plaintiff-appellant. Michael J. Gallagher, Davis, Graham & Stubbs, Denver, for defendant-appellee. *1193 Justice MULLARKEY delivered the Opinion of the Court. Defendant Eugene Romero was tried and convicted by a jury of felony theft and second-degree burglary. Romero also was found to be an habitual criminal and received a life sentence. The court of appeals affirmed Romero's conviction, People v. Romero, 767 P.2d 782 (Colo.Ct.App. 1988), and we denied certiorari. Romero then filed a motion for postconviction review pursuant to Crim.P. 35(c) to vacate his judgment of conviction. In response, the district attorney moved to dismiss Romero's rule 35(c) motion, contending that the attacks raised by the motion were barred by section 16-5-402(3), 8A C.R.S. (1986), which states: If the judgment of conviction to which any collateral attack is directed was sustained upon review by a court of appellate jurisdiction in the state where the judgment was entered, no collateral attack on such judgment shall be permitted whether commenced within or outside the time limitations set forth in subsection (1) of this section, unless said collateral attack is based upon an opinion of the court of last resort subsequently announced in the state where the judgment was entered, which opinion is given retroactive effect in a manner invalidating the conviction. The trial court ruled that section 16-5-402(3) was unconstitutional and ordered a hearing on Romero's rule 35(c) motion. Prior to that hearing, the People instituted this appeal challenging the trial court's ruling that section 16-5-402(3) was unconstitutional. We dismiss the appeal for lack of appellate jurisdiction. Section 16-12-102, 8A C.R.S. (1986 and 1990 Supp.), governs appeals by the prosecution in criminal cases. Section 16-12-102(1) states, "If any act of the general assembly is adjudged inoperative or unconstitutional in any criminal case, it is the duty of the district attorney of the judicial district in which the court making such decision is situated to appeal on behalf of the people of the state of Colorado...." § 16-12-102(1), 8A C.R.S. (1986). Under section 16-12-102(1), the "procedure to be followed in filing and prosecuting appeals under this section shall be as provided by applicable rule of the supreme court of Colorado." C.A.R. 1 permits appeals only from "final judgments" of a district court.[1] The People do not contend, however, that the district court's order finding section 16-5-402(3) to be unconstitutional is a "final judgment" under C.A.R. 1. The People argue that we have jurisdiction to hear this appeal based on the following language from our decision in People v. Jefferson, 748 P.2d 1223, 1225 (Colo.1988): While the prosecution is given permission to appeal "any decision of the trial court in a criminal case upon any question of law," the district attorney has a duty to appeal where a state statute has been adjudged unconstitutional in a criminal case. § 16-12-102(1). The obligation imposed on the People to appeal a declaration of unconstitutionality underscores the legislature's intent that its acts not be declared unconstitutional in the absence of meaningful and immediate appellate review. Declarations of unconstitutionality under section 16-12-102(1), as with suppression orders under section 16-12-102(2), are specially appealable by statute, even though neither category could technically be considered a final judgment. Based on this language, the People contend that section 16-12-102(1) permits interlocutory appeals in all cases where a trial court declares a statute unconstitutional. Although when considered in isolation this language arguably supports the People's position, we disagree that Jefferson grants to the People the right to an interlocutory appeal in this case. In Jefferson, the trial court dismissed two charges of a multi-count information on the grounds that the statute under which the defendant *1194 was charged was unconstitutional. Jefferson, 748 P.2d at 1224. We held that we had appellate jurisdiction to consider the People's appeal of the declaration of unconstitutionality of the underlying statute. Id. at 1225. In support of our decision that we had appellate jurisdiction in Jefferson, we analogized the dismissal of the charges to a final judgment. Id. We distinguished the trial court's finding of unconstitutionality and dismissal of the charges in Jefferson from an interlocutory situation that "represent[ed] one or more steps toward the resolution of a given charge against a particular defendant." Id. In arguing that Jefferson confers appellate jurisdiction upon us to hear this case, the People fail to recognize that the situation in this case is, in effect, the reverse of the situation in Jefferson. As a result of the trial court's ruling in Jefferson that the statute was unconstitutional, the charge that was based on the statute was dismissed. Id. at 1224. In this case there is no dismissal. As a result of the trial court's ruling that section 16-5-402(3) is unconstitutional, the case proceeds to a hearing on Romero's rule 35(c) motion. The ruling in this case that section 16-5-402(3) is unconstitutional, therefore, is not analogous to a final judgment. The district court's finding of unconstitutionality instead represents one step toward the resolution of Romero's Crim.P. 35(c) motion. Moreover, in contrast to Jefferson, the People do not require immediate appellate review in this case. In cases such as Jefferson where parts of a multi-count information are dismissed, the People lose the opportunity to prosecute on the charges dismissed by the trial court unless immediate appellate review is available. The cases cited in support of the Jefferson holding also required immediate appellate review. Those cases involved situations where either we reviewed dismissals of parts of a multi-count information, People v. Pedrie, 727 P.2d 859 (Colo.1986); People v. Williams, 628 P.2d 1011 (Colo.1981), or we reviewed a trial court's finding that the statute upon which charges were based was unconstitutional. People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985); People v. Moyer, 670 P.2d 785 (Colo.1983).[2]See also People v. Traubert, 199 Colo. 322, 330, 608 P.2d 342, 348 (1980) ("Since the prosecution is precluded from placing a defendant in double jeopardy after a verdict has been rendered, its only meaningful avenue of appeal must be found in a pre-judgment proceeding."). In this case, on the other hand, immediate appellate review is not necessary. If the trial court grants Romero's rule 35(c) motion, the People may appeal and challenge the merits of the court's decision as well as the court's prehearing ruling on the statute's constitutionality. Crim.P. 35(c)(3) (providing that "[t]he order of the trial court granting or denying the [35(c)] motion is a final order reviewable on appeal"). In addition, regardless of the trial court's decision on Romero's rule 35(c) motion, the People may seek review of the trial court's ruling on the unconstitutionality of section 16-5-402(3) at the conclusion of the case. The People do not lose their right to appeal the finding of unconstitutionality merely because the People do not seek or obtain appellate review immediately upon the trial court's ruling. Thus, we see no need for immediate appellate review. Finally, denying appellate review in this case is consistent with the law and policy concerning interlocutory appeals by the prosecution in criminal cases. Because the prosecution in criminal cases generally is denied later appellate review, the prosecution is afforded more opportunity than is the defendant to appeal adverse interlocutory rulings. People v. Traubert, 199 Colo. at 330, 608 P.2d at 347-48; § 16-12-102(2), 8A C.R.S. (1986 and 1990 Supp.); see also 2 LaFave and Israel, Criminal Procedure §§ 26.2, 26.3 (1984) and cases cited there. *1195 This relatively greater ability of the prosecution to bring interlocutory appeals, however, is severely limited out of concern that the prosecution may "wear down" the defendant by taking an interlocutory appeal and because of the defendant's interest in the swift resolution of the case. See § 16-12-102(2); 2 LaFave and Israel, Criminal Procedure §§ 26.2, 26.3. In this case, not only is there no necessity for immediate appellate review, but the concern that the prosecution may "wear down" the defendant remains and the defendant clearly is interested in the swift resolution of his case.[3] Accordingly, we decline to extend the holding of Jefferson and we dismiss this case for lack of appellate jurisdiction. The parties may proceed to a hearing on Romero's Crim.P. 35(c) motion. NOTES [1] Section 16-12-102(2), on the other hand, provides for interlocutory appeals by the prosecution of trial court rulings granting a defendant's motion made in advance of trial or a motion in limine "for the return of property and to suppress evidence or granting a motion to suppress an extrajudicial confession or admission." § 16-12-102(2), 8A C.R.S. (1990 Supp.). [2] In People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985), and People v. Moyer, 670 P.2d 785 (Colo.1983), the charges had not been dismissed against the defendants when the cases were appealed to this court. The trial court had ruled that the statute upon which the charges were based was unconstitutional, however, and the dismissals were merely stayed pending appeal to this court. [3] In fact, interlocutory appeals by the prosecution in the postconviction setting often will prejudice the defendant more than interlocutory appeals by the prosecution in a pre-trial setting. Typically a defendant pursuing a rule 35(c) motion is attacking the conviction for which the defendant is serving his prison sentence. The defendant remains in prison through the resolution of his rule 35(c) motion. The quicker he receives review of his rule 35(c) motion, the quicker he may be able to reverse his conviction and be released from prison. A defendant subjected to the prosecution's interlocutory appeals in a pre-trial setting, on the other hand, may have been released on bail and will not have to endure a longer time in prison as a result of the delay caused by the prosecution's interlocutory appeals. Cf. 2 LaFave and Israel, Criminal Procedure § 26.3 (pointing out that the defendant in a pre-trial setting will not necessarily be free on bail while the appeal is pending and that as a result, several jurisdictions require that the defendant be released pending disposition of the appeal unless there are "compelling reasons for continuous detention.") (citations omitted).

Filed 10/21/13 P. v. Stewart CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A136221 v. (Solano County DEANTE STEWART, Super. Ct. No. FCR291353 & FCR290834) Defendant and Appellant. Defendant Deante Stewart appeals after conviction of two counts of second degree robbery, one count of assault with a firearm, and one count of possession of a firearm by a convicted felon. (Pen. Code, §§ 211, 245, subd. (a)(2), 29800, subd. (a)(1).)1 Defendant personally used a firearm in each of the first three counts and had one prior strike conviction and one violent prison prior. (§§ 667, subd. (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d), 12022.5, subd. (a)(1), 12022.53, subd. (b).) He was sentenced to more than 21 years in prison. He claims his convictions must be reversed because he was denied discovery of a police report relating to a similar crime committed while he was in custody by an individual with a similar appearance, and because the court did not allow him to present a third party culpability defense based on that other crime. We find no error and we affirm. 1 Statutory references without code designation are to the Penal Code. 1  BACKGROUND The prosecution’s case On February 11, 2012, about 7:00 p.m., Arthur Hernandez and his friend Michael Shishido were accosted from behind by an armed man as they were walking through a lawn area on their way to Hernandez‟s apartment in a gated community in Fairfield known as the Parkland apartments. The man demanded money, so Hernandez threw his wallet to the ground near the robber. The wallet held no cash, only expired credit cards and Hernandez‟s driver‟s license and social security card. The robber picked up the wallet, then pointed his gun at Shishido and demanded money from him. The robber hit Shishido on the back of his head with his gun, so Shishido took a $10 bill from his pocket and gave it to the robber. Shishido testified the robber also kicked him in the leg. The robber took off northbound, toward the entry gates to the apartment complex. Hernandez and Shishido continued walking to Hernandez‟s apartment. Hernandez‟s girlfriend had been walking with them just before the robbery but had “slithered away” during the robbery. When Hernandez discovered she was not in the apartment, he went to look for her. As he approached the entry to the apartment complex he saw the robber standing with a woman, talking to someone in a car. He “couldn‟t believe” the man was still in the vicinity. Hernandez returned to his apartment as Shishido was describing the robber to a 911 operator. Shishido described the robber as a 25-year-old African American with dreadlocks and a cap. Hernandez described him as Black, in his 20‟s, with long dreadlocks and a white baseball cap, wearing a gray or silver pullover hooded sweatshirt and jeans. After hearing a description of the robber broadcast, Fairfield Police Officer Joshua Kresha spotted defendant walking on a nearby street with a woman. Defendant was wearing a baseball cap and a gray sweatshirt, and he had long dreadlocks. Kresha pulled his patrol car up behind the two, got out of his car, drew his firearm, and ordered defendant to the ground. The woman walked on and Kresha could not identify her. 2 Kresha searched defendant but found nothing connecting him to the crime: no gun, no wallet, and no $10 bill. After police interviewed Hernandez and Shishido, they took the men to the Foster Lumberyard, about a block away from the Parkland apartments, for a field show up. The show up occurred some five to fifteen minutes after the crime. Both Hernandez and Shishido individually and independently identified defendant as the robber. Hernandez immediately recognized him and testified at trial he had “no doubt” about the identification. Shishido also told the police he was “absolutely” “one hundred percent certain” of the identification and testified at trial he had “no doubt.” Kresha told Fairfield Police Officer Patrick High that defendant was accompanied by an unidentified female at the time of his arrest. After participating in the field show up at the lumberyard, High went to the Travis Lodge in Fairfield (about a block and a half from the Foster Lumberyard) because he had had a previous contact with defendant and a female at that location. He asked the desk clerk if either defendant or his woman friend was registered there. The clerk knew the woman, Dewaynna Gross,2 as a frequent guest at the hotel and told High she had been in the hotel in the vending machine area before the police arrived. High found Gross sitting in a stairwell of the hotel. He searched her with her consent but found neither the fruits of the robberies nor a gun. However, when High checked the area near the vending machines he found a loaded gun under the ice machine. The hotel clerk had not seen Gross hide a gun under the ice machine, but he had not been watching her the entire time she was in that area. The police also searched along the path Gross presumably would have traveled to the hotel from the area where 2 Defendant and Gross were jointly charged with a robbery on January 1, 2012, in case no. FCR291353, and were jointly charged in the current offense in FCR290834. The charges against Gross were resolved prior to trial. All charges from both dates were charged against defendant in a consolidated information in no. FCR291353. The charges stemming from the January 1 events were dismissed by the prosecutor at the start of trial because the victim could not be served. 3 defendant was arrested, but they never found Hernandez‟s wallet or the $10 bill Shishido had given the robber. The gun found under the ice machine was a .380-caliber, semiautomatic, with a predominantly black finish. No usable fingerprints were found on the weapon. It was registered to a San Leandro man who had no connection to defendant or anyone else involved in the case. He believed the gun had been stolen by a house guest in September 2011, but there was no evidence to implicate defendant or Gross in the theft. Hernandez and Shishido both testified at trial that the gun found under the ice machine could have been the one used in the robbery, but neither man was sure. Neither was familiar with firearms. Shishido thought the gun he saw during the robbery was silver or shiny and appeared bigger when the robber had it. Hernandez testified it was black, and he thought it was a revolver. Hernandez had previously told police the gun the robber used was a semiautomatic. On March 30, 2012, a correctional officer at the Solano County Jail attempted to conduct a live lineup with defendant at the request of defendant‟s attorney. Hernandez and Shishido showed up to view the lineup, but defendant refused to participate, saying, “Are you guys deaf? I‟m not going in. Didn‟t you hear me?” Consequently, no lineup was conducted. The parties stipulated at trial that defendant had previously been convicted of a felony for purposes of the felon in possession count. The defense case Defendant did not testify. On cross-examination, Shishido admitted he had tested positive for methamphetamine a month before the robbery, when he was on probation. Defense counsel asked several questions obviously intended to elicit that Shishido had bought methamphetamine from defendant in the days preceding the alleged robbery. Shishido denied all such accusations, however, and denied that the robbery incident was related to a methamphetamine transaction. Counsel also called one of the officers who had interviewed the victims at the crime scene, eliciting that Hernandez had not provided as much detail during preliminary 4 interviews as he had testified to at trial. Hernandez was unable to describe the robber‟s facial features immediately after the offense. Defense counsel argued in closing that Shishido had been trying to purchase methamphetamine from defendant on the evening of the alleged robberies and was not satisfied with the amount he received. Inferably, Shishido and Hernandez therefore sought revenge by falsely accusing defendant of robbery and assault. The judgment Defendant was convicted by jury verdict on all counts on June 4, 2012. The prior conviction allegations were bifurcated and tried to the court, which found the allegations true. On July 27, 2012, defendant was sentenced to 21 years, four months, in prison based in large part on his prior record, multiple offenses, and use of a firearm. DISCUSSION Before trial, defense counsel moved for permission to put on a defense of third party culpability with respect to two incidents she wanted to explore for purposes of presenting evidence of such third party culpability. After being permitted to inspect the police reports, she withdrew her request with respect to one of the incidents. The trial court denied counsel‟s request for a copy of the other report, ruling the crime was not sufficiently similar to make the incident admissible as third party culpability evidence. Defendant argues the court erred. In addition, defendant contends he was entitled to a copy of the police reports under Brady v. Maryland (1963) 373 U.S. 83 (Brady). Background Defense counsel filed a motion to introduce “evidence that a third party, who may currently still be at large, is the perpetrator of the offenses charged in the above entitled cases.” The motion claimed there were two other crimes so similar to the one with which defendant was charged that the jury might reasonably believe the perpetrator of those crimes (committed while defendant was in custody) must also be the one who committed the Hernandez-Shishido robbery. The first incident was a robbery on April 2, 2012, in Fairfield in which the perpetrator was described as a “black male with dreads wearing a gray sweatshirt and 5 armed with a handgun.” The second incident was a carjacking in Fairfield on April 11, 2012. “During that incident, an individual approached and then struggled with the occupant of a car and hit him in the head with a handgun, ultimately stealing the vehicle. The perpetrator is described as a black man in his mid-20s with long dreadlocks, a black hooded sweatshirt and black pants.” The motion claimed the police sketch of the second suspect shows “a black man with hair that is virtually identical to Mr. Stewart‟s with a broad face and facial features.” Defendant argues on appeal the two men were so similar in appearance they could be twins. We cannot assess defendant‟s characterization due to an inadequate record. 3 At the hearing on the motion, the court allowed defense counsel to inspect the police reports, neither of which was lengthy. The court then offered defense counsel a chance to look over the reports, and she acknowledged on the record, “I have had a chance to briefly review the reports.” While there is no indication in the record as to whether counsel had the opportunity to take notes on what she read, she clearly had digested the contents. For example, with respect to the carjacking, defense counsel had sufficiently absorbed the information in the police report that she was able to recite the suspect‟s height, weight, hair length and style. The only other similarity she reported was that the carjack victim also reported being “hit in the head with a phone,” which she evidently considered comparable to Shishido‟s being hit in the head with a gun. 3 Defendant has not provided us with a record from which we can validate any such claim. The sketch of the carjacker is nothing more than a small rudimentary sketch of an African American with long dreadlocks, with indistinct facial features (in part due to poor photocopy quality). The photograph of defendant with which we have been provided is a photo array of six different men, with defendant in the number three position, all of whom appear to have dreadlocks (even that fact is not certain, the quality of the photocopy is so poor). But the photocopy of defendant in the lineup is of such poor quality that we cannot make out any of his facial features, much less could we agree with defendant that the drawing was close enough to be his “twin.” It was defendant‟s burden to provide us with a sufficient record on appeal to review the issues he raised. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) We have no basis in the record for comparing defendant‟s appearance with that of the April 11 carjacker. 6  After reading the reports, counsel withdrew her motion with respect to the April 2, 2012, incident because it was “a different type of incident.” However, defense counsel maintained the defense was entitled to a copy of the police report on the April 11 incident so she could “investigate” the matter further. The prosecutor opposed the motion. She argued that evidence of third party culpability should be excluded under Evidence Code section 352 because such evidence would tend to confuse and mislead the jury, particularly because the suspect had not been identified in the April 11 incident. The prosecutor said, “If the defense is allowed to bring in every male black with dreadlocks in Fairfield who committed crimes similar to this, robberies with guns and carjackings, we could just open up the flood gates.” The prosecutor argued there were inconsistencies in the two crimes (most significantly that one was a carjacking and one an armed robbery), and asserted the official information privilege, emphasizing the carjacking case was an “unsolved incident.” The prosecutor‟s opposition stated “there is no evidence linking anyone other than the defendant to this crime . . . .” She argued the police reports should not be released to defense counsel because they involved ongoing investigations and their release would “violate privacy interests of the victims and witness in those cases . . .” The court took the motion under submission to “review the report again and some additional points and authorities.” Several days later it denied the defense motion, reasoning as follows: “THE COURT: [¶] . . . [¶] I‟m going to deny the motion to allow third party culpability evidence. I just do not see any sufficient showing that the party responsible for these unsolved robberies was in any way involved in the matters for which Mr. Stewart is charged. And the fact that the suspect in these other matters is of the same ethnic background as Mr. Stewart, and wears his hair in the same fashion, and approximately the same age, is not in and of itself convincing to the Court in any way. So the request does not cause the Court to believe that there is any type of reasonable probability it‟s the same individual, or it‟s the type of evidence that would likely raise a 7 reasonable doubt to the jury hearing this matter. The motion for third party culpability is going to be denied.” After hearing defense counsel‟s argument, the court continued: “Well, I am just not prepared to order the police department to release its investigation into ongoing, serious criminal matters based on the showing that‟s been made. There is nothing in the circumstances of that report that the Court reviewed, and allowed counsel to review, that is at all similar to the type of robbery that occurred to what Mr. Stewart is being charged with, and so the request for the release of that information will be denied.” We are at a disadvantage in reviewing this issue, since we do not have access to the police reports in question, nor do we have a clear basis for comparison of defendant‟s appearance with that of the unidentified carjacker. (See fn. 3, ante.) We note that defense counsel could have—but did not—request that a copy of the police reports be filed under seal. (Cal. Rules of Court, rules 2.550-2.551.) Neither she nor appellate counsel took any action to secure a copy of the police report for our review. All the more reason for us to defer to the trial court so long as its ruling was not an abuse of discretion. We have no basis for such a finding on this record. Evidence of Third Party Culpability Defendant contends, “The trial court erred in denying defendant‟s trial counsel‟s request for access to the police reports of the robbery committed in April in order to investigate and present the defense of mistaken identity.” He further contends, “The trial court erred in excluding evidence that there was an armed robber active in Fairfield at the time of the Parkland robbery who looked and dressed very much like appellant and used robbery tactics identical to those used in that robbery.” First, we note that defense counsel was not entirely denied access to the report; she was denied a copy of it. More fundamentally, we find there was not sufficient similarity between the two crimes or criminals to make the report admissible as evidence of third party culpability. If defense counsel wanted to pursue this line of defense she could have conducted further investigation based on what she saw in the police reports. 8  “It is a defense against criminal charges to show that a third person, not the defendant, committed the crime charged. (People v. Hall (1986) 41 Cal.3d 826, 832.) A criminal defendant has a right to present evidence of third party culpability where such evidence is capable of raising a reasonable doubt as to his guilt of the charged crime. However, as the Supreme Court explained in People v. Hall, „we do not require that any evidence, however remote, must be admitted to show a third party‟s possible culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant‟s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.‟ ( Id. at p. 833.) In addition, on appeal, the defendant must show prejudice from the erroneous denial of discovery. (People v. Memro (1985) 38 Cal.3d 658, 684.)” (People v. Jackson (2003) 110 Cal.App.4th 280, 286.) Trial courts should “simply treat third-party culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion ([Evid. Code,] § 352).” (People v. Hall, supra, 41 Cal.3d at p. 834.) In People v. Elliott (2012) 53 Cal.4th 535 (Elliott), the Supreme Court further explained the relevancy inquiry: “ „[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt . . . must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant‟s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.‟ [Citations.] Evidence of a third party‟s prior crimes is inadmissible to establish the third party‟s criminal propensity. [Citations.] For evidence of an uncharged offense to be admissible to establish the third party‟s identity as the perpetrator of the charged crimes,„ “[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.” ‟ [Citations.] A large number of common marks may, when viewed in combination, establish the required distinctive pattern. [Citation.] A trial 9 court‟s ruling excluding third party culpability evidence is reviewed for abuse of discretion. [Citation.]” (Id. at pp. 580-581; see also, People v. Hall, supra, 41 Cal.3d at pp. 833-834.) The link between the robber in the case before us and the carjacker in the April 11 crime was simply too tenuous. The court did not abuse its discretion in finding it inadmissible―and not subject to further discovery―when balanced against the People‟s interest in confidentiality and third party privacy interests. The Supreme Court rejected a similar argument in People v. Brady (2010) 50 Cal.4th 547, where a defendant accused of murdering a police officer sought to introduce hotline tips from the public concerning the murder, including a recorded confession (later recanted) and an unsigned letter claiming responsibility for the murder. The court also excluded evidence that another individual resembled the composite drawing of the killer and evidence intended to link an Asian man with the killing because he had killed two other police officers.4 The trial court excluded evidence of all those tips on relevance grounds. (Id. at p. 557.) The Supreme Court concluded “the trial court did not abuse its discretion in excluding the four clues, as the proffered evidence suggested no link between the third parties and the actual perpetration of [the officer‟s] murder.” (People v. Brady, supra, 50 Cal.4th at p. 558.) With respect to the unsigned letter claiming responsibility, the court observed: “Third party culpability evidence that does not identify a possible suspect is properly excluded. (See People v. Sandoval (1992) 4 Cal.4th 155, 176-177.)” (Id. at p. 559.) And even assuming the trial court erred in excluding evidence of the 4 As to that clue, several eyewitnesses to the police officer‟s murder “described the assailant as an Asian male and the clue referred to an Asian male who had killed two members of a nearby police department and was suspected of committing an armed robbery.” (People v. Brady, supra, 50 Cal.4th at p. 558.) “[N]o evidence implicated this person” in the murder for which defendant was on trial. (Ibid.) “Although the man‟s ethnicity and his possible involvement in an unrelated robbery and killing of other police officers initially might have suggested some involvement” in the murder of which defendant was accused, “defendant presented no evidence actually linking this person” to the murder in question. (Ibid.) 10 hotline tips, the error was not prejudicial under either the state or federal standard of review. (Id. at p. 559.) In People v. Page (2008) 44 Cal.4th 1, the defendant claimed two other men were potential suspects in the offense of which he was convicted, but they had not been thoroughly investigated. (Id. at pp. 35-36.) The Supreme Court found no abuse of discretion in excluding evidence of their possible culpability “because it did not link any third person to the actual perpetration of the crime.” (Id. at p. 37.) “[T]here must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime,” as opposed to simply showing that the person had the motive or opportunity to commit the offense. (Id. at p. 38.) (See Holmes v. South Carolina (2006) 547 U.S. 319, 327 [noting “widely accepted” rule that third party culpability evidence that does not sufficiently connect the third party to the crime may be excluded].) In the case before us the argument in favor of admissibility is even weaker. The argument was similar to that in Page―that the police nabbed the wrong man and failed to investigate another potential suspect―but the unidentified “other suspect” was deemed a suspect by defendant alone. And defendant claimed he was a suspect based on nothing more substantial than superficial resemblance and his use of a gun in another crime. The trial court did not abuse its discretion in denying defense counsel‟s request to copy police reports and introduce evidence of third party culpability. First, the suspect in the April 11 Fairfield carjacking had not been identified. The investigation into that crime was ongoing. As noted above, “[t]hird party culpability evidence that does not identify a possible suspect is properly excluded.” (People v. Brady, supra, 50 Cal.4th at p. 559; see also, Jackson, supra, 110 Cal.App.4th at p. 288 [“the defense value of . . . other similar crime files was tenuous unless the crimes were solved”].) Second, there was no evidence to “link the third person either directly or circumstantially to the actual perpetration of the crime.” (Elliott, supra, 53 Cal.4th at p. 580.) Defense counsel argued the police sketch of the suspect in the carjacking resembled defendant. Counsel also argued the crimes were similar because the carjacker 11 used a handgun and struck the victim on the head. However, there was no evidence linking the suspect to the robberies committed against Hernandez and Shishido. Third, there was nothing remotely approaching a “pattern” in the two crimes “so unusual and distinctive as to be like a signature.” (Elliott, supra, 53 Cal.4th at p. 581.) One crime was a run-of-the-mill street robbery and the other a seemingly ordinary carjacking. The February incident involved a demand for money and the April incident involved the demand for a cell phone and the taking of a vehicle. The fact that guns were used in both incidents is not unusual or distinctive, nor is the fact that the perpetrator in both instances struck the victim with his gun. Such details are depressingly familiar and common. Moreover, there were distinct differences between the two crimes. The robbery of Hernandez and Shishido was committed at approximately 7:00 p.m., while the carjacking was committed at 1:40 a.m. The robbery occurred in the common area of a private residential complex. The carjacking apparently occurred at an intersection of two public streets. The robber in February took off on foot, while the carjacker drove off in the victim‟s car. Finally, the prosecutor urged the court to exclude the evidence under Evidence Code section 352. “ „Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]‟ [Citation.] A trial court‟s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion.” (People v. Lewis (2001) 26 Cal.4th 334, 374.) Allowing the defense to introduce evidence of the unsolved April carjacking would have sidetracked the jury with evidence of an unsolved crime involving an unknown suspect with no proven connection to the crimes in this case. The result would have been jury confusion and undue consumption of time. Failure to provide defense counsel with a copy of the April 11 police report The trial court also was well within its discretion in refusing to provide a copy of the police reports to defense counsel, having based its decision in part on the fact that the 12 carjacking had not been solved and involved an ongoing investigation. The prosecution asserted the official government privilege under Evidence Code section 1040 in response to defendant‟s request for copies of the police reports. “Ongoing investigations fall under the privilege for official information. (Evid. Code, § 1040.) Moreover, the victims have a constitutional right of privacy. (Cal. Const., art. I, § 1.) Both of these factors weigh heavily against a criminal defendant‟s right to potentially exculpatory material.” (Jackson, supra, 110 Cal.App.4th at p. 287.) Evidence Code section 1040 expressly requires the “necessity for preserving the confidentiality of the information” to be weighed against “the necessity for disclosure in the interest of justice.” (Evid. Code, § 1040, subd. (b)(2).) Two cases cited to the court below dealt specifically with “whether a defendant‟s entitlement to potentially exculpatory material outweighs the official information privilege and a victim‟s privacy rights”: Jackson, supra, 110 Cal.App.4th at page 288 and People v. Littleton (1992) 7 Cal.App.4th 906. A “ „trial court has discretion “ „to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest,‟ ” or when there is an “ „absence of a showing which specifies the material sought and furnishes a “plausible justification” for inspection . . . .‟ ” [Citation.] Although policy may favor granting liberal discovery to criminal defendants, courts may nevertheless refuse to grant discovery if the burdens placed on government and on third parties substantially outweigh the demonstrated need for discovery. [Citations.]‟ [Citation.]” (Littleton , supra, 7 Cal.App.4th at p. 910.) Littleton held the privacy interests of victims and citizen witnesses in those cases outweighed the “tenuous and speculative” benefit to defendant in discovering those police reports. (Id. at p. 911.) In Littleton the defendant had requested copies of police reports in 12 other burglary-rape cases in the same geographic area where defendant‟s crime had occurred, in which no suspect had been identified and the defendant had not been eliminated as a suspect. (Littleton, supra, 7 Cal.App.4th at pp. 909-911.) “Because no one had been arrested or charged with those other crimes in this case, the information in the reports 13 would have been of no value to the defendant unless he was able to solve the other crimes and identify the perpetrator. . . . Weighed against this speculative benefit was the government‟s legitimate need for confidentiality of ongoing police investigations and the privacy interests of the victims and witnesses identified in those other reports.” (Id. at p. 911.) A similar result was reached in Jackson, supra, 110 Cal.App.4th at pp. 288-289, which involved a challenge based on both state statutory and federal constitutional grounds. The courts in Jackson and Littleton distinguished a case in which a defendant was granted discovery of police investigation files of similar crimes on grounds that the other crimes in that case had been solved and other individuals had been charged with their commission. “[T]his distinction is critical: the government‟s interest in maintaining confidentiality in a case of ongoing investigation is far greater than in a case where a suspect has been charged and the matter has entered the public view through the court system.” (Jackson, supra, 110 Cal.App.4th at p. 288; see also Littleton, supra, 7 Cal.App.4th at pp. 910-911.) The court here fully reviewed the police report in question. Following that review, the trial court saw no striking similarities between offenses or offenders such as to render admissible evidence of the carjacking. Indeed, defense counsel, having reviewed the whole report, came up with no explanation about why she needed a copy of it except to locate the victim and possibly other witnesses and to “investigate” the matters contained in the police report. She did not point out any additional details contained in the reports that needed follow-up. On appeal defendant proposes only that the victim of the carjacking could have testified that defendant looked a lot like the carjacker. It seems to us that, having reviewed the police report, defense counsel probably gleaned enough information to follow up with the victim if she deemed it necessary. Moreover, defendant himself could have testified he was not involved in the robbery and told the jury, as he did the arresting officer , that another man in the immediate vicinity resembling him in appearance and hairstyle and wearing identical 14 clothing was the actual culprit.5 He elected instead to have his attorney present the drug-deal-gone-bad defense. Finally, any error in excluding evidence of third party culpability was harmless under either the state or federal standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The evidence against defendant was compelling. Both Hernandez and Shishido identified him near the crime scene moments after they were robbed. They were absolutely positive about their identification both at the crime scene and at trial. A gun similar to the one used in the robbery was found in a location where defendant‟s female companion had gone shortly after the robbery. And finally, defendant refused to participate in a live lineup at the jail, which tended to show consciousness of guilt. Even if evidence of the April 11 carjacking had been admitted, there is no reasonable possibility or probability defendant would have received a more favorable outcome. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.) Brady v. Maryland Defendant contends, “Evidence that a very similar crime has been committed by someone other than the defendant is potentially exculpatory evidence which must be disclosed under Brady v. Maryland.” Under Brady, the prosecution violates a defendant‟s right to due process if it withholds exculpatory evidence―that is, evidence “favorable to the accused”―material to the defendant‟s guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) Evidence is “material” within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. (Cone v. Bell (2009) 556 U.S. 449, 469-470.) A “reasonable probability does not mean that the defendant „would more likely than not have received a different verdict with the evidence,‟ only that the likelihood of a different 5 The court ruled before trial that if defendant testified, the jury could be told that he suffered felony convictions in 2006 and 2008. Defendant had prior felony convictions for two robberies and a prior conviction for grand theft from the person, which was originally charged as a robbery. 15 result is great enough to „undermine[] confidence in the outcome of the trial.‟ ” (Smith v. Cain (2012) __ U.S. __, 132 S.Ct. 627, 630, quoting Kyles v. Whitley (1995) 514 U.S. 419, 434.) On a claim of Brady violation, we review the record independently. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) As the Attorney General points out, “[t]here is no Brady violation „where a defendant “knew or should have known the essential facts permitting him to take advantage of any exculpatory information,” or where the evidence is available . . . from another source,‟ because in such cases there is really nothing for the government to disclose. [Citations.]” (Coe v. Bell (6th Cir. 1998) 161 F.3d 320, 344.) “When, as here, a defendant has enough information to be able to ascertain the supposed Brady material on his own, there is no suppression by the government.” (United States v. Aichele (9th Cir. 1991) 941 F.2d 761, 764.) In this case defendant‟s Brady claim fails because the defense had access to the key information concerning the carjacking on April 11, 2012. Indeed, defense counsel attached a copy of the police sketch of the carjacking suspect to her motion to admit evidence of third party culpability. During the hearing on the motion, the court permitted defense counsel to personally review the police reports. Though the court refused to give her a copy of the report relating to the carjacking, there is no reason to think she could not have made a mental note of the victim‟s name and pursued further investigation as warranted. Even after reviewing the report she was not able to list any truly significant similarities between the robbery of Hernandez and Shishido and the April 11 carjacking. The only additional information she provided was that the carjacker was five feet, eight inches tall and weighed 150 pounds, whereas defendant was five feet, six inches tall and weighed 140 pounds. Defense counsel acknowledged the height and weight of the two suspects were “inconsistent.”6 6 Defendant asks us to construe the record as a mistranscription, insisting defense counsel must have said the two men‟s heights and weights were “consistent.” We decline 16  Other than that, she continued to argue the same factors she had in her written motion based on the police sketch and accompanying press release alone: the robber and carjacker were of the same race, both had shoulder-length dreadlocks, both wore hoodies, both used guns, and both pistol-whipped their victims. These are the same factors defendant now argues on appeal. This strongly suggests the police report itself offered no additional details about the carjacking or the carjacking suspect to support a finding of similarity between the two crimes. For instance, we think it is fair to infer that the police report said nothing about the carjacker having acne, or defense counsel would have pointed that out to the court. In the absence of some more distinctive trait of appearance, and in the absence of a distinctive modus operandi, it is doubtful such evidence can be considered truly “exculpatory” within the meaning of Brady. But even assuming for purposes of argument the evidence was “exculpatory,” we cannot find it material. In determining the materiality of evidence allegedly suppressed by the prosecution, we consider both the probative force of the evidence that was withheld from the defense and the strength of the evidence actually presented. The more uncommon the physical characteristics of the defendant which are shared by the criminal at large, the stronger the probative value of the unsolved crime. Similarly, the more the manner in which the two crimes share uncommon and “signature-like” features, the more likely it is the evidence of the unsolved crime may be considered material. The tenuous connection between the two criminal episodes in this case makes the probative value of the evidence weak at best. It is questionable whether evidence that a perpetrator of a similar height, weight, and ethnic background also committed a robbery on a date when the defendant was in custody―without more―can rightly be considered “favorable” to the defense. Yet, in this case the physical features that suggested the robber and the carjacker were the same person were nothing more than generic characteristics, such as age, race, and hairstyle. to do so. Given the two-inch and ten-pound discrepancy between the two descriptions, it is entirely possible defense counsel understood the descriptions to be “inconsistent.” 17 The heights and weights were not identical. The clothing styles were similar but not identical, and were common among young men in defendant‟s age group. The police report on the present crime notes that defendant has acne, whereas, so far as we can discern, no such observation was made about the carjacker.7 Nor was the mere use of a handgun―either as a means of intimidation or in the pistol-whipping that occurred in each case―an unusual factor in today‟s crimes. There was no “signature” modus operandi. The crimes were not even the same, one being a garden-variety armed robbery and the other being a seemingly ordinary carjacking. In similar circumstances Jackson, supra, 110 Cal.App.4th 280, cited by the People below, applied the rationale of Littleton, supra, 7 Cal.App.4th 906, in the context of a Brady claim. The court held it was proper under both statutory discovery rules and Brady to deny a burglary-rape defendant discovery into police investigative files of other burglary-rapes in the area. (Jackson, supra, at pp. 284-285, 288-289, 291.) This was true even though one of three crimes on which discovery was sought “shared many similarities with the crimes charged against appellant, including the time and location of the attack, mode of entry, nature of the touchings, flight of the suspect and his initial description.” (Id. at supra, at p. 287.) Defendant distinguishes Littleton and Jackson on grounds that he can be eliminated as a suspect in the April 11 carjacking because he was in custody when that offense was committed, whereas the defendants in Littleton and Jackson could not be eliminated as suspects in the other cases. However, defendant‟s argument essentially boils down to this: a criminal defendant is entitled to discover police investigative files related to all similar (not even identical) unsolved crimes in the same city where the charged offense occurred, at least insofar as the perpetrator in those cases resembled the defendant in height, weight, race, hairstyle and clothing style, the crimes bore some generic similarities such as gun use, and the defendant may be eliminated as the perpetrator of the second offense. We cannot carry either Brady or the defendant‟s right 7 The police report itself has not been made available for our review. 18 to discovery that far. There must be something more distinctively similar about the crimes or the criminals to warrant the burdens inherent in requiring such disclosure. Commonplace similarities in appearance, such as age, height, weight and race, are insufficient. Defendant relies almost exclusively on United States v. Jernigan (9th Cir. 2007) 492 F.3d 1050 (Jernigan), in which a diminutive Hispanic woman with acne or pock marks on her face was convicted of bank robbery after allegedly robbing three banks. While she was in custody and awaiting trial, three more bank robberies were committed in the area by a woman “whose description bore an uncanny physical resemblance” to Jernigan‟s. (Id. at p. 1051.) “Although the prosecution knew that other nearby banks had been robbed by a diminutive, Hispanic female with poor skin after Jernigan‟s arrest, the prosecution failed to relay this information to defense counsel.” (Ibid.) The government did not dispute “that the evidence of an additional bank robber matching Jernigan‟s description was favorable to Jernigan and that the government failed to provide it to defense counsel . . . .” (Id. at p. 1053.) The only issue in dispute was whether the evidence was material. (Ibid.) Unlike in the present case, a specific individual had been arrested and charged with the later bank robberies. (Id. at p. 1052.) After reviewing the evidence as well as national statistics showing “only six percent of all bank robbery perpetrators were female” in the year the robberies took place, and “[o]nly six percent of bank robbers overall (male and female) were Hispanic,” the Ninth Circuit concluded the evidence was material and Jernigan was prejudiced by its suppression. (Jernigan, supra, 492 F.3d at p. 1056.) The holding of Jernigan applies to an accused and another known or believed to have committed a similar crime who both have “phenotypically similar” traits. (Id. at p. 1053.) Of particular significance in our view was that both Jernigan and the other accused robber had acne or pock marks on their faces. This unusual coincidence of largely inalterable physical features, together with the low crime statistics for the defendant‟s sex and ethnic group, appears to have had a major impact on the court‟s decision. 19  There are several important distinctions between our case and Jernigan. First, the crime committed by the bank robber in Jernigan was identical to the defendant‟s crime (i.e., bank robbery), and in fact she robbed the same bank branch that defendant was convicted of robbing. (Jernigan, supra, 492 F.3d at p. 1052.) Common experience tells us bank robberies are less common than street robberies such as that involved in our case. Indeed, in our case defendant sought to introduce evidence of a suspect in an entirely different crime, namely a carjacking. Although both the robber and the carjacker carried guns and used their weapons to strike their victims on the head, these are not distinctive or unusual features of such unfortunately common crimes. None of the behavior of the April 11 carjacker makes his conduct or existence material in the present case. As for his appearance, the defendant in Jernigan, had an “uncanny physical resemblance” to a still active bank robber. (Jernigan, supra, 492 F.3d at p. 1051.) “[B]oth women were roughly five feet tall, Hispanic, and had acne or pock-marked complexions.” (Id. at p. 1051, fn. omitted.) This combination of unusual physical features was “noteworthy” to the court‟s decision. (Id. at p. 1051.) In this case, there was no evidence of a “noteworthy” or “uncanny” resemblance. The carjacker was reported to be two inches taller than defendant (5 feet 8 inches versus 5 feet 6 in ches) and ten pounds heavier. Neither the individual similarities pointed out by defendant (race, age, weight, hairstyle, style of dress) nor their combination in a single individual are unusual in the population, as were the pock marks of the short Hispanic woman. Many young African Americans wear their hair in dreadlocks and wear hoodies. Interestingly, the arrest report for defendant shows that he, too, had acne, but there was no similar notation for the carjacker. The court in Jernigan also had before it statistics to show a Hispanic female was “a most unlikely bank robber.” (Jernigan, supra, 492 F.3d at p. 1055.) In our case we have been presented with no statistics to suggest that young African American men, with or without dreadlocks, are underrepresented in committing the types of crime involved here. Therefore, Jernigan is not persuasive. 20  As the prosecutor told the trial court, “If the defense is allowed to bring in every male black with dreadlocks in Fairfield who committed crimes similar to this, robberies with guns and carjackings, we could just open up the flood gates.” The trial court did not abuse its discretion in refusing to open those flood gates. Strength of the evidence as affecting admissibility of third party culpability evidence Defendant contends the prosecution‟s case was weak and that factor should have influenced the court‟s ruling on admissibility of evidence of third party culpability. He argues the prosecution‟s evidence was so weak that additional evidence of the April 11 carjacking would have been sufficient to raise a reasonable doubt as to defendant‟s guilt. In particular, defendant argues “[t]he evidence linking defendant to the crime was unreliable cross-racial identification of him made under highly suggestive conditions,” and “[t]here was none of the corroborating evidence one would expect to find if defendant was actually the robber.” Defendant also argues the gun found under the ice machine did not match the victims‟ descriptions of the gun used in the robbery, there was no evidence defendant‟s female companion was Gross, there was no evidence defendant handed anything to his female companion, there was no evidence Gross put a gun under the ice machine, and there was no evidence linking the gun to either defendant or Gross. 8 But the evidence pointing to defendant‟s guilt was much stronger than he acknowledges. Defendant wore the same clothes as the robber. Both Hernandez and Shishido firmly identified defendant near the scene within minutes of the robbery and were equally certain at trial. Defendant asks us to discount the identification evidence because the identifications were cross-racial.9 The jury was instructed under CALCRIM No. 315 that, in evaluating identification testimony, it should take into account whether the 8 Gross initially told the police the gun was hers. She later told them it was defendant‟s gun and he had used it in both the Hernandez-Shishiido robbery and the New Year‟s Day robbery. 9 Defendant‟s unopposed motion for judicial notice of the ethnic backgrounds of the victims was granted on March 28, 2013. 21 witness and the defendant are of different races. Given the victims‟ certainty of the identification, the close proximity in time between the show up and the crime, and the court‟s admonition to the jury, defendant‟s complaint about cross-racial identification carries little weight. Cross-racial or not, these two independent identifications of defendant were strong evidence of his guilt. The rest of the evidentiary gaps cited by defendant could be filled by inference from the evidence presented. Officer Kresha told Officer High defendant had been in the company of a woman just prior to his arrest. Officer High went to Travis Lodge, not far from the crime scene, specifically because he recognized defendant from a previous encounter there. He evidently went there on the hunch he might find the woman who had accompanied defendant on the prior occasion. He learned from the front desk clerk that Gross had come in earlier and passed through the vending machine area. He personally contacted Gross in the hotel‟s stairwell and would have known whether she was the same woman who had been with defendant on the prior occasion. That she was the same woman may be inferred from all the testimony. Similarly, when Officer High found the gun under the ice machine, it was reasonable to infer Gross had abandoned it there. It was also fair to infer she had obtained it from defendant after the robberies. The jury was instructed in accordance with CALCRIM No. 223 that both direct and circumstantial evidence are acceptable forms of proof. Defendant also exaggerates the supposed contradictions in identifying the gun as the one used in the robberies. Hernandez testified the gun resembled the one used in the robbery. Shishido also testified it could have been the same gun, although he was not sure. Neither Hernandez nor Shishido was familiar with guns, and their testimony about the gun was not altogether consistent. While Shishido thought the gun was silver or shiny, Hernandez testified it was black. The gun, in fact, is predominantly black with some silver showing, which may explain the discrepancies in the two descriptions. That Hernandez‟s wallet and Shishido‟s ten dollar bill were never recovered did not significantly undercut the prosecution‟s case. Defendant could have secreted the 22 items somewhere, given them to Gross, or handed them to the man he and Gross were seen talking to in a car. Finally, defendant points out he was “behaving in a very unusual manner for a person who has just robbed two men at gunpoint . . . .” Defendant claims if he “had actually been the man who robbed Mr. Hernandez a few minutes earlier,” he would have run away rather than lingering near the apartment complex. But an armed assailant who successfully robbed two unarmed individuals would not necessarily expect the victims to follow him. It would not be unbelievable for defendant to rendezvous with his girlfriend before leaving the area, which is precisely what occurred. Although defendant lingered several minutes, he was in the process of leaving when Hernandez arrived and spotted him. And even if defendant‟s behavior was unusual, it could as easily be a testament to his brazen lawlessness as to his innocence. While flight is often evidence of a guilty conscience, failure to flee is not necessarily indicative of innocence. (People v. Williams (1997) 55 Cal.App.4th 648, 651-653.) The jury was aware of the facts and could draw or refuse to draw available inferences. Add to that defendant‟s refusal to participate in a lineup, and the evidence of guilt was strong. Truly, the most “unusual” behavior by defendant, as compared with that of an innocent man, was his refusal to participate in a lineup that was scheduled at the request of his attorney. Obviously, the lineup could have exonerated him if he were truly innocent of the offense. His refusal to participate suggests a guilty conscience and leads us to conclude the evidence of a carjacker with dreadlocks was not likely to have raised a reasonable doubt about his guilt. DISPOSITION The judgment is affirmed. 23  _________________________ Richman, J. We concur: _________________________ Kline, P.J. _________________________ Haerle, J. 24 

37 F.3d 96 39 ERC 1698, 25 Envtl. L. Rep. 20,384 Elaine LEO, Administratrix of the Estate of Catherine M.Bekes, deceased, Administratrix Ad Prosequendum onbehalf of the Estate of Thomas Bekes,deceased, and individually;Linda Yoder, individuallyv.KERR-MCGEE CHEMICAL CORPORATION, a Delaware Corporation,successor in interest to Welsbach Company and/or WelsbachIncandescent Gas Light Co., Lindsay Chemical Co., AmericanPotash and Chemical Corp. and American Potash, an IllinoisCorporation; U.G.I., f/k/a United Gas Improvement Company,a Pennsylvania Corporation; John Does 1-20; Robert Roes1-20; James Joes 1-20; XYZ Corporation 1-20; Rheem Rudd,a corporation successor interest to City Investing Co., RuddWaterheater Division and Rudd Manufacturing Company,Kerr-McGee Chemical Corporation, Appellant. No. 93-5730. United States Court of Appeals,Third Circuit. Argued Aug. 1, 1994.Decided Sept. 19, 1994. Thomas J. Hagner (argued), Freeman, Mintz, Hagner & Deiches, Haddonfield, NJ, for appellee. Peter J. Nickles (argued), Coleman S. Hicks, Richard A. Meserve, Elliott Schulder, Caroline M. Brown, Covington & Burling, Washington, DC, for appellant. BEFORE: GREENBERG and STAPLETON, Circuit Judges, and ATKINS, District Judge.* OPINION OF THE COURT GREENBERG, Circuit Judge. I. FACTUAL AND PROCEDURAL HISTORY 1 This matter is before the court following entry of our order on November 30, 1993, granting defendant-appellant Kerr-McGee Chemical Corporation permission to appeal pursuant to 28 U.S.C. Sec. 1292(b). We will reverse the order of the district court denying Kerr-McGee's motion for summary judgment entered on September 8, 1993, and we will remand the matter to the district court for entry of a summary judgment in its favor. 2 The facts are largely not in dispute, and, in any event, we accept the allegations of the plaintiffs-appellees Elaine Leo and Linda Yoder for purposes of this appeal. From prior to the turn of the 20th century continuing until 1940, the Welsbach Incandescent Light Company maintained and operated a factory in Gloucester City, New Jersey, for manufacturing incandescent gas mantles, a process involving extracting thorium from monazite ores. This process generated toxic wastes consisting of thorium by-products which Welsbach deposited on the factory site, thus contaminating the surrounding land. In 1940, Welsbach's Illinois-based competitor, Lindsay Light and Chemical Company, purchased Welsbach's gas mantle business. In the sale, Lindsay acquired Welsbach's outstanding orders, records, formulas, raw materials, inventory, customer lists, gas mantle production line, and the right to use the "Welsbach" name. However, Lindsay did not acquire the Gloucester City land and factory. Rather, it moved the gas mantle business to its own plant in Illinois. 3 Following a series of acquisitions, Kerr-McGee acquired Lindsay, and it thus concedes that in this litigation it stands in Lindsay's shoes. Accordingly, we will refer to Lindsay and Kerr-McGee simply as Kerr-McGee. Welsbach owned a second line of business which it sold to Rheem Manufacturing Company but Rheem's successors, though originally defendants in this action, have been dismissed from the case. Welsbach was dissolved in 1944. 4 In 1961, Leo and Yoder, who are sisters, and their parents, Thomas and Catherine Bekes, moved to a home close to the former site of the Welsbach factory in Gloucester City, though Leo and Yoder now live elsewhere. On December 5, 1988, Thomas Bekes died from bladder cancer. In March 1991, the New Jersey Department of Environmental Protection notified Catherine Bekes of the high levels of gamma radiation and thorium on her property and on June 3, 1991, the New Jersey Spill Compensation Fund acquired her residence, forcing her to relocate. Soon thereafter she also died from bladder cancer. Leo and Yoder allege that their parents contracted their bladder cancer from exposure to thorium and other waste substances deposited on the Welsbach land. 5 On January 29, 1993, Leo and Yoder filed suit, individually, and on behalf of their parents' estates, in the Superior Court of New Jersey against Kerr-McGee and certain other defendants to recover for death, injuries, and the potential risk of cancer arising from their exposure to thorium and other waste substances generated in the Welsbach gas mantle operation and deposited on the Gloucester City property. As germane here, Leo and Yoder seek to impose liability on Kerr-McGee on a theory of strict liability.1 While Leo and Yoder do not claim that Kerr-McGee itself generated the waste which caused the deaths and injuries, they assert that it is liable by reason of its acquisition of Welsbach's gas mantle business. On March 4, 1993, one of the other defendants removed the case to the United States District Court for the District of New Jersey on the basis of diversity of citizenship. 6 Subsequently, Kerr-McGee filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) on the ground that the complaint did not state a claim on which relief may be granted inasmuch as Kerr-McGee never has owned the Gloucester City land and factory. In its bench opinion the district court treated the motion as a motion for summary judgment because it considered material other than the complaint submitted on the motion. The court then predicted that the New Jersey Supreme Court would extend the product line doctrine of successor corporate liability, as explicated in Ramirez v. Amsted Indus., Inc., 86 N.J. 332, 431 A.2d 811 (1981), to the toxic tort at issue, because the toxic by-products were generated directly from the manufacturing of Welsbach's gas mantles.2 Thus, the court denied Kerr-McGee's motion by the order of September 8, 1993. Kerr-McGee then moved for an amendment of the order to allow an interlocutory appeal, and the district court granted the amendment by an order entered on November 1, 1993. We then granted Kerr-McGee leave to appeal. II. DISCUSSION 7 We exercise plenary review as the appeal presents an issue of law. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir.1994). Furthermore, we will apply New Jersey law as the parties agree that it is applicable. Thus, we undertake to predict how the Supreme Court of New Jersey would resolve the issues in this case. J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, 1270-72 (3d Cir.1994). 8 We start, of course, with Ramirez, 431 A.2d 811, in which the Supreme Court of New Jersey held that: 9 where one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for the injuries caused by defects in the units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor. 10 431 A.2d at 825. As the district court acknowledged, Ramirez is distinguishable from this case. Unlike the injuries in Ramirez, the injuries of Leo, Yoder, and their parents were not caused by a unit in the product line manufactured first by Welsbach and then by Kerr-McGee. Instead the injuries in this case were caused by conditions created by Welsbach's operations on land which Welsbach retained at the time of the sale of the gas mantle business to Kerr-McGee and on which Kerr-McGee never conducted any manufacturing activities. Therefore, we must determine whether in light of these distinctions from Ramirez, the New Jersey Supreme Court nevertheless would apply the result in Ramirez to this case.3 11 The Ramirez court predicated its conclusion that the successor corporation could be liable for injuries caused by its predecessor's defective product on three rationales: (1) the sale of the enterprise virtually destroyed the injured party's remedy against the original manufacturer; (2) the successor has the ability to assume the original manufacturer's risk-spreading role; and (3) it is fair to require the successor to assume a responsibility for defective products as that responsibility was a burden necessarily attached to the original manufacturer's good will being enjoyed by the successor in the continued operation of the business. Id. 431 A.2d at 820. Clearly these rationales do not support the extension of successor liability to Kerr-McGee in this case. 12 The first factor, the destruction of the injured party's remedy is a necessary but not a sufficient basis on which to place liability on the successor.4 Accordingly, if the selling corporation remains a viable entity able to respond in damages to the injured party, a successor acquiring a product line will not be liable for injuries caused by the predecessor's product after the product's sale as in that circumstance there would be no reason to impose successor liability. Lapollo v. General Elec. Co., 664 F.Supp. 178 (D.N.J.1987) (applying New Jersey law after Ramirez ). This initial rationale for the product-line doctrine of successor liability merely focuses on the need for imposition of successor liability rather than whether it is fair to impose it. Therefore, we will not hold that proof that Leo and Yoder cannot recover against Welsbach because it has been dissolved is in itself a sufficient basis for the imposition of successor liability on Kerr-McGee. 13 The second rationale on which the Supreme Court of New Jersey based its result in Ramirez was the successor's ability to assume the predecessor corporation's risk-spreading role. We think that the Supreme Court of New Jersey would recognize that Kerr-McGee does not have the capacity to assume Welsbach's risk-spreading role. In this regard, we point out that if successor liability can be imposed for a toxic tort arising from the predecessor's operations at a facility which the successor never acquires or controls, a prudent manufacturer acquiring a product line would make an analysis of environmental risks associated with the seller's facilities similar to that now undertaken by purchasers of real estate. The purchaser then would attempt to acquire insurance for possible liabilities associated with the seller's real estate. 14 The impediment to commercial transactions from such a process is evident. Indeed, inasmuch as a manufacturer might build a product or its component parts at more than one facility, a purchaser of a product line might face daunting obstacles in attempting to assess its risks of successor toxic tort liability for conditions on property to be retained by the seller of the product line. Furthermore, a product-line purchaser not acquiring its predecessor's manufacturing facility probably would not be able to lessen the risks of toxic tort liability associated with the real estate. It is doubtful that such a product-line purchaser would be able to undertake cleanup operations on land it did not own. Moreover, the product-line purchaser might be unwilling to undertake such potentially costly projects.5 It seems clear, therefore, that if Ramirez applies here, a purchaser of a product line will be subject to liabilities for toxic torts of unpredictable scope for an indefinite period. Overall, we cannot conceive that the Supreme Court of New Jersey would believe that the purchaser of a product line not acquiring the real estate at which the product was manufactured reasonably could assume its predecessor's risk spreading role for toxic torts.6 15 In contrast, a successor to a product line may be able to take steps to reduce its risk of liability for injuries caused by the predecessor's products through recall and educational programs which include those products. Furthermore, successor liability for injuries caused by units manufactured by the predecessor, at least when compared to potential toxic tort liability, is a discrete manageable matter. First, the successor may be able reasonably to anticipate the risks associated with a product it is acquiring. Second, product-line successor liability is applied in cases of the production of personal property. Inasmuch as such property is not likely to have an indefinite useful life, passage of time will diminish the chance of liability being imposed on the successor. 16 This constant diminution of exposure to product liability is enhanced by the rule followed in New Jersey and elsewhere that a manufacturer cannot be strictly liable unless there was a defect in the product when it left the manufacturer's control. Scanlon v. General Motors Corp., 65 N.J. 582, 326 A.2d 673, 677 (1974). It seems apparent that, except perhaps in design defect cases, a defect in a product when the manufacturer distributed the product is likely to manifest itself and cause injury within a reasonable time after the product is manufactured. Accordingly, as a practical matter, successor liability under Ramirez is likely to be imposed in most cases, if at all, for a limited period.7 Furthermore, if there is an injury from a product a long time after it leaves the manufacturer's hands, the injured plaintiff may have difficulty establishing that the defect existed in the product when manufactured and originally distributed. Thus, using the time scenario here, it would be unusual for the successor in a product line case to be defending an action in the 1990's for a product that could have been built at the latest in 1940. 17 On the other hand toxic tort liability can be imposed for activities in the distant past. See T & E Indus., Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991).8 This tail on potential toxic tort liability following the disposal of chemical wastes is attributable to the fact that the toxic wastes may remain in the ground for long periods, thus exposing persons and property to injury long after manufacturing has ended. Indeed, this case demonstrates how long the successor can face claims for toxic torts. Furthermore, the difficulty that the purchaser of a product line will have in assessing its risk of liability for toxic torts as compared to its risk of successor product liability is further heightened by the fact that whereas injuries from defective products are likely to be traumatic, and thus be immediately obvious, injury from exposure to toxic wastes may develop over an extended period. We also observe that it would be more likely that the successor could acquire insurance coverage for the discrete risks flowing from injuries caused directly by a predecessor's product than for environmental risks from conditions on real estate. 18 The third Ramirez rationale, that it is fair to require a successor to assume a responsibility for defective products as that responsibility is a burden necessarily attached to the successor's acquisition of the predecessor's good will, has no application in this case. The good will that Kerr-McGee acquired from Welsbach was attached to the product line it acquired, gas mantles, rather than to the site at which Welsbach manufactured the product. Thus, Leo and Yoder do not assert that this is a case in which Welsbach and Kerr-McGee encouraged the purchasers of the gas mantles to associate them with their geographical source, as, e.g., "a genuine widget manufactured in the widget center of the world." Consequently, while Leo and Yoder point out that Kerr-McGee's purchase of the Welsbach gas mantle product line was profitable, and they attribute that profit in part to the good will it acquired from Welsbach, that point is immaterial. 19 In reaching our result, we quite naturally consider our opinion in City of Philadelphia v. Lead Indus. Ass'n, 994 F.2d 112 (3d Cir.1993). There we indicated that while: 20 [a] federal court may act as a judicial pioneer when interpreting the United States Constitution and federal law ... [i]n a diversity case, however, federal courts may not engage in judicial activism. Federalism concerns require that we permit state courts to decide whether and to what extent they will expand state common law.... Our role is to apply the current law of the jurisdiction, and leave it undisturbed. 21 Id. at 123 (internal citations and quotations omitted). We could allow liability to be imposed in this case on Kerr-McGee only if we stretched Ramirez far beyond its original scope and, in light of City of Philadelphia v. Lead Indus. Ass'n, Inc., we will not do that. While the district court believed that this case could come within the Ramirez holding, in large part it reached that conclusion because of what it thought was "the traditional New Jersey view that if you are injured somebody ought to be liable for it." But we reject that approach. While we might be willing to apply the precedents of the New Jersey Supreme Court in circumstances somewhat beyond the limits of liability that court has recognized in extant cases, we will not apply Ramirez in the circumstances here, which are far beyond the limits of that case. 22 In closing, we note that the parties in their briefs discuss cases involving liability of successors acquiring contaminated property and other cases involving liabilities arising from the ownership of and activities on real estate. See, e.g., T & E Indus., Inc. v. Safety Light Corp., 587 A.2d 1249; State of New Jersey, Dep't of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983). We have examined these cases but do not discuss them, as they have only the most tangential relationship to this case in light of the fact that Kerr-McGee never owned, controlled or engaged in activities on the Gloucester City property. III. CONCLUSION 23 We will reverse the order of September 8, 1993, and will remand the matter to the district court for entry of a summary judgment in favor of Kerr-McGee. 24 ATKINS, Senior District Judge, specially concurring: 25 While the record does not reflect the fact, this judge takes judicial notice of the procedure, adopted by 44 of the Supreme Courts or comparable final state appellate courts, permitting federal appellate courts to submit questions for resolution by such courts, involving state common law issues that remain "open." Such procedure cries out for decision in the appeal sub judice. The issue concerns, as the majority opinion so clearly demonstrates, whether this court should hold an entity liable for environmental degradation of land for commercial engrandizement after it obviously profited from such degradation, even though acquisition of land was not part of the product line purchase. This salutary certification procedure avoids the charge, admittedly valid, that the federal courts should avoid extending, gratuitously, the common law of the states within the ambit of their jurisdiction. City of Philadelphia v. Lead Industries Ass'n, 994 F.2d 112 (3d Cir.1993). 26 Here, we are called upon to decide what, under a new set of facts, the Supreme Court of New Jersey would decide in an issue it has never been called upon to consider. Our problem is complicated by New Jersey's failure to provide a certification procedure permitting it to have a needed and proper voice in the development of the common law of its state. 27 A. The Development of New Jersey's "Product Line" Doctrine 28 When the district court denied the plaintiffs' Motion for Summary Judgment, it relied on a string of cases defining the present "product line" theory of successor corporation liability for strict liability torts. From the trend formed by these opinions, the district court "predicted" how the New Jersey Supreme Court would rule under the present factual circumstances. The district court held that the product line doctrine of successor liability originally adopted in Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981), should be applied to include circumstances where a predecessor corporation improperly disposed of toxic manufacturing by-products on its factory site and then sold its entire product line patented process, good will, inventory, sales records and trade name, but not the factory site itself, to a successor corporation which continues the same manufacturing process at different site. Upon review of the line of cases dealing with the "product line" theory of successor corporate liability in products liability cases, I believe that the district court was correct in determining that the New Jersey Supreme Court would apply the strict liability doctrine to a strict liability environmental tort under these factual circumstances. B. Analysis 29 This is not a case where the corporate successor purchases some of the land that the predecessor contaminated and then continued a separate business on that land. Therefore, State Dept. of Environmental Protection v. Exxon Corp., 151 N.J.Super. 464, 376 A.2d 1339 (Ch.Div.1977), is distinguishable. This case is, however, more like Ramirez, supra, in that Welsbach's product line could be considered as all or substantially all of the manufacturing assets which were acquired by Kerr-McGee's predecessors. Thus, even if the assets were acquired exclusively for cash, and Kerr-McGee and its predecessors undertook essentially the same manufacturing operation as Welsbach, Kerr-McGee should be strictly liable for injuries caused by defects in units or by waste from production of those units of the same product line, even if previously manufactured and distributed by Welsbach. See Ramirez, 431 A.2d at 825. 30 The policies in Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977), and Ramirez, supra, apply similarly to the present case. First the plaintiff's potential remedy against Welsbach, the original manufacturer who caused the contamination, was destroyed by the Kerr-McGee's purchase of Welsbach's assets, trade name, good will and Welsbach's resulting dissolution. In other words, Kerr-McGee's acquisition destroyed whatever remedy plaintiff might have had against Welsbach. Second, the imposition of successor corporation liability upon Kerr-McGee is consistent with the public policy of spreading the risk to society at large for the costs of injuries from contamination due to a product line. This is because the successor corporation is in a better position to bear accident-avoidance costs. In this case, Kerr-McGee is in a better position to bear the costs because Welsbach transferred to Kerr-McGee the resource that had previously been available to Welsbach for meeting its responsibilities to persons injured by the product line it operated. Third, the imposition upon Kerr-McGee of responsibility to answer claims of liability for injuries allegedly caused by Welsbach's product line is justified as a burden necessarily attached to its enjoyment of Welsbach's trade name, good will and the continuation of an established manufacturing enterprise. For "[p]ublic policy requires that having received the substantial benefits of the continuing manufacturing enterprise, the successor corporation should also be made to bear the burden of the operating costs that other established business operations must ordinarily bear." Ramirez, 431 A.2d at 822. "[I]n light of the social policy underlying the law of products liability, the true worth of a predecessor corporation must reflect the potential liability that the shareholders have escaped through the sale of their corporation." Id. To avoid such liability Kerr-McGee could have "obtain[ed] products liability insurance for contingent liability claims, and it [could have entered] into full or partial indemnification or escrow agreements with the selling corporation." Id. 431 A.2d at 823; see La Pollo v. General Electric Co., 664 F.Supp. 178 (D.N.J.1987). 31 Kerr-McGee, like Bruno in Nieves v. Bruno Sherman Corp., 86 N.J. 361, 431 A.2d 826 (1981), was able "to gauge the risks of injury from defects in the [Welsbach] product line and to bear the accident-avoidance costs," since Kerr-McGee was intimately familiar with the production of gas mantles and the unavoidable thorium manufacturing waste. Id. 431 A.2d at 830. Evidence to support this conclusion is found by Lindsay's acquisition of all the assets and sources of information related to the Welsbach product line. The liability also should apply to Kerr-McGee because Kerr-McGee's "acquisition of the business assets and manufacturing operation of [Welsbach] contributed to the destruction of the plaintiff's remedies against the original manufacturer"--Welsbach. Id. 431 A.2d at 831. Finally, like State Dept. of Environmental Protection v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (1983), I believe that this Court should follow the New Jersey Supreme Court's application of strict liability in environmental torts, see Department of Transportation v. PSC Resources, Inc., 175 N.J.Super. 447, 419 A.2d 1151 (Law Div.1980), and apply product line strict liability to this environmental tort. 32 The district court in this case "predicted" that the New Jersey Supreme Court would apply the Ramirez successor corporation strict liability product line doctrine to strict liability environmental actions. Since this is an issue of first impression in New Jersey, the district court truly was "predicting" the result. Hence, if permitted to prognosticate, I too would hold that the New Jersey Supreme Court would apply the doctrine of strict liability to this environmental case and thus affirm the district court. However, while I believe that the decision to apply the doctrine to environmental cases should be left in the hands or the highest state court, there is no method to certify such a question to the court. C. The Restraint of City of Philadelphia 33 Despite my firm conviction that the district court should be affirmed, I am constrained by the philosophical tenet of this court in City of Philadelphia, supra, which I respect and adopt. We are not appointed to be activists but to interpret and apply the law as we see it. However, I believe that a dangerous precedent will be set if this court continues down the path which prohibits direct application of state doctrines. Primarily, the removal and jurisdictional statutes will be used as a sword to prevent final resolution of a state claim. For example, where a defendant realizes that the state's highest court has not ruled on their specific factual circumstance, but has developed a doctrine that might be adverse to that defendant, then the defendant will most assuredly remove the case to federal court knowing that, on appeal, the circuit court will grant summary judgment in their favor based on City of Philadelphia. The result will create an atmosphere where state rights will never be vindicated and cases will not proceed to their ultimate conclusion. 34 Accordingly and reluctantly, I join the majority remanding this matter to the district court for entry of a summary judgment in favor of Kerr-McGee. * Honorable C. Clyde Atkins, Senior United States District Judge for the Southern District of Florida, sitting by designation 1 Leo and Yoder also set forth theories of liability predicated on negligence and breach of warranty but we do not discuss them as we find no support for liability on either theory and they do not advance these theories on a basis distinct from the strict liability claim 2 The court also relied on Nieves v. Bruno Sherman Corp., 86 N.J. 361, 431 A.2d 826 (1981), decided on the same day as Ramirez. We, however, have no need to discuss Nieves at length as it merely held that an intermediate successor corporation could be liable under Ramirez even though there is a later viable successor corporation in existence. We note that actions similar to the one in this case are sometimes called "environmental torts" and sometimes called "toxic torts." As a matter of convenience, we use the latter term as the Supreme Court of New Jersey used that term in T & E Indus., Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249, 1251 (1991). Labels, however, are not significant, as we are concerned with the circumstances leading to the attempt to impose liability on Kerr-McGee rather than the characterization of the claim 3 A corporate successor can be liable for its predecessor's debts on theories other than that recognized in Ramirez. For example, liability can be imposed on the successor if it assumes the predecessor's liabilities or if the predecessor merges into the successor. Ramirez, 431 A.2d at 815. But we confine our opinion to the question of whether Kerr-McGee may be liable based on the product-line doctrine of successor liability as that is the only basis for liability that Leo and Yoder advance against Kerr-McGee 4 Actually, we are not certain that Leo and Yoder effectively do not have a remedy against Welsbach as they have named U.G.I., formerly known as United Gas Improvement Company, as a defendant on a theory that United Gas dominated Welsbach and therefore U.G.I. is "legally responsible for the obligations of Welsbach." However, Kerr-McGee has briefed the case on the assumption that Leo and Yoder do not have a remedy against Welsbach, and thus we decide the case on that basis 5 In FMC Corp. v. United States Dep't of Commerce, 29 F.3d 833, 838-39 (3d Cir.1994) (in banc), the government estimated the cost of environmental cleanup of the facility involved in that litigation at between $26,000,000 and $78,000,000 6 In Ramirez the Supreme Court of New Jersey acknowledged that the negative effect of successor liability in a product liability case on the sale of manufacturing assets was a "legitimate" concern. 431 A.2d at 822. Thus, we think it appropriate for us to consider that effect 7 Of course, the length of the period depends on the type of product involved. For example, machinery might last longer than automobiles 8 We recognize that T & E Indus. is not a personal injury case. Nevertheless we cite the case to demonstrate how it is possible that the consequences of chemical disposal may endure for a very long period

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-6684 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CAMILLE FORD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CR-94-163-18-2) Submitted: June 20, 2002 Decided: June 27, 2002 Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Camille Ford, Appellant Pro Se. Laura P. Tayman, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Camille Ford appeals the district court’s order denying her motion for modification of sentence. We have reviewed the record and the district court’s order and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See United States v. Ford, No. CR-94-163-18-2 (E.D. Va., filed Apr. 10, 2002; entered Apr. 11, 2002). 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 2 

537 U.S. 1053 ANDERSONv.GENERAL MOTORS CORP. No. 02-6618. Supreme Court of United States. December 2, 2002. 1 CERTIORARI TO THE SUPREME COURT OF DELEWARE. 2 Sup. Ct. Del. Certiorari denied. Reported below: 796 A. 2d 654.

169 Ga. App. 208 (1983) 312 S.E.2d 194 LOCKARD et al. v. DAVIS. 67265. Court of Appeals of Georgia. Decided December 5, 1983. Charles Van S. Mottola, for appellants. Steven E. Fanning, Ike A. Hudson, for appellee. BIRDSONG, Judge. Trespass — Permissive Use. In 1923 one Frank Arnold acquired a house and lot in Newnan. In 1926 he sold half of the lot to his father-in-law, who in turn built a house on that lot. Arnold owned a garage at the rear of the original lot. In order to accommodate both himself and his father-in-law, Arnold moved the garage to a point to the rear and between the two lots, with a drive running from the street to the garage. This drive was built partially upon both lots but with a greater portion upon the father's-in-law (Moncrief). In 1936, Moncrief sold the lot and house he owned to Davis. Davis and Arnold continued jointly to use and occupy the drive and garage. In about 1954, the garage was torn down and a parking pad was constructed with the cost being borne by both Arnold and Davis. In 1969, Arnold sold his lot and house to Mr. and Mrs. Lockard. The Lockards and Davis continued to use the drive up to the rear of the two houses. Though the evidence was in dispute, the jury was warranted in believing that from 1969 until 1982 the Lockards drove up to the rear of their house and either parked in their portion of the common drive or at the rear of their house. On occasion, the Lockards would have need or desire to park on the parking pad. During the 13-year period from 1969 until 1982, The Lockards would ask permission from Davis to use the parking pad to the rear of the lots (most of which lay on Davis' land). On each occasion, when asked, Davis would grant permission. Around 1982, the Lockards had their backyard landscaped and thereafter could not or did not continue to park in their backyard. At about that time, the Lockards informed Davis that they had an easement not only for the drive (an admitted fact) but also that they had through Arnold, their predecessor in title, an easement and unrestricted right to use the parking pad. Davis sued the Lockards. The trial court submitted the issues of easements, permissive use and abandonment to the jury. The jury returned a verdict in favor of Davis for nominal damages ($1) and punitive damages in the amount of $800. The Lockards bring this appeal urging three enumerations of error. Held: 1. In their first enumeration of error, the Lockards argue that the trial court erred in denying their motion for new trial on general grounds. As we view the evidence, there was substantial evidence that a joint or common easement was established, accepted and used in the entire drive and the garage by the original owners Arnold and Moncrief. When Moncrief sold his interest to Davis, that easement *209 continued in full and accepted use by both Arnold and Davis. However, there is evidence that after Arnold sold his property to the Lockards, the use of the easement by the Lockards was limited to the drive up to the back of the Lockards' house and did not extend to the unquestioned use of the rear of the drive to include the parking pad. The jury could have believed on the basis of the evidence submitted that after 1969 the Lockards used the parking pad only with the permission and consent of Davis. Thus for a period of thirteen years (1969-1982), the parties apparently acted upon the premise that Davis owned and controlled the rear of the drive and the parking pad. The trial court charged without objection that an easement can be abolished by prescription, and this within seven years if the holder of the easement is notified or believes that another has an adverse interest which continues for at least seven years. Under these facts and law, Davis for a period of thirteen years was asked by the Lockards for permission to use the parking pad. The seeking of permission would authorize a jury to conclude that the Lockards accepted Davis' sole proprietary control and the giving of permission by Davis an indication of the exercise of ownership rights. Even though the jury could have concluded that the Lockards originally believed they had an easement for the entire length of the drive, including the parking pad, the jury also could have concluded that because for a period in excess of seven years as to this private way the Lockards had not asserted any proprietary interest in the pad whereas Davis had acted as a sole and adverse owner, that the Lockards had abandoned any proprietary interest held in the rear part of the drive and the parking pad. S. A. Lynch Corp. v. Stone, 211 Ga. 516, 524 (87 SE2d 57) In passing on the general grounds offered in a motion for new trial, this court passes not on the weight but the sufficiency of the evidence. It is our duty to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proofs submitted to the jury. Bray v. Porterfield & Brown, 29 Ga. App. 135 (114 SE 86). See also Harris v. State, 236 Ga. 766, 767 (225 SE2d 263). There being some evidence to support the jury's verdict, we conclude the trial court did not err in denying the motion for new trial. 2. Appellants also argue that the trial court erred in charging on the theory of abandonment and sustaining the jury's verdict on that basis. However, the verdict necessarily was based upon abandonment of the disputed easement and the consequent permissive use of the parking pad by the Lockards. We have examined the charge of the jury and conclude that the court's charge on abandonment was complete, responsive to the evidence, and not misleading. *210 It is a well established rule that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. Camp v. Phillips, 42 Ga. 289. It is not even necessary there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. East Side Auto Parts v. Wilson, 146 Ga. App. 753 (2) (247 SE2d 571). We find no error in the denial of the motion for new trial insofar as it might have been based upon an abandonment of part of the Lockards' easement nor in the sufficiency or correctness of the court's charge on abandonment. Judgment affirmed. Shulman, C. J., and McMurray, P. J., concur.

195 P.3d 292 (2008) STATE v. CONDREN. No. 99852. Court of Appeals of Kansas. November 7, 2008. Decision without published opinion. Affirmed in part, dismissed in part.

J-A06026-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KYLE LEE WILSON : : Appellant : No. 491 MDA 2018 Appeal from the Judgment of Sentence January 23, 2018 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000795-2017 BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.* MEMORANDUM BY NICHOLS, J.: FILED JUNE 21, 2019 Appellant Kyle Lee Wilson appeals from the judgment of sentence imposed after he pled guilty to corruption of minors and unlawful contact with a minor, and nolo contendere to indecent assault.1 Appellant claims that the twenty-five-year registration requirement under the Sex Offender Registration and Notification Act (SORNA)2 constitutes an illegal sentence.3 We conclude ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 118 Pa.C.S. §§ 6301(a)(1)(ii) (third-degree felony); 6318(a)(1) (third- degree felony); and 3126(a)(1) (second-degree misdemeanor). 2 42 Pa.C.S. §§ 9799.10-9799.41 (subsequently amended Feb. 21, 2018). 3 In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the registration requirements of the former version of SORNA were punitive. See also Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (stating that SORNA’s registration requirements are to be considered part of a defendant’s sentence), appeal granted, 190 A.3d 581 (Pa. 2018). J-A06026-19 that this Court’s recent decision in Commonwealth v. Martin, 205 A.3d 1247 (Pa. Super. 2019), addresses all of Appellant’s arguments and affirm. The relevant facts giving rise to this appeal are well known to the parties, and we need not restate them here. Briefly, we note that on October 17, 2017, Appellant entered his plea based on criminal conduct that occurred between February 3, 2017 and February 5, 2017. On January 23, 2018, the trial court sentenced Appellant to an aggregate term of three and a half to seven years’ incarceration. Appellant was also designated a Tier II offender under SORNA for unlawful contact with a minor and was ordered to report and register for twenty-five years. On February 1, 2018, Appellant filed a timely motion to modify his sentence challenging his SORNA registration requirement. On February 22, 2018, the trial court denied Appellant’s motion. Appellant filed a timely notice of appeal on March 22, 2018. Both Appellant and the trial court subsequently complied with Pa.R.A.P. 1925. Appellant presents the following questions for our review: 1. Is [Appellant’s] sentence of twenty-five (25) years of punishment pursuant to SORNA illegal as SORNA is not a sentencing alternative authorized by Section 9721 of the Judicial Code and the trial court therefore lacked authority to impose such sentence? 2. Is [Appellant’s] sentence of twenty-five (25) years of punishment pursuant to SORNA illegal as the statutory maximum for a felony of the third degree as codified at Section 1103(2) of the Crimes Code is seven (7) years? 3. Is [Appellant’s] sentence of twenty-five (25) years of punishment pursuant to SORNA a violation of both the -2- J-A06026-19 Sixth and Fourteenth Amendments to the United States Constitution as the penalty imposed was increased beyond the prescribed statutory maximum based upon the General Assembly’s factual determination that [Appellant] “pose[s] a high risk of committing additional sexual offenses,” 42 Pa.C.S. § 9799.11(a)(4), a fact that was not submitted to the jury nor proven beyond a reasonable doubt as required by Apprendi v. New Jersey, 530 U.S. 466 (2000)? Appellant’s Brief at 6. In Martin, this Court recently concluded that a fifteen-year SORNA registration requirement did not constitute an illegal sentence. Martin, 205 A.3d at 1252. Relying on our prior decisions in Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. 2018),4 and Commonwealth v. Bricker, 198 A.3d 371 (Pa. Super. 2018), we explained that SORNA’s registration requirements are not governed by the statutory maximum sentences set forth in Chapter 11 of the Crimes Code. Martin, 205 A.3d at 1250. Furthermore, we held that ____________________________________________ 4 Although Appellant asserts that this Court’s holding in Strafford was incorrectly decided, we are bound by existing precedent until such time it is overturned. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014). Further, we note the Chester County Court of Common Pleas has held that SORNA was unconstitutional. On July 13, 2018, the Commonwealth filed an appeal with the Pennsylvania Supreme Court challenging the Chester County trial court’s decision. See Commonwealth v. Torsilieri, 37 MAP 2018 (Pa. 2018). On September 10, 2018, our Supreme Court noted probable jurisdiction, and the parties are currently briefing the matter. Because the Supreme Court has yet to issue a decision in Torsilieri, and because we are not bound by decisions from the Court of Common Pleas, we remain obligated to follow the existing, controlling case law. See Keller v. Mey, 67 A.3d 1, 5 n.6 (Pa. Super. 2013) (stating that the “Superior Court is not bound by decisions of the Court of Common Pleas and is free to reach contrary holdings” (citation omitted)); see also Reed, 107 A.3d at 143. -3- J-A06026-19 SORNA independently authorized the registration of sexual offenders, even though 42 Pa.C.S. § 9721 does not include registration as a sentencing alternative. Id. at 1251. The Martin Court also addressed an argument that the tier-based registration periods violated Apprendi. The Court reasoned that a conviction of a sexual offense determined the applicable registration period. Martin, 205 A.3d at 1252. Therefore, the imposition of a registration period did not require additional factual findings by a trial court. Id.; see Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa. Super. 2018) (directing “trial courts to apply only the applicable tier-based registration period, as those periods apply based on the conviction itself, and not due to any additional fact not found, under SORNA’s procedures, by the fact-finder”). Accordingly, even if the imposition of a registration period increased the range of punishment faced by a defendant, SORNA’s procedures did not violate Apprendi. Martin, 205 A.3d at 1252. Here, the trial court classified Appellant as a Tier II offender based on his conviction for unlawful contact with a minor. Pursuant to Martin, the court was authorized to impose a twenty-five year registration requirement as part of Appellant’s sentence. See Martin, 205 A.3d at 1251. In so doing, the court was not limited by the statutory maximum established for the underlying offense. See id. Lastly, Appellant’s registration requirement was properly based on his underlying conviction and not an additional fact not found by a fact-finder. See id. at 1252; Golson, 189 A.3d at 1003. -4- J-A06026-19 Commonwealth’s Application for Post-Submission Communication granted. Judgment of sentence affirmed. Judge Ott joins in the memorandum. Judge Pellegrini files a dissenting memorandum. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 06/21/2019 -5- 

FILED NOT FOR PUBLICATION JUN 17 2014 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BAHADUR SINGH; GURBUX KAUR, No. 09-70023 a.k.a. Gurbax Kaur, Agency Nos. A097-548-985 Petitioners, A097-548-986 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 12, 2014** Before: McKEOWN, WARDLAW, and M. SMITH, Circuit Judges. Bahadur Singh and Gurbux Kaur, natives and citizens of India, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s decision denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, applying the standards governing adverse credibility determinations created by the REAL ID Act, Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), and we deny the petition for review. Substantial evidence supports the agency’s adverse credibility determination based on the inconsistency between Singh’s testimony and his asylum application regarding the number of times he was arrested in India. See id. at 1047 (“inability to consistently describe the underlying events that gave rise to [petitioner’s] fear was an important factor that could be relied upon by the [agency] in making an adverse credibility determination”). The agency reasonably rejected Singh’s explanation for the inconsistency. See Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). Thus, in the absence of credible testimony, petitioners’ asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Petitioners’ CAT claim also fails because it is based on the same testimony found to be not credible, and petitioners do not point to any evidence that shows it is more likely than not that they would be tortured if returned to India. See id. at 1156-57. PETITION FOR REVIEW DENIED. 2 09-70023 

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 08-30385 Plaintiff-Appellee, D.C. No. v.  1:07-CR-30036- JUAN PINEDA-MORENO, PA-1 Defendant-Appellant.  OPINION On Remand from the United States Supreme Court Argued and Submitted May 31, 2012—Portland, Oregon Filed August 6, 2012 Before: Diarmuid F. O’Scannlain and N. Randy Smith, Circuit Judges, and Charles R. Wolle, District Judge.* Opinion by Judge O’Scannlain *The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa, sitting by designation. 8701  UNITED STATES v. PINEDA-MORENO 8703 COUNSEL Harrison Latto, Portland, Oregon, argued the cause and filed the supplemental brief for the defendant-appellant. Kelly Zusman, Appellate Chief, District of Oregon, Eugene, Oregon, argued the cause and filed the supplemental brief for the plaintiff-appellee. With her on the brief were S. Amanda Marshall, United States Attorney, District of Oregon, Eugene, Oregon, and Amy E. Potter, Assistant United States Attorney, Eugene, Oregon. OPINION O’SCANNLAIN, Circuit Judge: In this matter which arose prior to the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012), we must decide whether to apply the exclusionary rule where law enforcement agents attached mobile tracking devices to the 8704 UNITED STATES v. PINEDA-MORENO underside of a defendant’s car and used those devices to track the car’s movements. I In 2007 the Drug Enforcement Administration (“DEA”) came to suspect that Juan Pineda-Moreno was growing mari- juana in the back country of southern Oregon. That suspicion arose on May 28, when a DEA agent saw Pineda-Moreno and some other men pay cash for a large amount of a fertilizer favored by local marijuana growers. The men loaded the fer- tilizer into a Jeep Grand Cherokee that belonged to Pineda- Moreno. The DEA began to investigate the men and to monitor the travels they made in Pineda-Moreno’s Jeep (which had Cali- fornia license plates) and in a second Jeep with Oregon license plates. The DEA’s surveillance disclosed that the men bought large quantities of food in the first half of June, that they bought deer repellent and a portable hand sprayer that same month, and that they visited an irrigation supply store in late June. The DEA eventually tailed the men to a single-wide mobile home in Phoenix, Oregon. The agents observed that the mobile home did not appear to have a deer problem or an irrigation system. That information supported the agents’ sus- picion that the men were involved in a remote grow operation: Irrigation equipment would facilitate such an operation, as would a spray designed to keep deer away from crops. The large food buys were also consistent with the needs of a remote operation. The home was, moreover, located in a mobile home park that, according to the DEA, was known for drug activity. Suspicion mounted when the agents tailed the Oregon- plated Jeep on June 29. During that trip, the Jeep began trav- eling “in a very strange manner” as the driver seemed to be looking around for law enforcement. At one point, a man in  UNITED STATES v. PINEDA-MORENO 8705 the Jeep seemed to write down the license plate numbers of some of the surveillance vehicles. Until the end of June, the DEA had tracked the suspects’ movements through visual surveillance and witness reports. That changed in July. On seven occasions from then until September, the agents attached mobile tracking devices to the underside of Pineda-Moreno’s Jeep. On four of those occa- sions, the Jeep was on the public street in front of Pineda- Moreno’s mobile home; once it was in a public parking lot; and twice it was on Pineda-Moreno’s driveway in front of the carport. The driveway—which was a few feet from the south side of Pineda-Moreno’s home—had no fence, gate, or “No Trespassing” signs on or near it. Agents used the devices to monitor the movements of Pineda-Moreno’s Jeep. The devices allowed the agents to pin- point the Jeep’s location using cellular towers or satellites; one of the devices also logged data that could later be down- loaded to detail where the Jeep had traveled. By monitoring Pineda-Moreno’s Jeep the agents learned that it traveled to two suspected marijuana grow sites on July 6, August 14, August 16, and September 12. The devices used during those grow-site visits had been attached to the Jeep when it was either on a public street or in a public parking lot. Based on the information from the tracking devices and from their earlier surveillance, the DEA and other law enforcement agents stopped Pineda-Moreno’s Jeep on Sep- tember 12. The three men inside were taken into custody for immigration violations. Pineda-Moreno then consented to a search of his mobile home. That search uncovered two large garbage bags that contained marijuana. II In November 2007 Pineda-Moreno was indicted in the Dis- trict of Oregon for conspiring to manufacture marijuana and 8706 UNITED STATES v. PINEDA-MORENO for manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846. He moved to sup- press the evidence derived from using the mobile tracking devices (which had helped to establish cause for the Septem- ber 12 stop and led to Pineda-Moreno consenting to a search of his home). He argued that the agents violated the Fourth Amendment’s prohibition against “unreasonable searches and seizures” by attaching the devices to his car and by trespass- ing on his driveway to do so, all without a warrant. The dis- trict court denied the motion. Pineda-Moreno then pleaded guilty to the conspiracy charge, but reserved the right to appeal the denial of his motion to suppress. The district court accepted the plea, dis- missed the manufacturing count of the indictment, and sen- tenced Pineda-Moreno to 51 months’ imprisonment and five years’ supervised release. We affirmed the denial of Pineda-Moreno’s motion to sup- press, concluding that the installation and use of the tracking devices was not a Fourth Amendment search. 591 F.3d 1212, 1214-17 (9th Cir. 2010). Pineda-Moreno thereafter filed a petition for certiorari in the Supreme Court of the United States. See S. Ct. No. 10-7515. Subsequent to our decision, the U.S. Supreme Court decided Davis v. United States, 131 S. Ct. 2419 (2011), and United States v. Jones, 132 S. Ct. 945 (2012). Davis holds that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” 131 S. Ct. at 2423-24. Jones holds that the govern- ment’s installation of a Global Positioning System (GPS) tracking device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search” under the Fourth Amendment. 132 S. Ct. at 949. After issuing the latter decision, the Supreme Court granted Pineda-Moreno’s certiorari petition, vacated our judgment in  UNITED STATES v. PINEDA-MORENO 8707 the case, and remanded to our court so that we could consider it further in light of Jones. 132 S. Ct. 1533 (2012). III On remand Pineda-Moreno once again asks us to suppress the evidence derived from the DEA’s mobile tracking devices. Invoking Davis, the United States contends that even if its agents’ tracking-device conduct is unconstitutional under Jones, suppression is unwarranted because the agents acted in objectively reasonable reliance on binding precedent when they attached and used the tracking devices. [1] Jones has made clear that the agents conducted Fourth Amendment searches when they attached tracking devices to Pineda-Moreno’s Jeep and used the devices to monitor the Jeep’s movements. Indeed, for purposes of this remand we will assume, without deciding, that those warrantless searches would be “unreasonable” under the Fourth Amendment after Jones. But Jones had not been decided when those searches occurred. And when the agents attached and used the mobile tracking devices that yielded the critical evidence, they did so in objectively reasonable reliance on then-binding precedent. In 2007, circuit precedent held that placing an electronic tracking device on the undercarriage of a car was neither a search nor a seizure under the Fourth Amendment. United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999). Cir- cuit law also held that the government does not violate the Fourth Amendment when it uses an electronic tracking device to monitor the movements of a car along public roads. United States v. Hufford, 539 F.2d 32, 34 (9th Cir. 1976); see United States v. Miroyan, 577 F.2d 489, 492 (9th Cir. 1978) (stating that “the monitorial use of [an electronic] tracking device can- not constitute a search” under the Fourth Amendment) (emphasis omitted). 8708 UNITED STATES v. PINEDA-MORENO Our circuit precedent may also have permitted the agents to walk onto Pineda-Moreno’s driveway to attach the devices to his Jeep. As of 2007 we had held that, “to establish a reason- able expectation of privacy in [one’s] driveway”—and thus to obtain Fourth Amendment protection for it—one “must sup- port that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.” Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir. 1991); see also United States v. Magana, 512 F.2d 1169, 1171 (9th Cir. 1975) (“A driveway is only a semiprivate area.”). Pineda- Moreno’s driveway was visible from the street, had no fence or gate, and did not have “No Trespassing” signs on or near it. But we need not resolve whether the agents were autho- rized in 2007 to walk onto Pineda-Moreno’s driveway because, even without the evidence obtained from the driveway-attached tracking devices, the government had amassed enough other evidence, in good faith reliance on binding precedent, to justify the September 12 stop of Pineda- Moreno’s Jeep. The tracking-device attachments made in pub- lic areas showed four trips to suspected grow sites. That infor- mation supplemented the evidence obtained before the devices were used: the fertilizer buy, the purchase of deer spray and a hand sprayer, the visit to the irrigation supply store, the evasive driving, the large food buys, and the obser- vations that the mobile home had no irrigation system or deer problems. The driveway attachments did disclose that the Jeep visited a Wal-Mart and a Home Depot on August 30, but that information was cumulative of other evidence that had been obtained in good faith. [2] In short, the agents’ conduct in attaching the tracking devices in public areas and monitoring them was authorized by then-binding circuit precedent. Those attachments yielded the critical information that justified stopping Pineda-Moreno. Whatever the effect of Jones, then, the critical evidence here  UNITED STATES v. PINEDA-MORENO 8709 is not subject to the exclusionary rule. See Davis, 131 S. Ct. at 2423-24.1 IV [3] We recognize that Jones at least partially overrules McIver, Hufford, and Miroyan, and may also affect the vital- ity of Maisano and Magana. We can address the effect of Jones more fully in future cases. For today, it is enough to conclude that suppression is not warranted here because the agents objectively relied on then-existing binding precedent when they approached Pineda-Moreno’s Jeep in public areas, attached tracking devices to it, and used those devices to mon- itor the Jeep’s movements. AFFIRMED. 1 In light of our conclusion, we deny Pineda-Moreno’s pending Motion for Leave to Submit Supplemental Briefs. 

[Cite as State v. Hargraves, 2020-Ohio-3569.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. CT2019-0045 : RICHARD HARGRAVES : : : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-20 JUDGMENT: AFFIRMED DATE OF JUDGMENT ENTRY: June 30, 2020 APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: D. MICHAEL HADDOX JAMES A. ANZELMO MUSKINGUM CO. PROSECUTOR ANZELMO LAW TAYLOR P. BENNINGTON 446 Howland Drive 27 North Fifth St., P.O. Box 189 Gahanna, OH 43230 Zanesville, OH 43701 Muskingum County, Case No. CT2019-0045 2 Delaney, J. {¶1} Appellant Richard Hargraves appeals from the April 24, 2019 Entry of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶1} In October 2018, appellant was convicted of domestic violence against his mother in Zanesville Municipal Court Case Number CRB 1801372. Appellant stipulated to the prior conviction at trial. {¶2} The instant case involves appellant, his sister Kelly Hargraves (“Kelly”), his minor niece “Jane Doe,” and his father, Richard Hargraves, Jr. (“Rick”). Doe was age 3 at the time of these events. In January 2019, appellant, Kelly, and Jane Doe lived together in their childhood home on Cliffwood Avenue in Zanesville. Appellant’s mother had moved out after the October incident. Kelly frequently complained that appellant had an alcohol problem and was belligerent when drunk. The siblings’ parents, although divorced, would intervene and offer Kelly and Jane Doe different places to stay when appellant caused problems. {¶3} On January 8, 2019, Kelly and Jane Doe spent the day together in Columbus, arriving home around 10:00 p.m. Kelly noted upon entering the house that appellant was “drinking and partying” alone, talking loudly to himself. Kelly asked appellant not to bother her and Doe because they were tired and wanted to go to bed. In the three-bedroom home, Kelly and Doe each had a bedroom to themselves. The third bedroom was used as a walk-in closet. Appellant slept on the couch in the living room. This evening, Kelly went into Doe’s room and laid down with her. Muskingum County, Case No. CT2019-0045 3 {¶4} Kelly did not fall asleep because appellant continued to be loud and she heard the family’s dogs fighting in the living room. Usually the dogs were kept outside. Appellant let the dogs into the house and walked back and forth throughout the house, still talking loudly to himself. He threw bottle caps into the bedroom where Kelly and Doe were trying to sleep. He stood at the bedroom door, muttering and blowing cigarette smoke into the room. He threw chicken bones onto the bedroom floor to encourage the dogs to come into the room and disturb Kelly and Doe. Kelly laid with her eyes closed, ignoring appellant and telling him to leave them alone. Appellant repeatedly said “Fuck you, fuck your baby, I’m going to get rid of you.” {¶5} Kelly called her father Rick and told him appellant was drunk, belligerent, and bothering her and the baby. Rick said she and the baby were welcome to come to his house, but Kelly declined because it was now around 5:00 a.m. and she just wanted to sleep. Kelly heard the dogs again in the living room and got up to take one dog outside and put the other in the basement. As she did this, appellant stood in the bedroom doorway repeating “fuck you and fuck your baby.” Appellant then pushed over a shelf onto the bed where the baby lay, and items fell off the shelf onto the bed and floor. Jane Doe “yelped” but was not injured. {¶6} Kelly called Rick again and told him she intended to call police. She then called 911. Appellant overheard the calls and was enraged, calling Kelly a “snitch.” Appellant and Kelly fought in the living room. Appellant pushed Kelly and swung at her with his left hand, but she blocked the strike. He hit her on the arm with his fist as their father came into the house. Muskingum County, Case No. CT2019-0045 4 {¶7} Rick grabbed appellant in a “bear hug” to attempt to stop the fight. At trial, Rick was reluctant to testify and minimized the events. Kelly testified appellant jumped on the couch and hit their father; Rick testified that he only intervened in the fight and was not struck by appellant. Rick had visible injuries to his face which Kelly testified were caused by appellant; Rick testified he was scratched by someone’s nail but asserted appellant did not cause his injuries. {¶8} As Zanesville police arrived, Kelly stood on the sidewalk, Rick on the porch, and appellant in the doorway of the residence. The police asked appellant to cooperate; when it appeared he wouldn’t, he was taken to the ground and cuffed. Kelly went to the Zanesville Police Department several hours later to complete a Domestic Violence Complaint Form. {¶9} Police officers who responded to the scene testified appellant was highly intoxicated and Kelly was very upset. She told them her brother knocked over a shelf and fought with their father. Police observed and photographed “fresh injuries” on Rick’s face. Appellant refused to voluntarily come away from the doorway of the residence and police were afraid he would barricade himself inside, so they took him to the ground and cuffed him. Appellant was so intoxicated he had to be physically helped to the police car; he was argumentative and it was difficult to understand his slurred speech. At the scene, Kelly provided a verbal statement that he stood outside her bedroom throwing items in, then came inside the room to pull down a shelf which fell onto Jane Doe. Police observed visible injury to Rick but not to Kelly or Jane Doe. They photographed the victims and the interior of the residence, including the shelf and disarray in the bedroom. Muskingum County, Case No. CT2019-0045 5 {¶10} Appellant was charged by indictment with three counts of domestic violence pursuant to R.C. 2919.25(A), all felonies of the fourth degree. Each count of the indictment notes appellant has a prior conviction of domestic violence in October 2018 and notes the victim of the pertinent offense. Count I relates to Jane Doe, Count II relates to Kelly, and Count III relates to Rick. Appellant entered pleas of not guilty. {¶11} Appellant orally requested new counsel and the trial court heard the matter on March 4, 2019. On March 5, 2019, the trial court overruled appellant’s oral motion and ruled that defense trial counsel would remain in place until further order of the court. Co- counsel was appointed on March 14, 2019. {¶12} The matter proceeded to trial by jury. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) upon the close of appellee’s evidence and at the close of all of the evidence; the motions were overruled. Appellant was found guilty upon Counts I and II, and not guilty upon Count III. Sentencing was deferred pending a pre- sentence investigation. {¶13} A sentencing hearing was held on April 22, 2019 and appellant was sentenced to two consecutive prison terms of 18 months each, for a total aggregate sentence of 36 months. {¶14} Appellant now appeals from the judgment entries of conviction and sentence. {¶15} Appellant raises five assignments of error: Muskingum County, Case No. CT2019-0045 6 ASSIGNMENTS OF ERROR {¶16} “I. HARGRAVES’ CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.” {¶17} “II. HARGRAVES’ CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATE CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.” {¶18} “III. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE PRIOR BAD ACTS OF HARGRAVES, IN VIOLATION OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION.” {¶19} “IV. THE TRIAL COURT ERRED BY BARRING HARGRAVES FROM INTRODUCING EVIDENCE MATERIAL TO HIS DEFENSE, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.” {¶20} “V. THE TRIAL COURT UNLAWFULLY ORDERED HARGRAVES TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE Muskingum County, Case No. CT2019-0045 7 PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.” ANALYSIS I., II. {¶21} Appellant’s first two assignments of error are related and will be considered together. Appellant argues his domestic violence convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. We disagree. {¶22} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, “An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” {¶23} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly Muskingum County, Case No. CT2019-0045 8 lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “exceptional case in which the evidence weighs heavily against the conviction.” Id. {¶24} Appellant was found guilty upon two counts of domestic violence pursuant to R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” Appellant’s conviction upon Count I relates to his offense against his niece, Jane Doe, and his conviction upon Count II relates to his offense against his sister, Kelly. Appellant was found not guilty upon Count III, domestic violence against his father, Rick. {¶25} Appellant argues the record is devoid of evidence that he caused or attempted to cause physical harm to Jane Doe, the minor child, acknowledging that “[a]t most, [appellant] knocked a shelf down on a bed where [Jane Doe] was.” Brief, 5. The record includes appellee’s Exhibits 5 and 6, photos of the bedroom including the toppled piece of furniture described by witnesses as a “shelf” or a “stand.” The item is a unit of three shelves, fallen across the bed, with numerous items scattered underneath. The uncontroverted evidence established Jane Doe was laying in the bed when appellant pushed the unit over as he repeated “fuck you and fuck your baby.” It is readily apparent from the photos that if the unit had fallen upon a 3-year-old on the bed, she could have been seriously injured. The jury could reasonably find that in pulling over the shelf, appellant attempted to cause physical harm to Jane Doe. Muskingum County, Case No. CT2019-0045 9 {¶26} Appellant further argues there is no evidence he caused or attempted to cause physical harm to Kelly. Kelly testified that appellant attempted to strike her twice, once making contact with his fist against her arm. The weight of the evidence and the credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, 767 N.E.2d 216, ¶ 79. Moreover, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Cunningham, 105 Ohio St.3d 197, 2004–Ohio–7007, 824 N.E.2d 504, at ¶ 51–57. Here, appellee's evidence established appellant attempted to strike Kelly, and succeeded. See, State v. Mowls, 5th Dist. Stark No. 2017CA00019, 2017-Ohio-8712, ¶ 42. {¶27} Appellant further points to minor discrepancies in Kelly’s statements in the 911 call, to police at the scene, in her Domestic Violence Victim Statement, and at trial. As we observed in State v. Frank, 5th Dist. No. CT2017-0102, 2018-Ohio-5148, 127 N.E.3d 363, at ¶ 47, any inconsistencies in the witnesses' accounts were for the trial court to resolve. Id., citing State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, 2017 WL 2815197, ¶ 49. Inconsistencies in the testimony do not establish appellant's conviction is against the manifest weight of the evidence. Dotson, supra, 2017-Ohio- 5565, at ¶ 50. “The weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other.” State v. Brindley, 10th Dist. Franklin No. 01AP-926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16. We defer to the trier of fact as to the weight to be given the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one of the syllabus. When assessing witness credibility, “[t]he choice Muskingum County, Case No. CT2019-0045 10 between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). “Indeed, the factfinder is free to believe all, part, or none of the testimony of each witness appearing before it.” State v. Pizzulo, 11th Dist. Trumbull No. 2009-T-0105, 2010-Ohio-2048, 2010 WL 1839440, ¶ 11. Furthermore, if the evidence is susceptible to more than one interpretation, a reviewing court must interpret it in a manner consistent with the verdict. Id. {¶28} Upon our review of the entire record, we conclude appellant’s domestic violence convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. Appellant's first and second assignments of error are overruled. III. {¶29} In his third assignment of error, appellant argues the trial court erred in admitting other-acts evidence of his assaults upon two inmates at the jail. We disagree. {¶30} Ptl. William Baron was appellee’s first trial witness. Baron testified that due to appellant’s intoxication and argumentativeness, he was arrested and taken to jail within minutes of the arrival of police to the scene. The prosecutor then asked, “What happened at the jail,” and defense trial counsel objected. The trial court overruled the objection and Baron testified appellant was booked into jail. The prosecutor continued, “Then what?” and defense trial counsel objected again. The objection was overruled. Baron testified appellant was placed in a holding cell with two other inmates who were asleep due to the early-morning hour. Appellant entered the cell and began punching the two inmates with his fists almost immediately, unprovoked. Muskingum County, Case No. CT2019-0045 11 {¶31} Appellant argues admission of this evidence violates Evid.R. 404(B), which states, “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” {¶32} As with any other type of evidence, admission of “other acts” testimony must not only meet the prerequisites of Evid.R. 404(B), but it must also meet the prerequisites of Evid.R. 403(A) which requires the exclusion of relevant evidence if its “probative value is substantially outweighed by the danger of unfair prejudice.” {¶33} “Trial court decisions regarding the admissibility of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion of the trial court. Appeals of such decisions are considered by an appellate court under an abuse-of-discretion standard of review.” State v. Morris, 132 Ohio St.3d 337, 2012- Ohio-2407, 972 N.E.2d 528, syllabus. {¶34} The Ohio Supreme Court established a “three-step analysis” for trial courts considering the admission of other-acts evidence under Evidence Rule 404(B): The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented Muskingum County, Case No. CT2019-0045 12 for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R 403. State v. Williams, 2012-Ohio-5695, ¶ 19-20, 134 Ohio St.3d 521, 983 N.E.2d 1278. {¶35} In the instant case, appellant argues evidence of his attack on inmates at the jail is irrelevant to the domestic violence offenses and tended to show he acted in conformity with a propensity to commit violence. Appellee argued at trial, and responds on appeal, that the evidence was relevant to appellant’s state of mind in the immediate aftermath of the domestic violence incident, demonstrating appellant was intoxicated and combative. While the jail evidence was superfluous in light of the witnesses’ consistent testimony about appellant’s level of intoxication, it rebutted appellant’s argument at trial that Kelly exaggerated the extent of appellant’s actions and belied appellant’s claims that he was merely “causing trouble” and a nuisance. {¶36} We further conclude that even if the challenged testimony about events at the jail violated Evid.R. 404(B), the error was harmless. The Supreme Court has stated that “the real issue when Evid.R. 404(B) evidence is improperly admitted at trial is whether a defendant has suffered any prejudice as a result. If not, the error may be disregarded as harmless error. And while courts may determine prejudice in a number of ways and use language that may differ, they focus on both the impact that the offending evidence had on the verdict and the strength of the remaining evidence.” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 25. In this case, appellee’s evidence of Muskingum County, Case No. CT2019-0045 13 the domestic violence was overwhelming, including testimony of Kelly, her father, and responding officers, and photos of the damage and injuries inflicted by appellant. We find that any unduly prejudicial effect from the challenged testimony “would have been marginal” in light of the strength of appellee’s evidence. See, State v. Barnett, 10th Dist. Franklin No. 19AP-365, 2020-Ohio-1468, ¶ 42. {¶37} The trial court did not err in overruling appellant’s objection to the jail evidence. Appellant’s third assignment of error is overruled. IV. {¶38} In his fourth assignment of error, appellant argues the trial court erred in disallowing evidence pertinent to his defense. We disagree. {¶39} Decisions regarding the admissibility of evidence at trial are within the broad discretion of the trial court and will be upheld absent an abuse of discretion and material prejudice. State v. Lang, 129 Ohio St.3d 512, 2011–Ohio–4215, 954 N.E.2d 596, ¶ 86. {¶40} At trial, appellant sought to admit Defendant’s Exhibit E, the Ohio Uniform Incident Report (police report) about the incident. The exhibit does not contain any written statements. We have reviewed the exhibit and it is cursory at best. The report identifies the time, date, location, and persons involved, and the narrative simply states: “On the above, date, time and location a known person did: cause or attempt to cause physical harm to a family or household member. Resist the lawful arrest of his person.” (Sic throughout). In the report’s description of Kelly, the box labeled “If injured; state injuries,” indicates “none.” Appellant sought to admit Exhibit E as evidence of Kelly’s alleged inconsistent statements, apparently that she did not tell police she was injured by appellant. The trial court declined to admit the report because there was no evidence Muskingum County, Case No. CT2019-0045 14 Kelly reviewed the police report, to what extent she contributed to it, or that she ever saw it. T. 352-353. {¶41} On appeal, appellant argues the trial court’s decision interfered with his right to present a complete defense because Exhibit E “denotes that Kelly indicated no injuries from the incident with [appellant].” We agree with the trial court’s decision and find no indication in the record that Kelly wrote or reviewed the material contained in Defense Exhibit E, thus the exhibit is not properly evidence of any “inconsistent statement.” {¶42} Appellant’s fourth assignment of error is overruled. V. {¶43} In his fifth assignment of error, appellant argues the trial court erred in imposing consecutive sentences. We disagree. {¶44} Appellant was convicted upon two counts of domestic violence in Counts I and II, both felonies of the fourth degree. The trial court imposed consecutive prison terms of 18 months each. “[A]ppellate courts must adhere to the plain language of R.C. 2953.08(G)(2).” State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 7. An appellate court may only modify or vacate a sentence if it finds by clear and convincing evidence that the record does not support the sentencing court's decision. Id. at ¶ 23. Clear and convincing evidence is that “‘which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’” State v. Silknitter, 3rd Dist. Union No. 14–16–07, 2017–Ohio–327, ¶ 7, citing Marcum, supra. Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but does not require the Muskingum County, Case No. CT2019-0045 15 certainty of “beyond a reasonable doubt.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶45} In the instant case, appellant argues the trial court erred in imposing consecutive terms because the prison terms are disproportionate to the harm suffered by Kelly and Jane Doe. Appellant implicitly argues the victims were not injured, therefore he should not serve consecutive terms. We note appellant does not argue that the trial court failed to make the proper findings; instead, he disagrees with the weight afforded to those findings. “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659, 2014-Ohio- 3177, syllabus. {¶46} In Ohio, there is a statutory presumption in favor of concurrent sentences for most felony offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences and provides: If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and Muskingum County, Case No. CT2019-0045 16 to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense. (b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. {¶47} In this case, the record does establish, and appellant admits, that the trial court made the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences. {¶48} We also note that in the sentencing entry, the trial court found that consecutive sentences are necessary to protect the public from future crime or to punish the offender; are not disproportionate to appellant's conduct and to the danger he poses to the public; and at least two of the multiple offenses were committed as part of Muskingum County, Case No. CT2019-0045 17 one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct would adequately reflect the seriousness of appellant's conduct. {¶49} Upon imposing the consecutive terms, the trial court noted appellant has a prior felony conviction for which he served a prison term. The instant offenses occurred in January 2019, after appellant had very recently been convicted of domestic violence in October 2018 against his mother. The instant offenses were committed against appellant’s sister and his three-year-old niece. In the October case, appellant was put on probation but violated almost immediately and was sent to jail for 50 days. Appellant also had a lengthy history of misdemeanor convictions including resisting arrest, assault, and criminal damaging. {¶50} Based on our review, we find that the record demonstrates that the trial court made the requisite findings. The sentence was within the statutory range. Moreover, the record reveals that the trial court properly considered the statutory purposes and factors of felony sentencing, and the decision is supported by clear and convincing evidence. Accordingly, we find that the trial court did not err in the imposition of appellant's prison sentence, including imposition of consecutive terms, and did not fail to consider the statutory factors. {¶51} Appellant’s fifth assignment of error is overruled. Muskingum County, Case No. CT2019-0045 18 CONCLUSION {¶52} Appellant’s five assignments of error are overruled and the judgment of the Muskingum County Court of Common Pleas is affirmed. By: Delaney, J., Hoffman, P.J. and Gwin, J., concur. Muskingum County, Case No. CT2019-0045 19 Hoffman, P.J., concurring {¶53} I concur in the majority’s analysis and disposition of Appellant’s first, second, fourth, and fifth assignments of error. I further concur in the majority’s disposition of Appellant’s third assignment of error, but only partially concur with its analysis. {¶54} The majority apparently concludes the other acts evidence regarding Appellant’s assault of inmates at the jail was permissible to rebut Appellant’s argument Kelly exaggerated the extent of Appellant’s actions and his claim he was merely “causing trouble” and a nuisance. (See Maj. Op. at ¶35). Unlike the majority, I find this was impermissible other acts evidence. {¶55} However, I agree with the majority admission of the testimony about events at the jail constituted harmless error. Accordingly, I concur in its decision to overrule Appellant’s third assignment of error. 

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Case: 16-10206 Date Filed: 12/14/2016 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-10206 Non-Argument Calendar ________________________ D.C. Docket No. 1:15-cv-01224-RWS CAREMINDERS HOME CARE, INC., Plaintiff-Counter Defendant-Appellee, Versus LORI KIANKA, COMPASSIONATE CARE, LLC, Defendants-Counter Claimants-Appellants. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (December 14, 2016) Before HULL, MARCUS, and ANDERSON, Circuit Judges. PER CURIAM:  Case: 16-10206 Date Filed: 12/14/2016 Page: 2 of 8 Defendant-appellants Lori Kianka and Compassionate Care, LLC (collectively “Compassionate Care”) appeal a decision of the district court to confirm an arbitration award under the Federal Arbitration Act in favor of plaintiff- appellee CareMinders Home Care, Inc. (“CareMinders”). Compassionate Care, formerly a franchisee of CareMinders, instituted this action in October of 2013 by filing a demand for arbitration pursuant to their franchise agreement claiming breach of contract and fraud related to the business relationship. CareMinders asserted counterclaims and—after three separate continuances at Compassionate Care’s request—an arbitrator issued an award for CareMinders of $232,789.30 and granted injunctive relief enforcing non-compete and non-solicitation clauses in the franchise agreements. The arbitrator denied each of Compassionate Care’s claims over the course of his seventeen-page opinion. Immediately thereafter, CareMinders filed a petition to confirm the arbitration award in the Northern District of Georgia on April 17, 2015. Compassionate Care responded by filing an “Answer, Defenses, & Counterclaim to Modify and/or Vacate Arbitration Award” on May 15, 2015. In that filing Compassionate Care broadly alleged a basis to vacate or modify the arbitration award grounded in the arbitrator’s denial of a fourth continuance, denial of a motion to compel discovery, perceived bias and ex parte communications, and ultimate decision to award attorney’s fees. Compassionate Care assured the court 2  Case: 16-10206 Date Filed: 12/14/2016 Page: 3 of 8 that these broad allegations would “be more fully outlined in a motion under 9 U.S.C. § 12.” This statement was in line with their position—noted in a prior filing with the district court—that they intended to “serve notice of a motion to vacate an award [under] 9 U.S.C. §§ 10 & 12.” However, they never filed such a motion and, on July 28, 2015, CareMinders filed a supplemental brief arguing that the failure to do so within three months, as required by the FAA, waived the right to vacate the award or raise any defenses to its enforcement. On September 24, 2015, the district court entered an order confirming the arbitration award and dismissing Compassionate Care’s counterclaims. Compassionate Care filed a motion for reconsideration that was ultimately denied on December 16, 2015. The court expressly found that Compassionate Care, by failing to file a motion to vacate within three months, had waived their right to review of the award and that, in any event, they had failed to carry their burden of overcoming the presumption under the FAA that awards will be confirmed. Accordingly, the court denied the motion to reconsider and awarded fees and costs for post-judgment motions to CareMinders. This appeal followed. Orders confirming arbitration awards “are to be reviewed for clear error with respect to factual findings and de novo with respect to the district court’s legal conclusions.” Gianelli Money Purchase Plan & Trust v. ADM Inv’r Servs., Inc., 146 F.3d 1309, 1311 (11th Cir. 1998). The FAA “imposes a heavy presumption in 3  Case: 16-10206 Date Filed: 12/14/2016 Page: 4 of 8 favor of confirming arbitration awards” and, accordingly “a court’s confirmation of an arbitration award is usually routine or summary.” Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1288 (11th Cir. 2002). The party requesting vacatur bears the burden of proving one of the four limited statutory bases 1 for overturning an award as set forth in the FAA. Id. This Court has long held that the failure of a party “to move to vacate an arbitral award within the three-month limitations period prescribed by section 12 of the [FAA] bars [it] from raising the alleged invalidity of the award as a defense in opposition to a motion brought under section 9 of the USAA to confirm the award.” Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851, 854 (11th Cir. 1989). Moreover, litigants may not raise new arguments in a motion to reconsider brought under either the Northern District’s local rule 7.2(E) or under Federal Rule 59(e). See Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258–59 (N.D. Ga. 2003) (“Reconsideration [under Local Rule 7.2(E)] is only ‘absolutely necessary’ where there is: (1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact.”); O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992) 1 Awards will only be vacated if “(1) the award was procured by corruption, fraud, or undue means; (2) there was evident partiality or corruption in the arbitrators; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing when there was good cause to postpone, or in refusing to hear pertinent and material evidence, or were guilty of any other misbehavior which may have prejudiced any party; or (4) the arbitrators exceeded their powers so much so that a mutual, final, and definite award upon the subject matter submitted was not made.” Riccard, 307 F.3d at 1288 (citing 9 U.S.C. § 10(a)). 4  Case: 16-10206 Date Filed: 12/14/2016 Page: 5 of 8 (“Motions to amend [under Rule 59(e)] should not be used to raise arguments which could, and should, have been made before the judgment was issued.”). Finally, in order to establish mistake, inadvertence, or excusable neglect under Rule 60(b)(1), “a defaulting party must show that: (1) it had a meritorious defense that might have affected the outcome; (2) granting the motion would not result in prejudice to the non-defaulting party; and (3) a good reason existed for failing to reply to the complaint.” In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1296 (11th Cir. 2003). As an initial matter, we are persuaded that the district court was obligated to grant CareMinders’ petition to confirm the arbitration award based on Compassionate Care’s failure to file a motion to vacate within 90 days. On appeal, Compassionate Care argues that the district court should have considered its Answer, Defenses, and Counterclaim to Modify and/or Vacate the Arbitration Award as a motion to vacate under 9 U.S.C. Sections 9 and 12. In support of this argument, Compassionate Care notes that we have previously affirmed the decision of a district court to consider a request to vacate made in a complaint, rather than by motion. Johnson v. Directory Assistants Inc., 797 F.3d 1294, 1299 (11th Cir. 2015) (“[T]he Federal Rules are liberal, such that ‘an erroneous nomenclature does not prevent the court from recognizing the true nature of a motion . . . .’ ”); see also O.R. Sec., Inc. v. Prof’l Planning Assocs., Inc., 857 F.2d 742, 746 (11th Cir. 1988) 5  Case: 16-10206 Date Filed: 12/14/2016 Page: 6 of 8 (affirming district court’s decision to consider a motion to dismiss as a motion to vacate an arbitration award). However, the cases cited by Compassionate Care do not control the instant action for two reasons. First, in both Johnson and O.R. Securities, this Court merely affirmed a decision of the district court to construe a facially non-compliant filing in a way that comported with the requirements of the FAA. Nothing in those two decisions should be interpreted as requiring the district court to relax the strict procedural requirements of the FAA to the point that any filing will be deemed sufficient to raise the issue of vacatur. More importantly however, the present case, unlike Johnson and O.R. Securities, is not an instance of “erroneous nomenclature” where the parties otherwise fully briefed the issue of vacatur. Rather, Compassionate Care was fully aware of its responsibility to submit an additional motion to vacate the arbitration award—twice advising the court of its intent to do so—and simply failed to meet its burden in the allotted time. While our previous cases suggest that we may have been willing to sanction a decision of the district court to construe Compassionate Care’s filings as a motion to vacate—something we need not decide—the court was certainly under no affirmative obligation to do so. Accordingly, the decision of the district court to confirm the award based solely on Compassionate Care’s failure to file a motion to vacate within 90 days is due to be affirmed. 6  Case: 16-10206 Date Filed: 12/14/2016 Page: 7 of 8 Additionally, the district court was correct in denying Compassionate Care’s motion to reconsider under Local Rule 7.2(E) and Federal Rules 59(e) and “60(a)(b).”2 Compassionate Care failed to identify any newly discovered evidence, a change in controlling law, or a need to correct a clear error of law or fact that would warrant reconsideration under Local Rule 7.2(E). Moreover, having failed to raise their arguments before the district court confirmed the arbitrator’s award, Compassionate Care was barred by the terms of Federal Rule 59(e) from raising them in a motion to amend. Finally, Compassionate Care has failed to establish any, let alone all, of the three requirements entitling them to relief based on mistake, inadvertence, or excusable neglect under Federal Rule 60(b). Accordingly, the district court’s decision to deny the motion for reconsideration was not in error and is also due to be affirmed. Finally, even if the district court incorrectly concluded that Compassionate Care failed to satisfy the procedural requirements of the FAA and even if it impermissibly denied the motion to reconsider—which it decidedly did not—the arguments in favor of vacatur were meritless. Compassionate Care has simply failed to demonstrate any of the four statutory bases for overturning an arbitrator’s 2 The Court is aware that Federal Rule “60(a)(b)”—under which Compassionate Care requested relief from a final judgment in the district court—does not exist. We are also aware that Federal Rule “60(b)(1)(6)”—under which they request relief in this Court—is similarly nonexistent. However, because Compassionate Care’s brief on appeal alleges that their failure to file a motion to vacate was due to “mistake, inadvertence and excusable neglect” we consider the requested relief as arising under Federal Rule 60(b)(1) and proceed accordingly. 7  Case: 16-10206 Date Filed: 12/14/2016 Page: 8 of 8 decision and has, accordingly, fallen well short of overcoming the heavy presumption under the FAA that arbitration awards will be enforced. Accordingly, the district court’s conclusion that “the arbitrator issued a reasoned award” is independently sufficient to affirm its decision on appeal. Therefore, because we find no error in the district court’s dismissal of Compassionate Care’s challenges to the arbitration award as time barred, in its denial of their motion for reconsideration, or in its ultimate conclusion that any challenges were meritless, the decision of the district court is AFFIRMED. AFFIRMED. 8 

724 S.E.2d 508 (2012) STATE v. Miguel D. HERNANDEZ. No. 517P11-1. Supreme Court of North Carolina. March 8, 2012. Miguel D. Hernandez, Elizabeth City, for Hernandez, Miguel D. Catherine F. Jordan, Assistant Attorney General, for State of North Carolina. W. Clark Everett, District Attorney, for State of North Carolina. The following order has been entered on the motion filed on the 28th of November 2011 by Defendant to Appoint Counsel: *509 "Motion Dismissed as Moot by order of the Court in conference, this the 8th of March 2012."

214 B.R. 219 (1997) In re Sophie SERRATO, Debtor. Suzanne L. DECKER, Plaintiff, v. Frank J. VOISENAT, Defendant. Bankruptcy No. 590-04408, Adv. No. 92-5396. United States Bankruptcy Court, N.D. California. September 30, 1997. *220 *221 Mark S. Bostick, Wendel, Rosen, Black & Dean, Oakland, CA, for plaintiff Suzanne L. Decker, trustee. Mark Voisenat and Phyllis N. Rafter, Law Office of Phyllis N. Rafter, Oakland, CA, for defendant Frank J. Voisenat. OPINION MARILYN MORGAN, Bankruptcy Judge. I. INTRODUCTION This adversary proceeding is one of several fraudulent transfer actions filed by the trustee arising in the chapter 7 case of Sophie Serrato. What sets this proceeding apart from the typical fraudulent transfer action is the sophistication of the participants and their familiarity with the bankruptcy process. Serrato is, in her own words, a "real estate consultant" in the business of "mitigation of foreclosures." At the time of trial in this matter, she operated a business known as Home Equity Line Plan (HELP) that provided consulting services to financially distressed clients attempting to preserve their homes against foreclosure sales. Serrato gave seminars on this topic. Serrato also has a law degree, but is not licensed by the State of California. In 1992, she was adjudicated a vexatious litigant pursuant to California Code of Civil Procedure section 391, a finding later affirmed by the California Sixth District Court of Appeals. Serrato has three adult children: Frank, Marc and Phyllis. Frank is the defendant in this adversary proceeding. Marc is an attorney with a bankruptcy practice, a licensed real estate broker and President of MVP Realty. Phyllis is also an attorney practicing bankruptcy law. Marc and Phyllis represented Frank as counsel in this adversary proceeding. The trustee alleges that Serrato quit-claimed property she owned at 1918 102nd Avenue in Oakland, California to Frank in September of 1988 in an attempt to defraud her creditors. The trustee asserts that this transfer was one of a series of fraudulent transfers Serrato made during that time period, and that it exemplifies Serrato's decade-long practice of transferring assets to family members and friends to hide them from her creditors and from the trustees during her numerous bankruptcy cases. II. FACTUAL BACKGROUND A. The Small Business Administration Loan. In May 1980, Serrato obtained a $50,000 loan from the Small Business Administration (SBA) to fund a business called Attorney Services Legal Clinic (ASLC). ASLC provided low cost services to clients in need of legal advice. Serrato's role at ASLC was to meet with potential clients, determine the legal issues they presented, and refer them to staff attorneys with particular legal expertise. Serrato's SBA loan was secured by a lien on all of ASLC's business equipment, including machinery, furniture and fixtures, and Serrato's personal property. The SBA loan was also secured by Serrato's personal guarantee. As part of the guarantee, Serrato assigned to the SBA her interest in a $30,000 promissory note made by Guy West and C. Allen West. The West note was secured by property at 2917 Moran Road in Arnold, California which Serrato claimed was worth approximately $100,000 in 1980. She did not assign the deed of trust that she held on the property to the SBA. *222 Serrato made only one payment on the SBA loan. On October 14, 1980, the loan went into collection status. On August 10, 1982, the Superior Court for Alameda County entered a final judgment and permanent injunction prohibiting Serrato from operating ASLC. As part of the judgment, Serrato stipulated to having unlawfully practiced law in California. Because she could no longer operate ASLC, the SBA did not advance any additional funds to Serrato. At that point, the SBA had funded $16,900 of the loan. Serrato testified that she felt she no longer owed the SBA any money on its loan since she had assigned the West note as collateral and had given the SBA a lien on her business and personal property, collateral she claimed was worth in excess of $90,000, in return for only $16,900. B. Serrato's Practice of Transferring Property To Family Members. On April 28, 1983, Serrato assigned the West note and deed of trust to her sister, Mercy Lopez. She did not inform the SBA of this assignment. Although Serrato did not produce the actual assignment document, she testified that she made the assignment subject to the SBA's lien. Serrato claimed she made the assignment to Lopez because Lopez had given Serrato $16,000 at a financially difficult point in Serrato's life. The $16,000 gift purportedly came with no strings attached. However, Serrato decided that she wanted to put the West note in her sister's name, in case the SBA ever "gave me back my note" and Serrato "died or whatever happened." She put the West note and deed of trust in Lopez's name, but did not tell Lopez about this assignment. Two months later, on July 27, 1983, Serrato filed a chapter 11 case in Oakland, California. On September 2, 1983, Serrato recorded her assignment of the West note and deed of trust to Lopez. Serrato's chapter 11 case was dismissed by court order entered on December 5, 1983. On March 8, 1984, Serrato filed a chapter 13 case in Oakland, California. This case was dismissed by court order entered on November 15, 1984. On April 11, 1985, Serrato filed a second chapter 13 case in Oakland, California. On May 14, 1985, Serrato sent the SBA an "Offer in Compromise" proposing to pay $21,000 to settle her debt.[1] She claimed the SBA sent the form to her, asked her to fill it out, and agreed that it would compromise its debt if she filled out the form. She felt this was the only way the SBA would negotiate with her. At trial, Serrato explained that although she believed she owed nothing to the SBA since its debt was oversecured, she sent the offer to "get rid of" the SBA and to get rid of the "ax over [her] head." However, the SBA did not respond to Serrato's offer. The chapter 13 case was voluntarily dismissed by court order entered on July 24, 1985. On July 14, 1986, Lopez reconveyed the West note and deed of trust to Serrato. In early 1988, Serrato and her husband, Mark Davenport, were in the process of obtaining a marital annulment. On March 18, 1988, Davenport filed a chapter 7 case in the San Francisco Bankruptcy Court. Soon thereafter, Serrato and the chapter 7 trustee were embroiled in a series of disputes regarding whether various marital assets were community property. On April 24, 1988, Serrato assigned the West note and deed of trust to her 20-year-old son, Frank. Although he was not a real estate agent or broker, and "had little or no real estate experience" at that time, Frank was President of FJV Financial, a real estate and loan brokerage company. *223 At Serrato's 2004 exam, she claimed she sold the West note and deed of trust to Frank for $5,000 cash. At trial, after Frank testified that he did not know about the West note assignment, Serrato recalled the transaction differently. She explained that Frank had been in a car accident in 1988 and had received $5,000, which he had given to Serrato. Although the gift purportedly came with no strings attached, Serrato felt that in the event that she "died or whatever," she wanted Frank to have the note. She assigned the West note and deed of trust to him, but did not tell him about the assignment. Serrato claimed not to have actually transferred anything through the assignment because the note was already assigned to the SBA. She stated that she intended to buy back the note from the SBA at a later time, to give the assignment value. Two months later, on July 1, 1988, while still in the process of her annulment from Davenport, Serrato quitclaimed a condominium located at 150 Pearl Street, Unit 325 to Frank. Frank testified that he knew nothing of the transfer. Serrato explained that she put the condominium in Frank's name to keep it from her husband. She justified the transfer by explaining that she had originally used funds from the sale of her separate property in San Leandro to purchase the condominium. In early September 1988, the Trustee in Davenport's chapter 7 case proposed to settle with Serrato. He agreed to transfer to Serrato the condominium located at 150 Pearl Street, Unit 325, another property located at 1918 102nd Avenue in Oakland, and a vehicle — assets she claimed were her separate property — in exchange for $7,500. As part of the compromise, the trustee had the 102nd Avenue property appraised. The uncertified appraisal indicated that the fair market value of the property was $25,000. The compromise of controversy was approved by the San Francisco Bankruptcy Court. C. The Transfer At Issue. On September 15, 1988, Serrato quitclaimed the 1918 102nd Avenue property to Frank. The documentary transfer tax information on the quitclaim deed indicates that the property was a gift, with "no loans assumed." There was no escrow of the property, and no writing evidencing a sale of the property. When questioned, both Frank and Serrato gave inconsistent testimony regarding the nature of this transfer. At Frank's deposition, he claimed the transfer was a gift from Serrato and that any money he received from a subsequent sale of the property was his to keep "free and clear." At trial, however, Frank recanted this deposition testimony, explaining that he had worked a double shift and had drunk a beer immediately prior to his deposition, causing him to make false statements. Frank testified at trial that he and Serrato had an oral agreement that he would turn over any proceeds from the sale of 1918 102nd Avenue to her. He called this arrangement "delayed consideration." At Serrato's 2004 exam, she claimed that she sold the 102nd Avenue property to her other son, Marc, in 1987 for $44,000. She claimed not to have received any proceeds from the sale because the escrow company disbursed the finds to various lienholders. During the trial, however, Serrato admitted putting the property in Frank's name. She argued that the transfer was not a gift, and that Frank simply held the property for her benefit. She claimed she put it in Frank's name so he could get refinancing for it. She testified that she could not get refinancing on her own due to her bad credit. When asked why she listed the property as a gift on the quitclaim deed, she explained that "that was how they told me to put it in if I wanted to not have to pay transfer taxes." Five months later, on or about February 15, 1989, Frank sold the 102nd Avenue property to his brother, Marc, for $55,000. Prior to the sale, Frank claimed that he obtained an appraisal showing the value of the property to be between $45,000 and $55,000. Frank testified that the apparent increase in the value of the property was due to significant improvements he made prior to the sale. He explained that the cottage on the property had been damaged by a fire, and asserted that he had relaid all of the flooring, installed new appliances, remodeled the bathrooms, painted inside and out, put on a new roof, *224 cleared debris, rebuilt the porch and steps, put in a new mailbox, and landscaped. However, neither Frank nor Serrato presented any corroborating evidence, apart from their own testimony, to establish that these improvements actually occurred. Following the sale to Marc, Frank received two checks totaling $40,314.94. The first check was for $36,717.44. The second, following payment for termite repairs, was for $3,597.50. Frank also received a deed of trust from Marc secured by the property for $5,000, but he forgave this debt. The escrow company advanced approximately $5,536.96 to pay off liens against the property and $4,705 for termite repairs. On February 17, 1989, Frank deposited $32,824.37 into Home Equity Line Plan (HELP)'s checking account at American Savings Bank. At trial, Serrato testified that she considered this money to be her income. She testified that the American Savings account was her account, although Frank and Marc had access to it to pay bills since she did not enjoy this task. She claimed that she used $15,000 of the proceeds from the sale to buy more equipment for her business, and used the remainder of the money to pay off a few creditors and to buy property. She provided a check from the American Savings account dated February 26, 1989 for $3,500 made out to Kathleen Hendron. She claimed this was to purchase another condominium at 150 Pearl Street. She also presented a grant deed dated March 23, 1989 from John Conley to Serrato for property she professed to have purchased at 2412 Highland Avenue. Serrato claimed to have no additional records indicating how she spent the proceeds from the sale of the 102nd Avenue property. However, several checks that Marc wrote from the American Savings account around February 17, 1989 were submitted at trial attached to the back of a defense exhibit. These checks provided insight regarding the use of proceeds from the sale of the 102nd Avenue property. For example, on February 16, 1989, Marc wrote a check for $5,021.50 to a woman who later became his wife. Serrato claimed this was a payment from an investment. On February 17, Marc wrote a check to Phyllis' husband for $6,739.50. Serrato claimed this was for repayment of a personal loan. On February 21, Marc wrote a check to "Cash" for $2,700. Serrato claimed this was for Marc's salary. D. The Instant Bankruptcy Case. On September 14, 1990, Serrato filed a chapter 7 case in San Jose. In her statement of affairs, she stated her annual income for 1988 and 1989 as $9,000 and $10,000, respectively. Despite her experience in having filed at least three prior bankruptcy cases, Serrato explained that it was her belief that the statement of affairs sought her "net income." She did not mention the $32,824.37 she received from the sale of the 102nd Avenue property. She listed only a chapter 13 case from 1983 as a prior bankruptcy case. In Serrato's schedules she listed total assets of $152,700 and total debts of $236,867.92. She did not list the West note as an asset. She did not list the condominium at 150 Pearl Street acquired in 1989 or the 2412 Highland Avenue property as assets. Despite her testimony at trial that her business equipment was worth $47,000 in 1990, she listed it as having a value of only $700 and claimed it as exempt. She listed the SBA as an unsecured creditor for a $26,000 debt. She signed a declaration, under penalty of perjury, stating that this information was true to the best of her knowledge, information and belief. On October 18, 1990, the First Meeting of Creditors was held and the trustee filed a Report of No-Asset Case. On January 11, 1991, Serrato received a discharge of her debts. On March 14, 1991, the chapter 7 case was closed. In April of 1991, while prosecuting a state court action against Serrato, attorney David McKim obtained information indicating that Serrato might have fraudulently transferred assets to family members. He contacted the trustee with this information. Soon thereafter, the trustee sought an order from the court for authority to employ McKim as special counsel to investigate these claims. In August of 1991, the trustee filed two adversary complaints for fraudulent conveyance actions. Both the trustee and trustee's *225 counsel were apparently unaware that the main case had closed. Adversary number 91-5309 concerned the status of the West note and deed of trust. Adversary number 91-5323 was an action to set aside the transfer of 1918 102nd Avenue to Frank. In the 91-5309 proceeding, the trustee obtained an order from the court compelling Marc to appear at a 2004 examination. Marc brought a motion to vacate this order for lack of subject matter jurisdiction. He argued that the adversary proceedings were improperly filed because the bankruptcy case was closed and the trustee had never moved to reopen the case. On February 5, 1992, the court signed an order vacating the Order of Examination for lack of subject matter jurisdiction. That same day, Serrato filed a motion to dismiss adversary number 91-5309 for lack of subject matter jurisdiction. On February 14, 1992, Serrato recorded a reconveyance of the West note from Mercy Lopez to herself. She also recorded her assignment of the note to Frank, and an assignment of the note from Frank to her friend, Rebecca Rangel. On February 21, 1992 the trustee filed a motion to vacate the closing of the main case, or alternatively, to reopen the main case. The trustee's motion, and Serrato's motion to dismiss adversary number 91-5309, were heard on March 6, 1992. At the hearing, the trustee's counsel expressed serious concerns about the effect of dismissal of the adversary proceeding and whether further proceedings would be barred by the statute of limitations. Ultimately, the court dismissed adversary number 91-5309 for lack of subject matter jurisdiction, but granted the trustee's motion to reopen the chapter 7 case. On July 16, 1992, the trustee commenced this adversary proceeding to set aside the transfer of 1918 102nd Avenue to Frank. On July 27, 1992 Serrato converted the main case to chapter 13 and became debtor-in-possession. While acting as debtor-in-possession, she attempted to dismiss the instant adversary proceeding by filing a notice of dismissal. Dismissal was rejected by the court, and the case was reconverted to chapter 7 on March 31, 1993. Serrato was deposed on June 30, 1993. She refused to answer any question that was put to her on Fifth Amendment grounds. Frank was deposed on August 17, 1993, but later recanted his deposition testimony. On November 1, 1994, the trustee identified the SBA as the requisite creditor whose claim existed at the time of the transfer and indicated that the trustee intended to call the SBA's custodian of records as a witness at trial. After numerous procedural disputes, including two defense motions to dismiss the case, trial of this matter commenced on February 10, 1995. Due to the unanticipated length of the trial and the intervening motions, closing arguments were not heard until March 21, 1997. III. ANALYSIS The crux of this adversary proceeding is the trustee's allegation that Serrato quitclaimed the 102nd Avenue property to Frank in an attempt to defraud her creditors. The trustee relies on Bankruptcy Code § 544(b) to bring this action.[2] Section 544(b) allows the trustee to stand in the shoes of a defrauded unsecured creditor to bring an avoidance action under state law. Here, the trustee relies on the SBA's claim against Serrato to bring an action against Frank based on California fraudulent transfer law. The trustee maintains, in pertinent part, that Serrato's transfer of the 102nd Avenue property to Frank was intentionally fraudulent based on California Civil Code section 3439.04(a).[3] For the following reasons, the court agrees. *226 A. The Trustee's Action Is Not Barred By Bankruptcy Code § 546(a)'s Statute Of Limitations. Civil Code section 3439.09(a) requires that an avoidance action be brought within four years of the date of the alleged fraudulent transfer, or within one year after plaintiff could have reasonably discovered the transfer. Cal.Civ.Code § 3439.09(a) (West 1997). Here, the trustee's avoidance action was filed on July 16, 1992, within the four year statute of limitations. However, Bankruptcy Code § 546(a) imposes an overriding statute of limitations for § 544(b) actions. Mahoney, Trocki & Assocs. v. Kunzman (In re Mahoney), 111 B.R. 914, 919-920 (Bankr.S.D.Cal. 1990); McGoldrick v. McGoldrick (In re McGoldrick), 117 B.R. 554, 560-561 (Bankr. C.D.Cal.1990). Section 546(a) provides that an action under § 544 is barred after the earlier of either a) two years from the date of the appointment of a trustee, or b) the dismissal or close of the bankruptcy case.[4] (Emphasis added.) Frank argues that the trustee's action is barred by § 546(a)'s statute of limitations because Serrato's chapter 7 case closed in March of 1991. This argument ignores § 350(b)'s mandate that the court shall close a case only after the estate is fully administered. Gross v. Petty (In re Petty), 93 B.R. 208, 211 (9th Cir. BAP 1988). The case has not been fully administered pursuant to § 350(b) and is not properly and finally closed where the court discovers a potential asset that the debtor has failed to disclose in a bankruptcy petition, which may be administered and may result in the return of money to the estate. Id. If the two year statute of limitations under § 546(a) has not tolled, the trustee is not barred from bringing an avoidance action merely because the estate was closed under the mistaken assumption that it had been fully administered. Id. at 212. The trustee should not be penalized for delay where it results in part from debtor's concealment of information. Id. at 211-213. In the present case, the two year statute of limitations under § 546(a) had not tolled when the trustee filed this adversary proceeding. The chapter 7 trustee was appointed by order entered on September 19, 1990. The trustee filed this adversary proceeding twenty-two months after her appointment, on July 16, 1992. Accordingly, the trustee's action was not barred by § 546(a)'s statute of limitations. Frank further contends that the trustee's suit should be barred by laches. California Civil Code section 3439.10 provides that principles of law and equity, including the defense of laches, apply in a fraudulent transfer action. However, the doctrine of laches does not operate as a bar to an avoidance claim that is timely under Bankruptcy Code § 546(a). In re Petty, 93 B.R. at 212. B. The Trustee Has Standing to Bring This Action Under Bankruptcy Code § 544(b). Bankruptcy Code § 544(b) provides that "[t]he trustee may avoid any transfer of an interest of the debtor in property ... that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title...." 11 U.S.C.A. § 544(b) (West 1997). To set aside the transfer of the 102nd Avenue property using § 544(b), the trustee must show that the SBA had an allowable unsecured claim at the time the transfer was made and could have avoided the transfer under California law. Frank claims that the trustee lacks standing to bring this action under § 544(b) because the SBA's claim is barred by the applicable statute of limitations and is not unsecured. 1. The SBA's Claim Is Not Barred by 28 U.S.C. § 2415's Statute of Limitations. All parties concede that the SBA's claim is subject to the six year statute of limitations for federal actions on contracts, set forth at 28 U.S.C. § 2415. However, the parties dispute at what point the SBE's right of action against Serrato accrued. The SBE note contained both a clause providing for automatic acceleration of the underlying debt in the event that Serrato filed a case under Title 11, and a clause providing for optional acceleration *227 by the SBE in the event Serrato failed to make a payment when it came due. The parties disagree as to whether Serrato's default under either clause activated the running of § 2415's statute of limitations. Frank argues that because Serrato filed a chapter 11 case in 1983, this triggered the automatic acceleration clause.[5] He claims the SBA's right of action accrued at that time, and the statute of limitations expired six years later, in 1989. The trustee responds that dismissal of Serrato's chapter 11 case nullified the acceleration clause and that the res ipsa provisions of the Bankruptcy Code are not applicable to loans. Bankruptcy Code § 349(b) provides that dismissal "reinstates proceedings or custodianships that were superseded by the bankruptcy case, reinstates avoided transfers, reinstates voided liens, vacates any order, judgment, or transfer ordered as a result of the avoidance of a transfer, and revests the property of the estate in the entity in which the property was vested at the commencement of the case." H.R.Rep. No.595, 95th Cong., 1st Sess. § 349 (1977). The basic purpose of § 349(b) is to "undo the bankruptcy case, as far as practicable, and to restore all property rights to the position in which they were found at the commencement of the case." Id. Generally, dismissal of a bankruptcy case reestablishes the rights of the parties as they existed when the petition was filed, and restores the pre-bankruptcy status quo. Derrick v. Grafe Commodities, Inc. (In re Derrick), 190 B.R. 346, 350 (Bankr. W.D.Wis.1995). "It is as though the bankruptcy case never had been brought." In re Lewis & Coulter, Inc., 159 B.R. 188, 190 (Bankr.W.D.Pa.1993). There are certain exceptions to § 349's directive to restore the pre-bankruptcy status quo. Dismissal does not necessarily "undo" the bankruptcy case where parties have obtained rights in reliance on the case. In re Derrick, 190 B.R. at 352-353. For example, § 349(b) does not "encompass undoing sales of property from the estate to a good faith purchaser." H.R.Rep. No.595, 95th Cong., 1st Sess. § 349 (1977). Dismissal does not always divest the bankruptcy court of jurisdiction over related cases. Carraher v. Morgan Electronics, Inc. (In re Carraher), 971 F.2d 327, 328 (9th Cir.1992). Dismissal does not automatically moot a proceeding for damages for willful violation of the automatic stay. Davis v. C.G. Courington (In re Davis), 177 B.R. 907 (9th Cir. BAP 1995). Dismissal does not necessarily eliminate the collateral estoppel or res judicata effect that a bankruptcy court decision made during a bankruptcy case has in a later proceeding. United States v. Standard State Bank, 91 B.R. 874 (W.D.Mo.1988), aff'd 905 F.2d 185 (8th Cir.1990). Here, however, the SBA did not assert its rights to the underlying collateral upon acceleration of the debt, or gain any rights in reliance on the bankruptcy case. Accordingly, the trustee is correct that dismissal would nullify the effect of the automatic acceleration clause in this case. Frank further argues that the SBA's claim is barred since Serrato's SBA loan went into collection status in October 1980 and the trustee did not file this action until twelve years later. The trustee first responds that the SBA's right of action did not accrue until August 1985, ninety days after it received Serrato's "Offer in Compromise," basing this result on Curry v. United States Small Business Administration, 679 F.Supp. 966 (N.D.Cal.1987). In Curry, Judge Orrick considered the issue of when the SBA's right of action to collect on a promissory note accrued. The SBA had loaned Curry $21,000 in 1970 in exchange for a promissory note secured by a deed of trust. In 1974, Curry defaulted. For the next three years, the parties negotiated regarding a suitable repayment plan. In July 1978, the SBA wrote to Curry citing the defaulted status of her loan and threatened to foreclose on her home. Curry responded with an Offer in Compromise; however, the SBA failed to acknowledge this offer and took no action. Judge Orrick observed that: ... "a party is not at liberty to stave off operation of the statute [of limitations] inordinately *228 by failing to make a demand." In such cases, "when statutorily unstipulated, the time for demand is ordinarily a reasonable time ... [and] a matter of the parties' expectations...." Id. at 969-970 (citations omitted). The Court determined that the SBA's right of action accrued ninety days after it received Curry's Offer in Compromise, and held that the SBA's claim was barred by the statute of limitations. Id. at 970. Prior to May 1985, Serrato testified at trial that she was "negotiating" with the SBA regarding her loan. She also testified that the SBA demanded its collateral around that time. As the Ninth Circuit has noted, "imposing a narrow time frame in which the government must demand acceleration would impede its efforts to work out payments with solvent but financially troubled borrowers." United States v. Dos Cabezas Corp., 995 F.2d 1486, 1491 (9th Cir.1993). Here, as in Curry, it appears that 90 days after receipt of Serrato's Offer in Compromise was a reasonable time for the SBA to have made its demand for payment. Accordingly, the SBA's right of action accrued in August 1985. Frank again argues that the action is untimely since Serrato's chapter 7 case first closed in March 1991, the six year statute of limitations under 28 U.S.C. § 2415 would have expired in August 1991 and the trustee did not file this action until July 16, 1992. However, since Serrato failed to disclose potential assets, her estate was never fully administered properly and finally closed in March 1991 for Bankruptcy Code § 350(b) purposes. See Gross v. Petty (In re Petty), 93 B.R. 208, 211 (9th Cir. BAP 1988). Accordingly, Bankruptcy Code § 108(c) tolled the six year statute of limitations[6] and the trustee's action was timely filed. 2. The SBA's Claim Against Serrato Is Unsecured. Next, Frank maintains that the SBA's claim is fully secured. He relies on the testimony of Idamari Taylor, the SBA loan officer who handled the SBA's loan to Serrato, that the loan was originally secured and the SBA never released its security interest. However, Taylor also testified that the SBA declined to foreclose on the collateral because the business and personal property securing the loan were of little or no value, and the West note was uncollectible. Taylor noted that the SBA was unable to record the West note because it lacked the underlying deed of trust. She added that, as of September 14, 1990, the $16,900 loan had grown to a debt of $29,441.93, reflecting past due interest. Serrato's testimony regarding the secured nature of the claim was contradicted by the evidence. When she testified that the West note was worth $40,000 based on accrued interest and advances she made to senior lienholders on the West property, the trustee introduced into evidence a judgment obtained by Guy West in 1990 setting the correct loan balance due on the West note as of July 1, 1988 as $21,792.26. When Serrato testified that the West note was constantly in default after 1988, the trustee submitted into evidence nine checks from Guy West made payable to Serrato from 1989 to 1990 for $330.33 each. Serrato responded that she had never received the checks, although they are endorsed with the name "Sophie Serrato." She denied that the endorsement was her signature. When asked how the SBA could have foreclosed on the West note after she transferred it to Mercy Lopez and to Frank, Serrato claimed, without corroborating evidence, that the transfers "excepted" the SBA's interest in the note. Serrato's bankruptcy schedules also contradict her testimony. She did not list the West note as an asset in her schedules. She testified that her business property securing the SBA loan was worth $47,000 in 1990, but listed this equipment in her schedules as having a value of $700. Finally, she testified *229 that the SBA loan was secured by $90,000 of collateral; yet she listed the SBA in her bankruptcy schedules as an unsecured creditor with a claim of $26,000. Because of inconsistencies in Serrato's testimony and in her bankruptcy schedules, the court finds her testimony unreliable. The preponderance of credible evidence indicates that the SBA's loan was largely unsecured on September 15, 1988. Any unsecured portion of the loan at the time of the transfer of the 102nd Avenue property became an unsecured claim. See 11 U.S.C. § 506(a); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 239-240, 109 S.Ct. 1026, 1029, 103 L.Ed.2d 290 (1989). C. Serrato Transferred the 102nd Avenue Property To Frank With Actual Intent To Defraud Her Creditors. To prevail in a fraudulent transfer action based on Civil Code section 3439.04, the trustee bears the burden of proving that Serrato quitclaimed the 102nd Avenue property to Frank with actual intent to hinder, delay or defraud her creditors by a preponderance of the evidence. Whitehouse v. Six Corp., 40 Cal.App.4th 527, 533, 48 Cal. Rptr.2d 600, 604 (1995), citing Liodas v. Sahadi, 19 Cal.3d 278, 292, 137 Cal.Rptr. 635, 644, 562 P.2d 316, 325 (1977). Rarely will a debtor admit to transferring property with an actual intent to defraud creditors. Because of this difficulty in obtaining direct proof, "in most cases the evidence must of necessity consist of inferences drawn from the circumstances surrounding the transaction and the relationship and interests of the parties." Neumeyer v. Crown Funding Corp., 56 Cal.App.3d 178, 183, 128 Cal.Rptr. 366, 369 (1976). California adopted the Uniform Fraudulent Transfer Act, which is codified in Civil Code section 3439 et seq. The Uniform Fraudulent Transfer Act contains a list of factors, or "badges of fraud," indicative of actual intent to defraud.[7]Lyons v. Security Pacific Nat. Bank, 40 Cal.App.4th 1001, 1020-1021, 48 Cal.Rptr.2d 174, 185 (1995). The California Legislative Committee chose not to include the badges of fraud in the statute, but added them to the official comments. In doing so, the Committee noted that the presence of one or more of these badges does not give rise to a presumption of fraud, but "is merely evidence from which an inference of fraudulent intent may be drawn." 12 West's Ann.Civ.Code § 3439.04 (1997 supp.) p. 191 (Assem. Committee Comm. (1986)).[8] The trustee has established numerous badges of fraud with regards to Serrato's transfer of the 102nd Avenue property to Frank. 1. Serrato Transferred the 102nd Avenue Property To An Insider. First, the trustee correctly points out that Serrato's transfer of the 102nd Avenue property to her son Frank was a transfer between insiders. The relationship of parent and child, when coupled with other suspicious circumstances, gives rise to an inference of fraud. Wood v. Kaplan, 178 Cal.App.2d 227, 230, 2 Cal.Rptr. 917, 919 (1960). In such cases, "the parties are held *230 to a fuller and stricter proof of the consideration, and of the fairness of the transaction." Id. (citations omitted). 2. Serrato Retained Control Over the 102nd Avenue Property. Serrato and Frank freely admit that Serrato retained control over the 102nd Avenue property after the transfer. Serrato testified that she considered the property to be hers, that the proceeds from the sale were hers and that she put the property in Frank's name only to get refinancing. She claims to have paid for all of the purported repairs to the property. Frank, after recanting his deposition testimony, supported Serrato in these assertions. 3. Serrato and Frank Concealed the Transfer. Serrato and Frank actively concealed the transfer of the 102nd Avenue property. An agreement between parties to conceal a transfer from the public is said to be one of the strongest badges of fraud. Walton v. First National Bank, 13 Colo. 265, 22 P. 440 (1889). There was no writing evidencing a sale of the 102nd Avenue property to Frank, and no escrow. At her 2004 exam, Serrato testified that she sold the property to Marc in 1987 and that all funds were disbursed to lienholders. When asked about the transfer at her deposition, Serrato refused to answer the question on Fifth Amendment grounds. Moreover, the transfer took place during Serrato's contested marital annulment, where, in a six month period, she put the West note, Unit 325 at the Pearl Street condominium and the 102nd Avenue property in Frank's name. 4. Serrato Was Threatened With Suit Before She Transferred The Property. Serrato testified at trial that she was threatened with suit before she made the transfer. She stated that many of the creditors she listed in her bankruptcy schedules were actually creditors of her ex-husband. She listed them because "I just did not want to be part or [sic] sued for something that he had done." 5. Serrato Has Removed and Concealed Assets. Serrato carried out a practice of removing and concealing assets. For example, she put the West note in Mercy Lopez' name without telling Lopez, and filed a chapter 11 case two months later. She put the Pearl Street condominium in, mark Davenport's name for the express purpose of concealing her ownership. She later put the Pearl Street condominium in Frank's name without telling him. She testified at trial that she did this to keep the condominium from her ex-husband. She also transferred the West note to Frank without telling him. Serrato failed to list assets in her bankruptcy schedules. She failed to list the Pearl Street condominium that was later acquired in 1989 or the 2412 Highland Avenue property as assets. She made no mention of the $32,824.37 she obtained from the sale of the 102nd Avenue property. Finally, Serrato refused to provide a straightforward accounting of her assets. When asked about the status of certain assets at her 2004 examination, she gave untruthful or deceptive answers. At her deposition, she refused to answer any questions on Fifth Amendment grounds. 6. The Transfer Involved No Consideration. Serrato received no consideration from Frank in return for the quitclaimed property. The quitclaim deed states that the property was a gift. There were no funds exchanged, and Serrato maintains that Frank merely held the property for her benefit. Frank contends that the 102nd Avenue property was overencumbered when Serrato transferred it to him in September of 1988 and that his agreement to take on the debt constituted consideration. He points out that an appraisal obtained by the trustee in Mark Davenport's chapter 7 case stated the fair market value of the property in June of 1988 as $25,000. He also testified that he believed the property was worth between $17,000 and $20,000 in 1988. Serrato testified that at the time she transferred the property to Frank, it was subject *231 to $36,500 in liens. These liens were: a $6,500 mechanic's lien in favor of G & H Construction; a $9,000 child support lien in favor of Dorma Acker; a $16,000 first deed of trust held by Frances and George Clemons; tax liens in excess of $3,000 and refuse liens in excess of $2,000. To support the existence of these liens, Frank submitted as an exhibit a preliminary title report dated June 29, 1988. The title report is inconclusive and unpersuasive. It indicates that G & H Construction had a mechanic's lien for $6,495 as of January 20, 1987. There is no mention of the balance of this lien as of September 15, 1988. The title report contains no record of Acker's purported child support lien. Instead, Frank has attached a demand letter from Acker's attorney, and an unsigned document authorizing the escrow company to withhold $9,224.00 from escrow of the sale to Marc, to be paid to Acker's attorney. Finally, the title report indicates that the Clemonses were the beneficiaries of a $14,000 deed of trust on the property, to secure repayment of an obligation owed by Archie Acker. The Clemonses assigned their interest in this deed of trust to Mark Davenport on January 27, 1987. Thus, there is no corroborating evidence to establish that the property was sold subject to the G & H mechanic's lien, the Acker child support lien or the Clemons deed of trust. In fact, the escrow closing statement from Frank's sale of the property to Marc indicates that the escrow company paid only the tax liens and refuse liens on the property. For these reasons, the court concludes that the property was not overencumbered when Serrato quitclaimed it to Frank. 7. Serrato and Frank Gave Unreliable Testimony. Compounding these six badges of fraud is the fact that Serrato and Frank's testimony was entirely unreliable. Their credibility was damaged by numerous inconsistencies between the testimony they gave during discovery and the testimony they' presented at trial. Even where their testimony was not inconsistent, it was often marked by suspicious vacillation. For example, when Frank and Serrato were asked to identify their signatures on certain documents at trial, they both gave evasive responses. Frank stated that, "my signature doesn't look like that now, but it might have at that time." Serrato stated "Well, I don't sign it like that anymore, Your Honor, so I'm not sure if this is my signature or not." Moreover, Serrato's claimed ignorance of real estate transactions, security interests and bankruptcy procedure was highly disingenuous in light of her business as a real estate consultant "in the business of mitigation of foreclosures," her legal education, and her personal experience in having filed at least three other bankruptcy cases. The evidence clearly establishes that when Serrato quitclaimed the 102nd Avenue property to Frank, her intent was to conceal her ownership of the property, to cloud the title, and to defraud her creditors. The court is satisfied that the trustee has met her burden of proving actual fraud under Civil Code section 3439.04. D. The Trustee Can Recover the Value of the Entire Transfer. Although Civil Code section 3439.07 limits a creditor's recovery in a fraudulent transfer action to the amount necessary to satisfy the creditor's claim, this section is not controlling. The Bankruptcy Code separates "the concepts of avoiding a transfer and recovering from the transferee." Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34 F.3d 800, 808 (9th Cir.1994) (citing H.R.Rep. No. 595, 95th Cong. 1st Sess. 375 (1977)). Although the trustee has demonstrated her right to recovery under state law, she must still establish the amount of recovery pursuant to § 550(a) of the Bankruptcy Code. In re Acequia, 34 F.3d at 809. Section 550(a) provides that: ... to the extent that a transfer is avoided under section 544 ..., the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from — (1) the initial transferee of such transfer ...; or (2) any immediate or mediate transferee of such initial transferee. 11 U.S.C. § 550(a). The Acequia Court recognized that "[a] transaction that is voidable *232 by a single, actual unsecured creditor [under § 544(b)] may be avoided in its entirety, regardless of the size of the creditor's claim." In re Acequia, 34 F.3d at 809, citing Harris v. Huff (In re Huff, 160 B.R. 256, 261 (Bankr. M.D.Ga.1993)); see also Moore v. Bay (In re Estate of Sassard & Kimball, Inc.), 284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (1931). Section 544(b) provides for avoidance of the debtor's "interest" in transferred property. Unfortunately, the Code provides no real instruction as, to how to value a debtor's "interest." In re American Furniture Outlet USA, Inc., 209 B.R. 49, 51 (Bankr. M.D.N.C.1997). Moreover, though § 550(a) enables a trustee to recover the value of transferred property, "the statute does not define `value,' nor indicate at what time `value' is to be determined." Id. However, "the purpose and thrust of [§ 550] is to restore the debtor's financial condition to the state it would have been had the transfer not occurred." Reiber v. Baker (In re Baker), 17 B.R. 392, 395 (Bankr.W.D.N.Y.1982); see also Aero-Fastener, Inc. v. Sierracin Corp. (In re Aero-Fastener, Inc.), 177 B.R. 120, 139 (Bankr.D.Mass.1994) (and cases cited therein). Here, the trustee seeks to recover $45,314.94 from Frank, which she claims is the value of Serrato's equity in the 102nd Avenue property. This amount includes the $40,314.94 that Frank received from escrow, and the $5,000 debt that Frank forgave. The court agrees that $45,314.94 is the appropriate measure of recovery pursuant to sections 544(b) and 550(a). IV. CONCLUSION Because the court finds that the trustee has met her burden of proving that Serrato fraudulently transferred the 102nd Avenue property to Frank with an actual intent to defraud her creditors, the trustee is entitled to recover $45,314.94, the value of Serrato's equity in the property, from Frank Voisenat. NOTES [1] Serrato's Offer in Compromise reads as follows: 1. Debtor under Chapter 13 (3rd filing); and danger exists of being converted to CHAPTER 7, with all debt being discharged. 2. The Note which SBA holds as security has been reassigned by debtor to M. Lopez who took the note and trust deed and recorded same. 3. The default occured [sic] through no fault of debtor; SBA authorized $50K loan extended only $15-16K and Debtor had debt she anticipated paying with SBA loan and which she could not when SBA defaulted. She closed her business w/debt she could not pay. She then became ill and debt mounted more. Illness now arrested and she wants to begin a new life by paying off debt rather than being forced into CHAPTER 7 and ruining credit forever.* *If SBA can accept and return her note, Debtor can drop the current CHAPTER 13 and pay off her other debt as well as other creditors have agreed to compromise their debt. 4. Debtor plans to leave Bay area and start fresh somewhere else. [2] Because the alleged fraudulent transfer took place on September 15, 1988, two years prior to the date Serrato filed her chapter 7 case on September 14, 1990, the trustee is precluded from using the avoidance powers specified in Bankruptcy Code § 548. [3] Civil Code section 3439.04(a) provides that: A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (a) With actual intent to hinder, delay, or defraud any creditor of the debtor. The trustee also argued the transfer was constructively fraudulent based on Civil Code section 3439.05. [4] This is the version of § 546(a) as it existed in 1988. [5] The same argument can be made with regards to Serrato's 1984 chapter 13 case. [6] Bankruptcy Code § 108(c) states "if applicable nonbankruptcy law .... fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor, .... and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201 or 1301 ...." [7] Courts have relied on badges of fraud to "identify fact patterns from which fraud could be construed" since the time of the English common law. See Sandra E. Mayerson et al., Four Centuries of Fraudulent Conveyance Law In Forty Minutes: Its Continuing Development And Application, 652 P.L.I./Comm. 31, 33 (1993). [8] The Committee provided the following as a non-exclusive list of appropriate factors to consider in determining the existence of actual intent to hinder, delay, or defraud a creditor: (1) Whether the transfer or obligation was to an insider. (2) Whether the debtor had retained possession or control of the property transferred after the transfer. (3) Whether the transfer or the obligation was disclosed or concealed. (4) Whether the debtor was sued or threatened with suit before the transfer was made or obligation was incurred. (5) Whether the transfer was of substantially all the debtor's assets. (6) Whether the debtor has absconded. (7) Whether the debtor has removed or concealed assets. (8) Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. (9) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. (10) Whether the transfer had occurred shortly before or shortly after a substantial debt was incurred. (11) Whether the debtor had transferred the essential assets of the business to a lienor who had transferred the assets to an insider of the debtor. Id.

609 So.2d 838 (1992) Nathaniel JOSEPH v. William CANNON, Steve Manning, Charles Alonzo, City of New Orleans, the Willows Apartment Complex, ABC, et al. No. 91-CA-363. Court of Appeal of Louisiana, Fifth Circuit. October 27, 1992. *839 Nathaniel Joseph, pro se. Reginald J. Laurent, Asst. City Atty., New Orleans, for appellant. Suzanne Ganucheau, New Orleans, for William Cannon. Edwin R. Murray, New Orleans, for Nathaniel Joseph. Before KLIEBERT, BOWES and GRISBAUM, JJ. BOWES, Judge. Plaintiff, Nathaniel Joseph, Jr. (hereinafter "Joseph"), and defendant, City of New Orleans (hereinafter "the City"), appeal from a judgment of the district court which ultimately found the City liable for damages to Joseph. In the district court, the jury returned a verdict against defendants, Steve Manning and The Willows Apartments. This has not been appealed. Defendant, William Cannon, was dismissed from the suit after the close of the plaintiff's case. The jury also returned a verdict against the City of New Orleans. Joseph has appealed several aspects of these judgments. We affirm in part and reverse in part. FACTS On March 20, 1986, defendant, William Cannon, an elderly New Orleans resident, was getting out of his car in New Orleans East at the intersection of Martin Drive and I-10 Service Road (NBC Bank) when he was kidnapped at gunpoint and robbed of his money and of his automobile. Cannon was forced to stay in the car with the robber who drove in and out of the Willows Apartment Complex several times before shoving Cannon out at another location and driving away. Minutes later Cannon waived down a truck which took him directly to the Seventh District Police Station. He related details of the crime to Officers Charles Alonzo and Fred Thompson. Alonzo jotted down written notes of Cannon's description of the perpetrator and his automobile and then broadcasted a description of these and of the area in which Cannon had been taken, as well as a description of the robber, and then left the station to investigate the incident. Officer Thompson remained at the station in order to take the original written report from Cannon. The description that was broadcast was exactly that which Cannon had given to Alonzo, i.e. a black male, 20-25 years old, approximately 5'9" or 5'10", weighing about 150 pounds, clean shaven with dark hair, and wearing army fatigue type pants and a gray baseball type cap. Officer Howard Martin and his partner received the broadcast description of the Cannon vehicle and of the suspect, and proceeded to the area to check and inspect the Willows apartment complex. At the back of the complex they located Cannon's automobile. They observed that the motor was still hot and the keys were in the ignition. Alonzo had learned of these facts via radio communication and proceeded to the Willows Apartments where he met Martin. Officers Martin and Alonzo then spoke with the apartment manager, Steve Manning. After giving him the complete broadcast description of the suspect, they asked whether anyone fitting that description lived in the complex. Manning immediately, and without hesitation, told the officers that there was indeed a person named Nathaniel Joseph fitting that description, and who regularly wore the clothes and gray baseball hat described. *840 Upon their request, he gave the officers the apartment number of Nathaniel Joseph. The officers then immediately proceeded to Joseph's apartment and knocked on the door, identifying themselves as police officers. Joseph replied to the knock immediately, but took several minutes to finally open the door which aroused the officers' suspicion. He was wearing pajamas and a gray baseball type cap, and fit the general description of the robber. The officers asked to speak with him about the robbery and Joseph agreed. He was advised of his rights by the officers, who then asked him if he had any objections to their bringing the victim to the apartment for a possible identification. Joseph again had no objection. At some point, the young woman living with Joseph in the apartment gave the officers some army fatigue type pants belonging to Joseph. When Mr. Cannon arrived at the apartment, he walked past the officers, straight up to Joseph, pointed to him and immediately positively identified him, without hesitation, adding that the cap Joseph was wearing was the same one he was wearing during the robbery. The robbery occurred at 11:00 a.m. Officer Alonzo spoke with Cannon initially between 11:20 and 11:30 a.m. and Joseph was arrested at 12:00 noon on the same day, again advised of his rights, and transported to Central Lockup. Subsequently, a preliminary hearing was held in Criminal District Court where Judge Shirley Wimberly found there was probable cause for Joseph's arrest on the charge of Armed Robbery and denied Joseph's motion to suppress the identification. Following a trial by jury for Armed Robbery, at which Joseph offered an "alibi" defense, he was acquitted by a jury. This suit for damages followed. PROCEDURAL HISTORY In January of 1987, Joseph filed a petition for damages against Cannon, Manning, Officer Alonzo, the Willows Apartment Complex, the City of New Orleans, and their respective insurers. The petition alleged that Cannon filed a false complaint; that both Cannon and Manning either intentionally or negligently identified Joseph as the robber; and that Alonzo perjured himself in an effort to convict Joseph. Joseph asked for damages in the amount of $1,800,000.00. The parties tried this matter on March 26, 27, and 28, 1990, before a judge and jury after extensive discovery. The district judge tried the matter as to the City of New Orleans and Police Officer Charles Alonzo, using the jury in an advisory capacity, to assess damages should the court find liability as to either the City or Alonzo. The jury was the finder of fact as to defendants Cannon, Manning and The Willows Apartments. On motion for involuntary dismissal, the court dismissed Cannon from the suit, but denied motions to dismiss the remaining defendants, following the close of plaintiff's case. The jury returned a verdict against Steve Manning and the Willows Apartments. Damages were assessed by the jury in the amount of Two Hundred Sixty Thousand and No/100 Dollars ($260,000.00), with fifty-eight percent (58%) of fault apportioned to the City of New Orleans (as the employer of Alonzo) and forty-two percent (42%) to Steve Manning and The Willows Partnership. The trial judge found that Officer Alonzo committed no intentional tort and entered judgment in the officer's favor dismissing him also. The judge did, however, find that the City was negligent and entered judgment against it accordingly for $150,800.00 (58% of $260,000.00). Both plaintiff, Joseph, and the City appeal the verdict and judgment. After filing some briefs, Mr. Jones filed motions to withdraw as counsel for Mr. Joseph and filed a petition for intervention in the appeal. By the time of final oral argument before this Court, Mr. Joseph voluntarily and by his own choice, represented himself in the appeal and at the final oral argument. At that time this Court afforded all parties unlimited time for argument. *841 ANALYSIS I. Plaintiff Joseph's Appeal A. MALICIOUS PROSECUTION Plaintiff appeals the dismissal of Cannon and Alonzo from the proceedings, averring that both were guilty of malice in the criminal proceedings against him. Our law regarding malicious prosecution is well established: An action for malicious prosecution in a criminal proceeding lies in all cases where there is a concurrence of the following elements: (1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; (6) damage conforming to legal standards resulting to plaintiff. * * * * * * The individual interest in freedom from unjustifiable litigation and the social interest in supporting a resort to law have traditionally been balanced by the requirement that the plaintiff must prove these essential elements to establish a malicious prosecution action against an accuser. * * * * * * Chief among these elements is the requirement that the plaintiff must sustain the burden of proof that the criminal proceeding was initiated or continued without `probable cause'. Probable cause for arrest exists when facts and circumstances within the knowledge of the arresting officer and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. The appearances must be such as to lead a reasonable person to set the criminal process in motion; unfounded suspicion and conjuncture will not suffice. Verification may be required to establish probable cause where the source of the information seems unworthy, or where further information about a serious charge would be readily available. The reputation of the accused, his opportunity to offer explanation, and the need for prompt action, if any, are all factors in determining whether unverified information furnishes probable cause. Second of importance in actions of malicious prosecution is the element of defendant's malice. However, malice does not submit readily to definition. It means something more than the fictitious `malice in law' which has been developed in defamation cases as a cloak for strict liability. There must be malice in fact. Any feeling of hatred, animosity, or ill will toward the plaintiff, of course, amounts to malice. But it is not essential to prove such ill will. Malice is found when the defendant uses the prosecution for the purpose of obtaining any private advantage, for instance, as a means to extort money, to collect a debt, to recover property, to compel performance of a contract, to `tie up the mouths' of witnesses in another action, or as an experiment to discover who might have committed the crime. Malice may be inferred from the lack of probable cause or inferred from a finding that the defendant acted in reckless disregard of the other person's rights. Since the determination of malice in a malicious prosecution case is a question of fact, the issue is to be determined by the trier of fact unless only one conclusion may reasonably be drawn from the evidence. On appellate review such a finding is reversible only if manifestly erroneous or clearly wrong. [Emphasis supplied, citations omitted]. Miller v. East Baton Rouge P. Sher. Dept., 511 So.2d 446 (La.1987); Spearman v. Harris, 542 So.2d 606 (La.App. 5 Cir.1989). In dismissing Cannon, the trial court stated as follows: He was convinced in '86 and he is convinced today that Nathaniel Joseph *842 robbed him and kidnapped him. Malice would be a false statement to that effect then and now and if there's any evidence of that I want to hear it. He identified him then, he identified him the day before yesterday and I suspect if he takes the witness stand he is going to identify him again. Is the mistake malice, I think not. * * * * * * He has got eyes. That's what he is relying on, his eyes. That's the man that robbed me. I saw his face. I looked at him for 20 minutes. He slapped me in the face. He drove me around. I saw him. Now, honest erroneous belief in the identity of a criminal in my view creates no civil liability. If you can proof (sic) to me that he is being dishonest or there's some malice or some reason for malice, I'll listen to you. What you are suggesting is that if a citizen in the exercise of his duty apprehending criminals identifying criminals if he is an eye witness to a crime answering questions of police, specifically is this the man who robbed you, if he is wrong if he is shown to be wrong, he therefore buys civil monetary liability. I don't believe that's the law. * * * * * * But there's got to be evidence before this jury upon which it can reasonably become malice and the honest mistake of believe (sic) is not that. He makes a mistake and let's assume he makes a mistake. He is not liable unless it's done maliciously and I can't see any evidence upon which this jury could bring back a verdict against Cannon as of this point in time. Absence of malice is fatal to an action for malicious prosecution, which requires that all elements enunciated in Miller, supra, concurs. Miller, supra; also Johnson v. Pearce, 313 So.2d 812 (La.1975); O'Conner v. Hammond Police Dept., 439 So.2d 558 (La.App. 1 Cir.1983). In addition to the above quoted "reasons" and testimony the entire record clearly shows that the trial court was absolutely correct in its finding that Cannon was without malice when he identified Joseph as the perpetrator. Cannon's initial identification to Thompson was of a young black male, whose height he could not determine precisely because the robber was either bending over or sitting down the whole time. Cannon testified at trial that he told Officer Thompson that the perpetrator also had short hair and a pencil thin mustache, and army fatigues or camouflage pants; however, he did not watch what the officer was writing down. Joseph makes much over the discrepancy between (green) or army fatigues and camouflage (fatigue) pants. However, it is apparent from reading the record that Cannon used the terms interchangeably, as did several other witnesses including police officers. Moreover, the issue is something of a red herring because of the overwhelmingly positive in person, identification made by Cannon throughout the proceedings and the entire history of the case. This identification had little to do with whether Joseph wore green fatigues or army fatigues or camouflage pants. He was wearing neither when Cannon identified him. As far as the "clean-shaven" description in the Thompson report is concerned, a "pencil-thin" mustache is considered by the police (according to their testimony) as being clean shaven, and we do not find such a description to be out of order or inapplicable or having anything to do with an improper or mistaken identification. Joseph was wearing the mustache when he was positively identified in person by Cannon approximately one hour after the crime. Cannon was positive and unwavering in his identification from the day of the crime through his last day in court. Cannon was previously unacquainted with Joseph, and there was no showing of hatred or ill will on his part. Moreover, for reasons discussed hereafter, malice could not be inferred from a lack of probable cause (as mentioned hereinabove) or from any evidence adduced at trial on the matter. With regard to probable cause, it has been found as follows: *843 The crucial determination in regard to the absence of probable cause is whether the defendant had an honest and reasonable belief in the guilt of the plaintiff at the time charges were pressed. Jones v. Soileau [448 So.2d 1268 (La. 1984)] supra. [Emphasis supplied]. Stark v. Eunice Superette, Inc., 457 So.2d 291 (La.App. 3 Cir.1984). As delineated above, Cannon did, indeed, have such an honest and reasonable belief in the guilt of plaintiff. Therefore, since two of the necessary elements for an action in malicious prosecution are lacking, plaintiff can not recover from Cannon. Stark, supra. DIRECTED VERDICT This Court has discussed the criteria for a directed verdict in Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504 (La. App. 5 Cir.1984) wherein we stated as follows: The court in Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4th Cir.1982) affirmed a motion for directed verdict made by plaintiff in a trial by jury. As to the proper standard, that court pronounced, and we adopt, the following: The standard for granting a directed verdict (Art. 1810(A) of the Louisiana Civil Code Procedure) was set out in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979), whereby the court stated: `[The statute allows] the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.' The court, in Campbell, further states that the standard of proof is to be based on the Federal standard and cites the language in Boeing Co. v. Shipman, 411 F.2d 365 (U.S. 5th Cir. 1969) in enunciating the state standard to be used: On motion for directed verdict and for judgment notwithstanding the verdict that Court should consider all of the evidence—not just that evidence which supports the non-mover's case— but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions (sic) is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. Villaronga v. Gelpi Partnership Number 3, 536 So.2d 1307 (La.App. 5 Cir.1988). We agree with the trial court that there was no evidence before the jury upon which it could reasonably base a finding of malice on the part of Cannon. His honest and reasonable belief in the guilt of plaintiff also compels a finding of probable cause. The trial court has much discretion in determining whether or not a motion for a directed verdict should be granted. Barnes v. Thames, 578 So.2d 1155 (La.App. 1 Cir.1991); Broussard v. Missouri Pac. R. Co., 376 So.2d 532 (La.App. 3 Cir.1979). We find no abuse of discretion here with regard to the trial judge's dismissal of Cannon. Plaintiff contends in his petition and in brief that (in an effort to convict Joseph) Officer Alonzo "perjured" himself at Joseph's criminal trial when he testified that Toni Ann Joseph (plaintiff's girlfriend, now his ex-wife) had stated that plaintiff had left their apartment for a while on the morning of the robbery because—plaintiff urges—that the testimony of Toni Joseph at the civil trial flatly contradicted that of Alonzo. We disagree. Alonzo testified very positively at the civil proceeding that *844 Mrs. Joseph made the statement to him, while Mrs. Joseph denied it. This is merely a contradiction of each other's testimony on a given point as often happens and, it is certainly not proof of perjury. In fact, the trial judge chose to believe Officer Alonzo. We also find that the allegation of perjury against Officer Alonzo also has no merit whatsoever and was not proven by any evidence at trial. In the interrogatories submitted to the jury, the jury found Alonzo at fault in the amount of 48% in the "malicious prosecution which Nathaniel Joseph experienced." Under Lemire v. New Orleans Public Service Inc., 458 So.2d 1308 (La.1984), the judge was not bound by the jury's findings with regard to the suit against the City; and in his own judgment, the judge found that plaintiff had failed to prove the elements of malicious prosecution against Alonzo. It is well settled that a court of appeal may not set aside a finding of fact by a trial court or a jury in the absence of `manifest error' or unless it is `clearly wrong,' and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. * * * * * * When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. [Citations omitted]. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990). Also Sprueill v. Ludwig, 568 So.2d 133 (La.App. 5 Cir.1990). Accordingly, we find no manifest error in the trial judge's determination of credibility in favor of Alonzo and heartily agree. As with Cannon, the plaintiff utterly failed to prove the elements of malice and lack of probable cause essential to his action for malicious prosecution against Alonzo. LSA-C.Cr.P. art. 213 states, in pertinent part: A peace officer may, without a warrant, arrest a person when: * * * * * * (2) The person to be arrested has committed a felony, although not in the presence of the officer; (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. Acting on what certainly appeared at the time and still appears to be the honest complaint of Cannon, Alonzo was well within his statutory authority to arrest Joseph and had reasonable and probable cause to do so. Reasonable cause to believe the person arrested has committed an offense exists when the facts and circumstances within the arresting officer's knowledge, and of which he has reasonable trustworthy information, are sufficient to justify an average man of caution in the belief that the person to be arrested has committed or is committing an offense. Richard v. State, through Department of Public Safety [436 So.2d 1265 (La.App.1983) ] supra; State v. Phillips, 347 So.2d 206 (La.1977). Whether reasonable cause exists is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. State v. Drew, 360 So.2d 500 (La.1978). Johnson v. State Through Dept. of P. Safety, 451 So.2d 104 (La.App. 3 Cir. 1984). It is clear from the record on appeal that Officer Alonzo acted properly at all times in this case. He acted on the good faith complaint of a citizen in searching for and participating in the arrest of Joseph, and in his testimony at the criminal trial. The court obviously decided the credibility issue in his favor, supra, and because of *845 this there remains no basis for an action against the officer. In the absence of any evidence to suggest that Alonzo acted intentionally and with malice, and without probable cause, to arrest or attempt to improperly secure the conviction of plaintiff, we find no manifest error in the determination of the trial judge that plaintiff failed to prove his case against Alonzo. Plaintiff's assignments of error are without merit. B. ALLEGED NEGLIGENCE OF THE CITY RE: OFFICER THOMPSON In his reasons for judgment, the trial court stated: ... the Court finds the City to be at fault and responsible for plaintiff's damages. The testimony of plaintiff's expert, James D. White, a professor of criminal investigation and police operation at Florida State University, was uncontroverted and established that the City was negligent in its procedure of allowing a probationary officer to take an initial report from a victim of a crime rather than having an experienced officer to take the report. [Emphasis added]. Initially, we note that the testimony of Dr. White was directly controverted by testimony by Detective James Steinkampt, a 24 year veteran of the New Orleans Police Department who was offered by the City and qualified by the court as an expert in the field of armed robbery investigation. Detective Steinkampt testified that the practice in this case, that of having Officer Thompson, under the general supervision of his field officer, participate in writing the initial police reports, was standard operating procedure here. There is nothing improper in this method, since the police report is essentially a simply compilation anyway of work done by the rookie (Thompson) and the field training officer. Arresting Officer Howard Martin wrote the primary supplemental report which is in far more detail and more important to the case. At the preliminary hearing Thompson did testify briefly but only to the effect that he did write the initial report; and it was Officer Martin who chiefly testified as to probable cause in the criminal case. With regard to an action in negligence or fault under LSA-C.C. art. 2315, et seq., our Supreme Court has given us the following analysis: We have characterized `duty-risk' analysis as the process to be employed in determining whether liability exists under the facts of a given case. In making the requisite analysis four questions are to be considered: (1) Was the conduct in question a cause-in-fact of the resulting harm? (2) What, if any, duties were owed by the respective parties? (3) Were the requisite duties breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Mart v. Hill, 505 So.2d 1120 (La.1987). In this particular case, the harm alleged by plaintiff is his arrest and trial on charges of armed robbery and the accompanying embarrassment, humiliation and mental and physical anguish he suffered. The question is then, was the procedure of allowing an initial report to be written by Officer Thompson a "rookie," a cause in fact of that harm? At trial, Officer Alonzo testified that he was present when Mr. Cannon first reported the robbery, that he (Alonzo) took down written notes of Cannon's description and broadcast a description of the automobile and the perpetrator and then left the station to try to catch the robber. Joseph's initial detainment was based on the description Alonzo had and had broadcast; and he was arrested on the strength of Cannon's unwavering in person identification at the scene of the arrest. Thompson had remained *846 at the station with Cannon to complete the initial report. Professor White testified that there was nothing to indicate that Thompson did not write answers given to him by Cannon. He admitted that the location of the automobile when found, the unexplained delay of the plaintiff in answering the door, and the positive identification of plaintiff were all inculpatory. Detective Steinkampt testified that the chief inculpatory fact in the documents which he reviewed was the positive identification by Cannon. It is clear throughout these proceedings that Joseph was not arrested until after Cannon positively personally identified him at his apartment within one hour or so of the commission and the reporting of the crime. Cannon's identification was the key evidence throughout, along with the immensely strong corroborating and inculpatory evidence consisting of the location of the car with its engine still warm, the incriminating information from Steve Manning verifying that Joseph frequently wore army fatigues and a gray baseball cap like those worn by the robber, and the fact that Joseph answered the door wearing such a baseball cap one to two hours after the robbery. We are unable to find that the report written by Thompson initiated or even had anything to do with the criminal proceedings against Joseph. The report bears no relation whatsoever to Cannon's identification of the car and robber. Therefore, assuming that the City was somehow negligent in permitting Thompson to write the initial report, such negligence is positively not a cause in fact of the damages allegedly suffered by Joseph. In addition, Alonzo himself, not Thompson, jotted down the first descriptions and information given by Cannon and this was the information broadcast by Alonzo, not Thompson; and this was also the description of Joseph which was given to Steve Manning in response to which he gave the information which led to the arrest of Joseph in the following few minutes. If there was any incorrect description of Joseph that resulted in his arrest and trial, (although we do not find this to be so) the mistake was caused by the fault of Cannon or Officer Alonzo—not Officer Thompson. Trying to pin the blame for Joseph's alleged harm on Officer Thompson also completely ignores these facts all of which had their part in Joseph's being charged with Armed Robbery and the subsequent trial: (1) The District Attorney evaluated all the information regarding Joseph, interviewed Cannon three times and then this office filed charges of armed robbery against Joseph. (2) Criminal District Judge Shirley Wimberly, at a preliminary hearing, and after hearing all the evidence, found that there was probable cause to arrest and charge Joseph with the armed robbery of Cannon and he further denied Joseph's motion to suppress the identification of Joseph. If nothing else, these actions of those duly constituted legal officers of the State in the proper exercise of their duties completely exonerated Martin, Alonzo and Thompson. These decisions by the District Attorney and the judge said, in effect, that the officers had probable cause to arrest Joseph and acted correctly in so doing. As our Supreme Court has interpreted the issue, conduct is a cause in fact of harm to another if it was a substantial factor in bringing about the harm. Thomas v. Missouri Pacific R. Co., 466 So.2d 1280 (La.1985). This Court has found as follows: Negligent conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm; that is, if the harm would not have occurred without it. Dixie Drive it Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). A defendant's conduct must be a necessary antecedent of plaintiff's harm but it need not be the sole cause contributing to the harm; if the plaintiff can show that he probably would not have suffered injury absent defendant's conduct, he has carried his burden of proof relative to cause in fact. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171 (La.1977). [Emphasis supplied]. Arthur Dooley & Sons, Etc. v. Johnson, 422 So.2d 1270 (La.App. 5 Cir.1983). *847 For all the reasons discussed above and considering all the evidence together, we find that Joseph would have been arrested and tried for the armed robbery of Cannon whether or not Thompson had participated at all in the events. Therefore, it appears obvious that the negligence, if any, of the City relative to Thompson and the initial report of Thompson were not a legal cause of the alleged harm which plaintiff claims. Further, a review of the entire record convinces us that no negligence of any kind attributable to the City of New Orleans occurred in this case. Therefore, we hold that the trial judge committed manifest error and was clearly wrong in finding liability on the part of the City. Accordingly, that finding must be reversed. Steve Manning and the Willows did not appeal, so the judgment is final as to them. DECREE For the foregoing reasons, the judgment appealed from is reversed insofar as it finds the City of New Orleans liable unto plaintiff in any manner for anything and plaintiff's action is dismissed. As a consequence, the petition for intervention must also be and is hereby dismissed. In all other respects, the judgment is affirmed. All parties are to pay their own costs. AFFIRMED IN PART, REVERSED IN PART.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 09-1667 ___________ James Lockhart, * * Appellant, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. CRST, Inc., CRST International, * Inc., and CRST Van Expedited, Inc., * [UNPUBLISHED] * Appellees. * ___________ Submitted: February 10, 2010 Filed: April 1, 2010 ___________ Before LOKEN,1 Chief Judge, GRUENDER and BENTON, Circuit Judges. ___________ BENTON, Circuit Judge. James O. Lockhart, II, an African-American male, was employed by CRST, Inc., as a truck driver. After being terminated, he sued CRST claiming discrimination based on race. The district court2 granted summary judgment for CRST, ruling that 1 The Honorable James B. Loken stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2010. He has been succeeded by the Honorable William Jay Riley. 2 The Honorable Jon Stuart Scoles, United States Magistrate Judge for the Northern District of Iowa, sitting with the consent of the parties pursuant to 28 U.S.C. § 636(c). Lockhart failed to establish a prima facie case. Having jurisdiction under 28 U.S.C. § 1291, this court affirms. I. In 2004, Lockhart was paired with a co-driver named Ulysses Thomas (also an African-American male). On their first run, Lockhart and Thomas argued over minor issues (for example, Thomas “became aggressive” when Lockhart woke him up for his turn to drive; Thomas got mad when Lockhart moved his food and belongings from the floor of the truck). Lockhart called CRST and the police, who did nothing the first time. The friction continued. Lockhart called police again. According to Thomas, Lockhart wanted the bottom bunk and “pulled a cork skrew [sic] on” Thomas, so Thomas called the police. According to Lockhart, Thomas came at him (and the police) with a hammer and was restrained. Although CRST requested witness statements and police reports from both men, the only documentation produced was a witness statement that said Thomas was acting belligerent. Lockhart was not paired with Thomas again, and later got a restraining order against him. In March 2005, Lockhart’s co-driver backed into another truck at a truck stop. Another driver, William Maynard, an independent contractor working for CRST, apparently saw the collision. Lockhart noticed Maynard standing outside the truck stop, jotting down information about Lockhart’s truck. Lockhart confronted him, saying: “I don't know how long you been driving a truck, but I do know there’s drivers out here that would get highly upset for what you just did.” Maynard responded: “Oh, what was that?” Lockhart continued: “Well, you came over here and you’re writing down – You didn't see anything. You’re writing down information and stuff on trucks and stuff like that. There’s drivers that get upset about that, take that the wrong way and may want to hurt you or jump on you. You may want to be careful about that.” Maynard got upset, directing racial slurs and curse words at Lockhart. Lockhart claims Maynard balled up his fist to launch a punch. Lockhart punched Maynard in the face. Police were called, who directed Maynard to stop using the racist words. -2- Lockhart claims he acted in self defense. Two witnesses said Maynard started the incident. Neither party pressed charges. CRST's safety manager spoke with both drivers. Lockhart admitted punching Maynard in the face. He was terminated within two hours. In his affidavit, the safety manager said he “considered it significant” that Lockhart had previously been involved in a “fighting incident with a co-driver, as documented by Mr. Lockhart's supervisor at the time. . . .” Lockhart sued in district court, alleging race discrimination in violation of Title VII of the Civil Rights act of 1964. CRST moved for summary judgment, which the magistrate judge granted, finding that Lockhart failed to make a prima facie case of discrimination, and alternatively that CRST provided a legitimate, non-discriminatory reason for Lockhart’s termination which he could not establish was pretextual. Lockhart appeals, arguing he established a prima facie case and that CRST's stated reason for terminating him was pretextual. II. This Court reviews a district court's grant of summary judgment de novo. Jackson v. United Parcel Service, Inc., 548 F.3d 1137, 1140 (8th Cir. 2008). “In doing so, we apply the same standard as the district court, viewing the evidence in the light most favorable to the nonmoving party and giving that party the benefit of all inferences that may reasonably be drawn.” Id. “Summary judgment should be granted if ‘there is no genuine issue as to any material fact and [ ] the movant is entitled to judgment as a matter of law.’” Id. quoting Fed. R. Civ. P. 56(c). Because Lockhart presents no direct evidence of racial discrimination, this court applies the analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 729 (1973). Lockhart has the initial burden of establishing a prima facie case of discrimination. See Wimbley v. Cashion, 588 F.3d 959, 961 (8th Cir. 2009). If he -3- establishes a prima facie case, then the burden shifts to CRST to articulate a legitimate, non-discriminatory reason for its action. See id. If CRST articulates such a reason, the burden returns to Lockhart to prove that the proffered reason is pretextual. See id. To establish a prima facie case of discrimination, Lockhart must show that (1) he is a member of a protected class; (2) he was meeting his employer's legitimate job expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated differently. Id. at 962. The first three elements of Lockhart's prima facie case are not disputed. Lockhart is an African-American, his overall job performance was “average,” and he was terminated. CRST argues that Lockhart fails to meet the final element of his prima facie case because he does not show that similarly-situated white employees were treated more favorably. CRST submitted the records of a number of white employees who were terminated for fighting. Lockhart tries to distinguish these employees from himself in terms of experience, performance, and other factors. However, this does not establish that similarly situated employees outside the protected class were treated differently. At best, it establishes that non-similarly situated employees outside the protected class were treated similarly. Lockhart next attempts to use as comparators employees who were attacked by their co-drivers. He argues that since CRST considered his previous fighting incident significant in the decision to terminate him, people who were assaulted by their co- driver, were white, and were not disciplined are similarly situated employees outside the protected class who were treated differently. However, Lockhart was not terminated simply for being involved in a “fighting incident.” He was terminated for punching someone in the face after having previously been involved in a fighting incident. Lockhart presents no evidence that any CRST employee so situated was treated differently. -4-  Finally, Lockhart points to two employees who assaulted others, and thus were similarly situated. In September 2005, Todd Bullock, who is white, slapped his (co- driver) wife after she assaulted him with a knife. According to CRST’s Termination Record, both Bullock and his wife were terminated for this incident, so they were not treated differently than Lockhart. Dean Allen, also a white male, was also “terminated because he assaulted his co-driver,” according to the Termination Record. The only CRST employees who were similarly situated to Lockhart (assaulted someone) but were outside the protected class were also terminated. Taking the facts most favorably to Lockhart, he fails to establish that similarly situated employees outside the protected class were treated differently. Lockhart fails to make a prima facie case of discrimination under the McDonnell Douglas framework.3 III. The judgment of the district court is affirmed. ______________________________ 3 This court need not address whether CRST articulated a non-discriminatory reason for its action, or whether that reason was pretextual. -5- 

544 F.Supp. 297 (1982) SIXTH GEOSTRATIC ENERGY DRILLING PROGRAM 1980, Seventh Geostratic Energy Drilling Program 1980, and Eighth Geostratic Drilling Program 1980, Plaintiffs, v. ANCOR EXPLORATION COMPANY, Ancor Petroleum, Inc., Harry E. McPhail, Jr., Docko, Inc., Bluebell Oil and Gas, Inc., Ancor Exploration Co. 1980 Drilling Venture, A/S Docko Corporation, and Ole Gunnar Selvaag, Defendants. FIRST AND SECOND ANCOR-GEOSTRATIC DRILLING PARTNERSHIPS 1980, Plaintiffs, v. SIXTH AND SEVENTH GEOSTRATIC ENERGY DRILLING PROGRAMS 1980, Robert S. Sinn and Jan S. Mirsky, Defendants. Nos. 81-C-576, 81-C-577 and 81-C-836. United States District Court, N. D. Oklahoma. May 26, 1982. As Amended June 21, 1982. *298 Mack Braly, Tulsa, Okl., Paul C. Kurland, New York City, for Sixth, Seventh and Eighth Geostratic Drilling Programs 1980. James L. Kincaid, Tulsa, Okl., Jim K. Goodman, Oklahoma City, Okl., for Ancor Exploration Co., Ancor Petroleum, Inc., Harry E. McPhail, Jr., Docko, Inc., Bluebell Oil and Gas, Inc., and Ancor Exploration Co. 1980 Drilling Venture. ORDER BRETT, District Judge. This matter came on for hearing on May 4, 1982 on defendants' Motion to Dismiss. For the reasons set forth below, the motion is denied. In support of their motion, defendants advance essentially two arguments. First, defendants contend First Ancor-Geostratic Drilling Partnership 1980, Second Ancor-Geostratic Drilling Partnership 1980 and Third Ancor-Geostratic Drilling Program 1980 (hereinafter referred to as "the drilling partnerships" or "the unjoined parties") are indispensable parties to the instant action, and therefore must be joined as plaintiffs or defendants. Second, defendants assert the joinder of these additional parties, all of which are limited partnerships, will destroy diversity of citizenship and thus deprive this Court of subject matter jurisdiction over the instant action. Plaintiffs contend the drilling partnerships are not indispensable parties, but even if they are determined to be such, their joinder will not defeat diversity of citizenship. I The Court's review of plaintiffs' Second Verified Amended Complaint discloses numerous claims alleged against the drilling partnerships. In addition, plaintiffs have moved for the appointment of a receiver over the assets of the drilling partnerships. Plaintiffs argue, however, inasmuch as the parties who allegedly are in control of the assets of the drilling partnerships and constitute the general partners of such partnerships are already parties to this action, the Court can provide full relief to plaintiffs without adding the drilling partnerships as parties. Further, plaintiffs contend the addition of the drilling partnerships as parties will afford the Court no greater latitude in fashioning an order of relief than already exists by virtue of the parties presently named in the action. Rule 19(a) of the Federal Rules of Civil Procedure provides in pertinent part as follows: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his *299 absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. In the instant matter, defendants have painstakingly set forth in Appendix A to their brief in support of their motion the claims alleged against or the relief sought from or on behalf of the unjoined parties. Having reviewed such appendix and the Second Verified Amended Complaint, the Court concludes it need not individually consider each claim against the unjoined parties to reach the conclusion that such parties are indispensable to the maintenance of this action. Viewed in their totality, the claims for relief asserted against the unjoined parties are so substantial that the Court finds complete and effective relief cannot be fashioned in this case without the joinder of the unjoined parties. Of particular significance at this stage of the case is plaintiffs' motion for appointment of a receiver of the assets of the drilling partnerships. Although plaintiffs maintain these assets are currently under the control of some of the defendants and, therefore, the receivership proceeding is for the benefit of the unjoined parties as well as the plaintiffs, this allegation, even if proved, would not alter the basic fact plaintiffs are seeking to impress a receivership on entities not parties to this action. The Court concludes this request for relief alone is sufficient to require the joinder of the drilling partnerships. Similarly, although plaintiffs assert much of the relief requested will, if granted, actually run in favor of the drilling partnerships, the Court concludes, primarily on the basis of the motion for appointment of a receiver, the drilling partnerships must be joined as party defendants. In summary, in accordance with Rule 19(a), the Court concludes the absence of the drilling partnerships as parties to this action would impair their ability to protect their interests, especially in light of the motion for appointment of a receiver of their assets. See Wright & Miller, Federal Practice and Procedure: Civil § 1604.[1] II Having decided the drilling partnerships must be added as parties defendant herein, the Court is faced with the question whether such joinder defeats diversity of citizenship and thus deprives this Court of jurisdiction over the subject matter of this action. The Court concludes the joinder of the drilling partnerships does not defeat diversity of citizenship for the reasons set forth below. *300 As may be observed from the chart below[2], Messrs. Sinn and Mirsky are residents of New York and Florida, respectively, and each is a general partner in the investor partnerships.[3] In addition, each is a limited partner in the drilling partnerships. The Court having determined the drilling partnerships must be added as parties defendant in this action, the question becomes whether the presence of Sinn and Mirsky as limited partners of the defendant drilling partnerships operates to defeat diversity of citizenship between the parties plaintiff and the parties defendant. The inquiry then is whether the citizenship of a limited partnership is determined by reference to the citizenship of its general partners alone, or whether it is determined by reference to the citizenship of the general partners as well as the citizenship of the limited partners. Although acknowledging the existence of authority to the contrary, defendants contend the better reasoned rule is that stated by the Court of Appeals for the Third Circuit in Carlsberg Resources Corporation v. Cambria Savings and Loan Association, 554 F.2d 1254 (3rd Cir. 1977). In Carlsberg, the Court faced the precise question before this Court and concluded the citizenship of limited partners must be considered in determining whether the requisite diversity exists. As stated by that Court, the primary policy concerns underlying its holding were judicial economy and federalism. 554 F.2d at 1262. The Carlsberg case features a thorough dissenting opinion written by Judge James Hunter III. In dissent, Judge Hunter examined the realities of the limited partnership as it exists in the modern-day business world and concluded the citizenship of limited partners need not be considered in determining whether diversity exists. Specifically, Judge Hunter addressed the distinction between general and limited partnerships: In a general partnership, each partner is jointly and equally responsible for the organization affairs. Each can sue on behalf of the partnership. Thus when a general partnership brings suit in federal court, alleging diversity jurisdiction, the court turns to state law and determines that each partner is jointly liable and responsible; therefore, each must be `counted' for diversity purposes. 554 F.2d at 1263. Turning then to state law and noting every state and the Virgin Islands have adopted the Uniform Limited Partnership Act, he observed limited partners are not proper parties to proceedings by or against the limited partnership under section 26 of the Act. He thus concluded, if limited partners are not proper parties to actions by or against the limited partnership, *301 their citizenship should not be considered in determining diversity. Defendants also advance the case of Grynberg v. B. B. L. Associates, 436 F.Supp. 564 (D.Col.1977) in support of their motion. In Grynberg, the district court followed the holding in Carlsberg primarily on the basis that The question of federal jurisdiction cannot always be decided according to what various states determine the state substantive law should be. 436 F.Supp. at 568. Grynberg expressed the additional concern that in looking to state law pursuant to Rule 17, Fed.R.Civ.P., dealing with capacity to sue for diversity purposes the Court would be impermissibly expanding the court's jurisdiction in contravention of Rule 82, Fed.R.Civ.P. Thus, although noting the popularity of limited partnerships and their "quasi-corporate characteristics", the Court concluded it was for Congress and not the courts to "add to the burden of the federal docket." 436 F.Supp. at 568. The issue here presented was first addressed by the Court of Appeals for the Second Circuit in Colonial Realty Corporation v. Bache & Co., 358 F.2d 178 (2nd Cir. 1966). Without elaborate discussion, that Court decided the lower court was correct in finding [W]here, as here, there was diversity between the plaintiff and all the general partners of the defendant, identity of citizenship between the plaintiff and a limited partner was not fatal because under the applicable New York statute a limited partner `is not a proper party to proceedings by or against a partnership, except where the object is to enforce a limited partner's right against or liability to the partnership.' [citation omitted] In the absence of a claim of insolvency of the partnership, [citations omitted] a suit brought against a New York partnership must thus be considered to be against the general partners only and identity of citizenship between a limited partner and the plaintiff does not destroy diversity. 358 F.2d at 184.[4] Neither the United States Supreme Court nor the Court of Appeals for the Tenth Circuit has had occasion to pass on the issue, and it appears the only Court of Appeals, other than the Second and Third as noted above, to have commented directly on the question is the Fifth Circuit in Lee v. Navarro Savings Association, 597 F.2d 421 (5th Cir. 1979), aff'd 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980). Although the facts in Lee concerned whether the citizenship of beneficiary shareholders of a business trust should be considered in determining diversity, the Court addressed the same question relative to limited partners: The trust here is analogous to a limited partnership, and the citizenship of its beneficiary shareholders should not be counted in determining the existence of diversity of jurisdiction. 597 F.2d at 425. The Court went on to quote from an article in the University of Chicago Law Review, Comment, Limited Partnerships and Federal Diversity Jurisdiction, 45 U.Chi.L.Rev. 384, 407: Corporate shareholders and trust beneficiaries, in contrast, have only `equitable' interests in their respective entities. Because limited partners do not enjoy the requisite control over the partnership, they have only an `equitable' interest in proceedings brought by or against the partnership, and thus, like corporate shareholders and trust beneficiaries, should not be counted for diversity purposes. The result in Colonial Realty, far from expanding the diversity jurisdiction, is but an application of a principle underlying the Supreme Court's diversity jurisdiction decisions over the past 125 years. 597 F.2d at 426 (emphasis in original). Thus, the Fifth Circuit appears to have adopted the Colonial Realty rationale. Other than the Grynberg decision discussed above, the only published opinion from a court in the Tenth Circuit dealing *302 with the issue presented here is that in Rocket Oil & Gas Company v. Arkla Exploration Company, 435 F.Supp. 1303 (W.D. Okla.1977). Without a great deal of exposition, Judge Daugherty found the citizenship of a limited partnership is dependent upon the citizenship of its general partners.[5] 435 F.Supp. at 1305. Rule 17(b) of the Federal Rules of Civil Procedure provides in pertinent part: In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held.... In Carlsberg Resources, the Court expressed apprehension at the notion state law regarding capacity to sue might be used to expand federal court jurisdiction in violation of Rule 82, Fed.R.Civ.P.: As we view it, jurisdiction is the most elemental concern of the federal courts in evaluating the cases which come before them. By contrast, issues pertaining to the capacity to sue, while hardly lacking in significance, are deserving of consideration only after the jurisdiction of the federal court has been firmly established. 554 F.2d at 1260 (emphasis in original). In his dissent, Judge Hunter took issue with the majority's reasoning: According to the majority view, the court must examine the parties' citizenship as a preliminary issue, and only then does capacity to sue become relevant. I fail to see, though, how a court knows whose citizenship to count without first determining who the parties are. By `parties' I mean real parties, those who have the capacity to bring suit, and in some cases where the categories diverge, those who are the real parties in interest. No one can examine citizenship in vacuo. Because limited partnerships are unique, albeit popular, creatures of (uniform) state law, I do not see how we can ignore the state law that shapes them. We must use state law on members' rights and responsibilities before we can rationally decide whom to `count' for diversity. Cf. Miller v. Perry, 456 F.2d 63 (4th Cir. 1972) (deciding that administrator under state law is merely a nominal plaintiff); Bishop v. Hendricks, 495 F.2d 289 (4th Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 639, 42 L.Ed.2d 653 (1974) (same). Thus I am not troubled, as the majority purports to be, by Judge Friendly's decision in Colonial Realty, supra, to engraft `capacity-to-sue rules to the traditional requirements of diversity jurisdiction.' Indeed, I can envision no other sensible way to proceed. 554 F.2d at 1264-4. Having reviewed the discussions set forth above, the Court concludes the better reasoned, and hence, the more persuasive analysis is that of Judge Hunter. Specifically, although there can be no dispute capacity to sue and diversity jurisdiction present distinct problems, in the context of the question here presented, the practical significance of the distinction is to inject a "which came first, the chicken or the egg?" dichotomy. The Court further finds itself in the same quandary as that expressed by Judge Hunter in saying, "I fail to see, though, how a court knows whose citizenship to count without first determining who the parties are." Moreover, the Court finds unpersuasive Judge Arraj's statement in Grynberg regarding the "coincidental uniformity" of the state law of limited partnerships. *303 436 F.Supp. at 568 n.4. Were the Court today being asked to fashion a broad rule whereunder the states could limit or expand or otherwise affect federal jurisdiction, the concern expressed by Judge Arraj would be shared. That is not, however, the issue facing the Court. The fact remains indisputable that the law setting forth the parameters of the capacity to sue of limited partners is truly uniform throughout the nation, and it is in this context that the question is presented to the Court. The Court's conclusion is buttressed by the nominally different analysis employed by the Fifth Circuit in Navarro Savings Association. As discussed hereinabove, the Court there was concerned with, as the Court put it, "our real-party-in-interest analysis." 597 F.2d at 427. The same considerations are present whether trust beneficiaries or limited partners are involved, for as the Court explicitly stated, Because limited partners do not enjoy the requisite control over the partnership, they have only an `equitable' interest in proceedings brought by or against the partnership, and thus, like corporate shareholders and trust beneficiaries, should not be counted for diversity purposes. 597 F.2d at 426 (emphasis deleted). The question ultimately must be determined by the modern-day realities attending limited partnerships. It is clear a limited partner stands in a legal position more closely analogous to that of a corporate shareholder than to that of a partner in a general partnership or that of a member of an unincorporated association. The limited partner, similar to a shareholder, is generally liable only to the extent of his or her capital contribution. In addition, the limited partner may be said to have even less voice than the shareholder in managing or controlling the activities of the business entity because he or she lacks voting rights. The underlying rationale of section 26 of the Uniform Limited Partnership Act, that is restricting the right of the limited partner to sue or be sued on behalf of the limited partnership, is an extension of the shareholder parallel. See 54 Okl.St.Ann. § 167. Ultimately, the question of whose citizenship is to be considered in determining whether diversity exists must be resolved with reference to the basic purposes of diversity jurisdiction.[6] As Judge Hunter noted in his dissent in Carlsberg Resources, diversity jurisdiction is designed to provide "the assurance of impartiality to out-of-state litigants", and this Court agrees with Judge Hunter's further statement that the policies behind the congressional grant of diversity jurisdiction are well served by allowing these limited partnerships access to federal courts when all the general partners are diverse in citizenship from all the opposing parties. 554 F.2d at 1266. In examining the position occupied by limited partners vis-a-vis corporate shareholders and partners in a general partnership, the Court finds instructive the analysis employed by the Supreme Court in Navarro Savings Association v. Lee, 446 U.S. 458, 100 S.Ct. 1779, 64 L.Ed.2d 425 (1980). As discussed hereinabove, that case concerned the question whether the citizenship of the beneficiaries of a business trust is to be considered in determining diversity. The Court did not address the precise question before this Court and, indeed, did not even cite the principal cases discussed herein.[7]*304 Nevertheless, the Court finds helpful the factors examined by the Supreme Court in reaching its decision on the question there presented. The Court noted the trustees in Navarro were empowered to hold, manage, and dispose of property for others, held legal title to the assets of the trust, and were authorized to sue and be sued in their capacity as trustees. 446 U.S. at 464, 100 S.Ct. at 1783. Of perhaps greater import to the analysis here, the Court went on to note the trust beneficiaries had no voice in the initial investment decision of the trust and had no power to control the disposition of the lawsuit or to intervene in the affairs of the trust generally except in the most extraordinary situations. Id. at 464-5, 100 S.Ct. at 1783-84. It is thus apparent from the Court's discussion the degree of control possessed by the beneficiaries over the affairs of the trust, and particularly, the conduct of a lawsuit, is entitled to great weight in determining whether the citizenship of the beneficiaries is to be considered in determining diversity, at least under a real-party-in-interest analysis. In this regard, it is worthy of mention limited partners generally possess even less control over the affairs of the limited partnership than did the beneficiaries in Navarro.[8] Having read the Court's opinion in this way, the comments of Justice Blackmun in dissent must also be noted. In a footnote, Justice Blackmun, after acknowledging the positions of the Third and Second Circuits as expressed in Carlsberg Resources and Colonial Realty, respectively, comments that he reads the Court's opinion as expressing no view on the diversity of citizenship issue where one of the parties is a limited partnership. In the text of his dissent, however, Justice Blackmun notes he is particularly troubled by the Court's intimation that business trusts are to be treated differently from other functionally analogous business associations — partnerships, limited partnerships, joint stock companies, and the like. 446 U.S. at 475, 100 S.Ct. at 1789. Justice Blackmun concludes by stating, although he accepts the lower court's approach to determining whose citizenship to count for diversity purposes, he nevertheless feels the bondholders in Navarro possessed such pervasive control over the affairs of the trust that their citizenship must be considered in deciding the question. Id. at 476, 100 S.Ct. at 1789. Having carefully examined the Court's opinion in Navarro, this Court acknowledges and agrees with Justice Blackmun's observation that the majority expressed no view on the diversity issue where one of the parties is a limited partnership. It is difficult to reconcile this view with Justice Blackmun's comment regarding the majority's "intimation that business trusts are to be treated differently from other functionally analogous business associations", limited partnerships in particular. The Court has searched the majority's opinion in vain for such an intimation of disparate treatment. The core of the Court's opinion is expressed succinctly: They [the trustees] have legal title; they manage the assets; they control the litigation. In short, they are real parties to the controversy. 446 U.S. at 465, 100 S.Ct. at 1784. Were this standard applied to limited partnerships, it appears the general partners would stand in the position of the trustees in Navarro,[9] and, hence, would be considered the real parties in interest. *305 Having dissected the Navarro opinions in the foregoing fashion, one further observation is required. As noted above, it is readily apparent the majority did not address the precise issue before this Court; however, the Court did affirm the decision of the Court of Appeals which did address the citizenship of limited partnerships. Nowhere in the Supreme Court's opinion is there an indication of dissatisfaction with the analysis employed by the Court of Appeals, and, in fact, the Supreme Court relied on a real-party-in-interest analysis in much the same way as did the Court of Appeals. This being so, and inasmuch as Justice Blackmun expressly accepted the approach utilized by the Court of Appeals, any analytical differences between the majority and Justice Blackmun would nevertheless appear to yield the same result, that is, only the citizenship of real parties in interest is to be considered on the issue of diversity citizenship. If this be the standard, only the citizenship of the general partners need be considered in the case at bar. The citizenship of the general partners of the drilling partnerships being completely diverse from that of the defendants herein, and the other parties being of diverse citizenship from one another, the Court has jurisdiction of the subject matter of this case pursuant to 28 U.S.C. § 1332. IT IS THEREFORE ORDERED First Ancor-Geostratic Drilling Partnership 1980, Second Ancor-Geostratic Drilling Partnership 1980, and Third Ancor-Geostratic Drilling Partnership 1980 are hereby directed to be added as parties defendant to this action. The Court having determined the drilling partnerships must be added as parties pursuant to Rule 19(a) of the Federal Rules of Civil Procedure, the plaintiffs are directed to cause process to be issued and served on the same within the time set forth in the Rules of this Court. IT IS FURTHER ORDERED defendants' Motion to Dismiss is hereby overruled. NOTES [1] The Court's conclusion that the joinder of the drilling partnerships does not operate to defeat diversity of citizenship under 28 U.S.C.A. § 1332 renders unnecessary an inquiry as to whether the action would have proceeded under Rule 19(b) of the Federal Rules of Civil Procedure. In this regard, the Court notes the equities of the situation preponderate strongly in favor of plaintiffs. In the agreed order of November 6, 1981, the parties addressed and stipulated to a number of jurisdictional issues. Although not brought to the attention of the Court at that time, it appears in retrospect the issue of the existence of complete diversity among the parties vel non was contemplated by the parties prior to entering into the stipulations recited in that order. Of course, the parties cannot confer jurisdiction by stipulating to the existence of subject matter jurisdiction in this or any other court. Thomas v. Board of Trustees, 195 U.S. 207, 25 S.Ct. 24, 49 L.Ed. 160 (1904). A fair reading of the stipulations entered into in the order of November 6, 1981, however, leads the Court to conclude the parties at least thought the jurisdictional issues had been decided. Nor have the subsequent amendments of plaintiffs' complaint altered the jurisdictional facts extant on that earlier date. It appears reasonable to assume, as contended by plaintiffs' counsel at the hearing on the instant motion, plaintiffs would not have so willingly agreed to transfer the action pending in federal district court in New York State to this forum had they not been led to believe all jurisdictional issues had been resolved. [2] Ancor-Geostratic Drilling Partnership 1980 bears the same relationship to Seventh Geostratic Energy Drilling Program 1980 as that illustrated above between First Ancor-Geostratic Drilling Partnership 1980 and Sixth Geostratic Energy Drilling Program 1980; similarly, Third Ancor-Geostratic Drilling Partnership 1980 occupies an identical position relative to Eighth Geostratic Energy Drilling Program 1980. [3] The "investor partnerships" are Sixth Geostratic Energy Drilling Program 1980, Seventh Geostratic Energy Drilling Program 1980, and Eighth Geostratic Energy Drilling Program 1980. [4] The New York statute in question in Colonial Realty, N. Y. Partnership Law § 115, was identical to Section 26 of the Uniform Act. 358 F.2d at 183-4. [5] Defendants' contention Judge Daugherty's finding in this regard was merely dicta is not well taken. Although it is true the precise issue facing the Court was whether the citizenship of all members of the class in an alleged class action must be considered in determining diversity, the Court's conclusion with respect to the citizenship of a limited partnership was a necessary predicate to its ultimate decision regarding the citizenship of the class. This is so because the nominal plaintiff in Rocket Oil & Gas was a limited partnership and the alleged class consisted of the limited partners thereof. 435 F.Supp. at 1304-5. Defendants' further assertion that Judge Daugherty must have been unaware of the Carlsberg Resources case at the time he wrote the opinion in Rocket Oil & Gas, even if true, is of dubious value to this Court's consideration of the instant matter. It is worthy of mention, however, that Judge Daugherty specifically cited the Colonial Realty opinion as authority for the proposition advanced. See 435 F.Supp. at 1305. [6] The Court notes the rather unusual posture of the instant matter insofar as the alignment of the respective parties is concerned. Messrs. Sinn and Mirsky, as general partners of Sixth, Seventh, and Eighth Geostratic Energy Drilling Programs 1980, are aligned as plaintiffs while, at the same time, as Class B limited partners of First, Second, and Third Ancor-Geostratic Drilling Partnerships 1980, are represented on the defendants' side of the lawsuit as well. In any event, since Sinn and Mirsky as limited partners have no control over the actions of that limited partnership insofar as the bringing or conduct of a lawsuit is concerned, the fact that they are "on both sides" of the action does not argue for a rule different from that announced by the Court today. [7] The Court in Navarro decided the question before it on the basis of state and federal law applying exclusively to trustees and the unique legal position they occupy. [8] As the Court noted, The shareholders may elect and remove trustees; they may terminate the trust or amend the Declaration; and they must approve any disposition of more than half of the trust estate. [citations omitted.] No other shareholder action can bind the trustees. [citations omitted.] 446 U.S. at 465 n.14, 100 S.Ct. at 1784 n.14. [9] In Navarro, the Court restated the general rule that when persons composing an unincorporated association sue in their collective name, those persons are the parties whose citizenship determines the diversity jurisdiction of a federal court. 446 U.S. at 461, 100 S.Ct. at 1782. Having made this statement, the Court went on to cite several cases, one of which was Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 456, 20 S.Ct. 690, 693, 44 L.Ed. 842 (1900). Inasmuch as that case nominally involved a "limited partnership association", it is appropriate for this Court to set forth its reasoning in concluding Great Southern has no applicability to the matter at bar. As an initial matter, the entity in question in Great Southern, although denominated a "limited partnership association", was a fundamentally distinct business organization from the modern-day limited partnership. The limited partnership association in Great Southern had been organized under a Pennsylvania statute entitled "An Act Authorizing the Formation of Partnership Associations in Which the Capital Subscribed Shall Alone be Responsible for the Debts of the Association, except under Certain Circumstances." Although the text of the statute is not set forth in the opinion, it is apparent from the title that the statute authorized the establishment of an entity whose structure limited the liability of all partners to their capital contribution, but no particular partner was designated exclusively to control and direct the business operations of the entity, as is the case in the modern limited partnership. Further, as the Court noted in Carlsberg Resources Corporation v. Cambria Savings & Loan Association, all of the partners in Great Southern were of a "limited" status. 554 F.2d at 1258. Due to the lack of differing classes of partners in Great Southern, the Court was not faced with a situation where, as here and in Navarro, there existed distinct rights and powers reserved to members of such differing classes. Even the Carlsberg Resources court, which concluded the citizenship of a limited partnership is determined by the citizenship of all of the general and limited partners, recognized the Great Southern decision is not controlling of the issue here presented, noting: [W]e recognize that the three leading Supreme Court cases in this area [one of which was Great Southern] ... do not squarely address the exact question posed here — in effect, whether partners of divergent status may be treated differently for purposes of an evaluation regarding diversity of citizenship. 554 F.2d at 1259. The fact of differing classes of partners takes on significance in light of the analysis employed by the Supreme Court in Navarro, focusing as it does, on the nature of the rights and powers reserved to each class. In summary, it is apparent the Great Southern decision represents the application of the general rule regarding the citizenship of unincorporated associations to a unique creature of Pennsylvania statutory law, and does not address the citizenship of limited partnerships established under the Uniform Limited Partnership Act, as enacted by all the states.

32 N.J. Super. 33 (1954) 107 A.2d 665 ANNA MAGICH, AS GENERAL ADMINISTRATRIX OF THE ESTATE OF MICHAEL MAGICH, DECEASED, AND BENEFICIARY, PLAINTIFF-APPELLANT, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, DEFENDANT-RESPONDENT. Superior Court of New Jersey, Appellate Division. Argued August 9, 1954. Decided August 31, 1954. *35 Before Judges SCHETTINO, HETFIELD and CAFIERO. Mr. Stephen Mongiello argued the cause for plaintiff-appellant. Mr. John P. Nugent argued the cause for defendant-respondent (Messrs. Nugent and Rollenhagen, attorneys). The opinion of the court was delivered by CAFIERO, J.S.C. (temporarily assigned). This is an appeal from a judgment of involuntary dismissal entered by the Hudson County District Court on a motion at the close of plaintiff-appellant's case. Plaintiff is the mother of Michael Magich, deceased, who died June 19, 1953, under circumstances which will hereafter be narrated. She was the beneficiary named in a policy of insurance issued by the defendant, John Hancock Mutual *36 Life Insurance Company, to her said son, which contained benefit provisions for the sum of $1,000 representing life insurance; and an additional sum of $1,000 for accidental death. The clause providing for the latter, being as follows: "If the Employee * * * suffers any of the losses described below, as a result of bodily injuries sustained solely through external, violent and accidental means, * * * the company shall pay to the Employee, if living, otherwise to the beneficiary, the amount of insurance specified for such loss * * * provided however, that no payment shall be made for any loss caused wholly or partly, directly or indirectly, by * * * (c) suicide while sane or insane, or intentionally self inflicted injury; or * * *." The defendant paid the death benefits, but denied the claim for the accidental death, whereupon this suit was brought. No answer was filed, and defendant in its opening to the jury stated that the proofs might show that the death was the result of suicide. This was not pleaded as an affirmative defense, but the jury was asked to examine the facts to determine whether it so occurred. At the trial it was established that the insured's lifeless body was found sprawled on the kitchen floor of a small apartment in which he resided with his mother and elder sister. He had been alone in the apartment and his body was found by his said sister upon her return from work at about 5 P.M. She testified that the chain lock was on the door leading to the apartment; that the radio was playing, and that she gained entrance into the apartment through the help of neighbors. Upon doing so she observed her brother in the position stated, with a rifle across his legs. She also observed a tear in his shirt, a bullet wound, and a small hole in his stomach. There was no blood, only a red mark. It was also established that a few days previous he had purchased this particular rifle, and other hunting equipment, consisting of a hunting coat, pants, shoes, gun cleaning equipment, a cartridge belt and a quantity of shells; and also had purchased a state hunting license. The rifle was a 3006 Remington, known as a high powered rifle, had a hair trigger *37 and there was testimony that the gun could be discharged without touching the trigger. After purchasing the equipment he showed them to his mother and sister, and also showed the rifle, shells and cleaning equipment to a young nephew. The mother and sister testified that he had been in a "happy-go-lucky" mood, and that he was making preparations to go on a hunting trip. A tailor woman testified that he brought a pair of trousers to her the day before his death, to be dry-cleaned, and that he had called for them on the morning of his death; but that they weren't ready, and he was to have returned for them that afternoon. It was also testified that he was then approximately 19 years of age, had been discharged from the army, about a year before, and had since been steadily employed, earning $85 a week at the time of his death; but that by reason of the nature of his work he appeared to be under a strain, and he had sought and received time off for a vacation. At this posture of the proof plaintiff rested; whereupon the jury was retired and defendant moved for a judgment of involuntary dismissal. The court granted the motion, and in the discussion which followed the court remarked that the plaintiff for some reason never attempted to put in evidence the death certificate. Counsel for plaintiff sought to justify his position, and upon failing to convince the court, asked permission to reopen his case to offer the death certificate. The application was denied, and plaintiff raises as her grounds of appeal that the court erred in granting defendant's motion, and also that the refusal of the trial court to reopen the case, to meet any question regarding death or its causes, was an abuse of discretion. The court was justified in granting defendant's motion on the proofs which were then before it. The burden rested upon the plaintiff to show by adequate proofs that death resulted from accidental causes as defined in the terms of the policy. Where coverage of a policy is limited to death or injury sustained through external, violent and accidental means, the burden rests upon plaintiff in an action upon the policy to make a prima facie case in favor of a recovery by *38 showing the affirmative of that requirement. Kennedy v. U.S. Fidelity & Guaranty Co., 113 N.J.L. 431, 174 A. 531 (E. & A. 1934). The plaintiff is required to submit proof on the cause of death and not to leave this important fact to the court or jury to conjecture or surmise. She must submit facts from which the cause may be at least inferred. Shopp v. Prudential Ins. Co. of America, 115 N.J.L. 162, 178 A. 724 (E. & A. 1935). Whether the death certificate would suffice for such purpose, we cannot state since the certificate is not before us, and the application to reopen the case to offer it was refused. However, the court saw fit to comment upon it, and we must assume that it did so, very definitely, for a purpose. The application should have been granted, because if the cause of death were shown to have occurred by a bullet wound, this fact, together with the other proofs in the case, coupled with the presumption which exists against suicide, would have been sufficient to establish a prima facie case, requiring the defendant to go forward with evidence, at the peril of suffering a direction of a verdict against him if he fails to do so. There is a legal presumption against suicide, and if that presumption is coupled with the other proofs required of the plaintiff, it makes out a prima facie case. This presumption is of course rebuttable. Kresse v. Metropolitan Life Ins. Co., 111 N.J.L. 474, 168 A. 634 (E. & A. 1933). The presumption against suicide is not evidence, but it does require the opposing party to bring forth evidence to overcome it. Kirschbaum v. Metropolitan Life Ins. Co., 133 N.J.L. 5, 42 A.2d 257 (E. & A. 1935); Carroll v. Prudential Ins. Co., 125 N.J.L. 397, 15 A.2d 810 (E. & A. 1940). "It is basic on a motion to dismiss at the close of plaintiff's case that the plaintiff is to have the benefit of all facts proven, together with all direct or indirect inferences which may be reasonably drawn from such facts." Pirozzi v. Acme Holding Co. of Paterson, 5 N.J. 178, 185, 74 A.2d 297 (1950). The court having pointed out the apparent probative value of the death certificate, should have gone further, and *39 when requested should have permitted plaintiff to reopen her case to establish the cause of death. The court's refusal appears to have been based upon the fact that the offer was not made until after it had granted defendant's motion. Standing alone, this is insufficient; particularly, when not to do so may prevent rendering substantial justice, and the reopening of the case was a matter which could easily have been accomplished. The jury had not been discharged and reopening the case at the time the request was made did not present any problem. Cf. Smith v. Smith, 17 N.J. Super. 128, 85 A.2d 523 (App. Div. 1951). The issue in question was a vital one and plaintiff should have been given the opportunity she sought to supplement her proofs. Carlo v. Okonite-Callender Cable Co., 2 N.J. Super. 122 (App. Div. 1949), affirmed 3 N.J. 253 (1949); Juliano v. Abeles, 12 N.J. Misc. 667, 174 A. 341 (Sup. Ct. 1934). Denial of plaintiff's request was reversible error. For the reasons above stated, the judgment under appeal is reversed and remanded, to the end that a new trial may be had. No costs are allowed.

513 F.3d 618 (2008) Reginald BROOKS, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee. No. 05-4461. United States Court of Appeals, Sixth Circuit. Argued: December 4, 2007. Decided and Filed: January 22, 2008. *619 *620 ARGUED: Michael J. Benza, Law Offices, Cleveland, Ohio, for Appellant. Thomas E. Madden, Attorney General's Office Of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: Michael J. Benza, Law Offices, Cleveland, Ohio, Alan C. Rossman, Cleveland, Ohio, for Appellant. Thomas E. Madden, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee. Before SUTTON, McKEAGUE, and GRIFFIN, Circuit Judges. OPINION SUTTON, Circuit Judge. This case arises from an act of filicide, in truth three acts of filicide, for Reginald Brooks murdered not just one of his sons but all three of them as they lay sleeping. Outside of Greek myth and the more fortunate sons of Cronus, this is not something we want to read about or indeed frequently ever hear about. This father, no surprise, suffered from a serious psychological illness and engaged in several odd forms of behavior during the years before the murders, information that the sentencing court was told and that it accepted. The court also was told that Brooks knew what he was doing on the morning of the *621 murders, that he evaded responsibility for the crimes and that he had the capacity to appreciate what he did was wrong. As is often true in the most appalling murder cases, the facts of the crime themselves add weight to both sides of the life-versus-death scales. The planned act of murdering one's three children confirms the utter depravity of the crime at the same time it suggests the seriousness of the defendant's psychological illness. In the end, the sentencing court found that the aggravating factors outweighed the mitigating factors and imposed three capital sentences on Brooks. The debate today is whether Brooks' trial counsel provided ineffective assistance during the penalty phase of the trial by failing adequately to investigate his mental-health history and background. In support of this theory, Brooks principally offered three pieces of new evidence that his three lawyers, one investigator, one psychiatrist and one psychologist apparently did not discover and that they did not introduce during the mitigation hearing—namely that, during the two or so years before the murders, Brooks had practiced voodoo, accused his wife of having an incestuous relationship with their oldest son and refused to allow the same son to display his athletic trophies. The state courts rejected this claim in part because the sentencing court already had ample evidence of Brooks' serious psychological illness and other manifestations of that illness in front of it. The district court rejected his federal habeas claim as well. Because the state courts' resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, we affirm. I. On Saturday morning, March 6, 1982, Beverly Brooks left her home in Cleveland, Ohio, to go to work, leaving behind her three sons (17, 15, 11), who were still asleep, and her husband, Reginald, who was awake and upon whom she had served divorce papers two days earlier. At roughly 8:00 a.m., after Beverly had left the house, Reginald shot each of his sons in the head while they were asleep in their beds. By the time Beverly returned home from work that day and discovered her dead children, Brooks had boarded a bus to Las Vegas, Nevada. On March 8, after tracing the credit card Brooks had used to purchase his bus ticket, police took him into custody in Utah. Although Brooks told the police he was carrying just one piece of luggage, a search of his wallet produced a baggage-claim check for a second suitcase. Inside that suitcase were Brooks' personal items and a box containing a fully loaded .38 special revolver and ammunition. Fingerprints on the gun box and two cartridges matched Brooks' fingerprints, and ballistics testing showed that the only two slugs that could be recovered from the victims were fired from the same .38 special. Authorities traced the gun to one that Brooks had purchased on February 25, 1982, and found gun-powder nitrate on the right sleeve of Brooks' coat. On March 10, 1982, a grand jury indicted Brooks on three counts of aggravated murder. Brooks pleaded not guilty, after which the trial court referred him for a pre-trial competency hearing. Following a hearing at which a court-appointed psychiatrist, Dr. Aaron Billowitz, testified that Brooks suffered from schizophrenia, the court found Brooks "competent to stand trial," reasoning that he has the "ability to understand the charge against him and work and cooperate with his attorneys in his defense." Brooks waived his right to a jury trial and, as permitted under Ohio law, proceeded *622 to trial before a three-judge panel. During the guilt phase of the trial, Brooks prohibited his lawyers from presenting an opening or closing statement, putting on any witnesses or cross-examining certain witnesses. On September 23, 1983, the three-judge panel found Brooks guilty of the aggravated murders of his sons and referred him for a presentence investigation and psychiatric evaluation. At the sentencing hearing on November 29-30, 1983, Brooks presented three witnesses: Dr. Stanley Althof, Dr. Kurt Bertschinger and Paul Hrisko. Althof, the chief psychologist at the Cuyahoga County Court Psychiatric Clinic, testified that Brooks suffered from paranoid schizophrenia, which "impair[s] a person," "reduce[s] his judgment, . . . reduce[s] his control, and likely did contribute to the commission of some crime." Bertschinger testified that Brooks suffered from psychogenic amnesia, which prevented him from having "conscious recall of the alleged criminal activities in which he was involved." Because Brooks' amnesia prohibited Bertschinger from "obtain[ing] from [Brooks] anything about the incident, and [because there was] absolutely no collateral information [concerning Brooks' mental state at the time of the murders]," Bertschinger could "make no opinion as to mitigating circumstances." Hrisko, one of the three attorneys who represented Brooks during the guilt and penalty phases of the trial, indicated that Brooks refused to testify at both phases of the trial and that Brooks refused to submit to a sodium-amytal test, which psychiatrists use with trauma survivors to access repressed or unconscious material. The State presented three witnesses at sentencing: James Hughey, Brooks' wife, Beverly, and Billowitz. Trying to show that Brooks understood psychology and had contrived his amnesia to appear incompetent, the State called Hughey (a Cleveland police officer) and Beverly Brooks to testify that, in the early 1970s, Brooks had taken college-level psychology courses and that psychology-related books were recovered from Brooks' residence after the murders. The State called Billowitz, a psychiatrist who evaluated Brooks on four occasions and who submitted multiple reports to the court, to testify that Brooks "was legally sane at the time of the act." Billowitz conceded on cross-examination that Brooks "was schizophrenic at the time of this act" and "may have experienced paranoid delusions" at that time, but nonetheless concluded that Brooks "maintained the capacity to appreciate that killing was wrong and . . . had the capacity to conform his conduct to the requirements of the law (as indicated by the great amount of circumstantial evidence showing detailed planning and awareness of escaping detection[)]." On November 30, the three judge panel sentenced Brooks to death for each of the murders. In its written opinion, the panel recognized that Brooks "suffered from a mental illness—schizophrenia"—"before, during, and after commission of the [murders]," but concluded that the "mental illness or defect did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law." The panel also acknowledged that Brooks' "family relationship [had] steadily deteriorated" since 1976 and that "[i]t [was] entirely conceivable that [Brooks] was under extreme stress due to [this] deteriorated relationship[,] . . . [his] lack of employment, and [the] threat of divorce"—including being served with divorce papers two days before the murders—but found that Brooks'"free will was not impaired by" these events or his mental illness. Brooks, the court stated, "in a single course of conduct, with prior calculation and design, chose to take a gun to the heads of his *623 three sons and execute them through a twisted sense of jealousy, hatred, or despair. He had the ability to refrain from commission of those heinous acts." In reaching this conclusion, the panel "rejected [Brooks'] claim of psychogenic amnesia," reasoning that he had amnesia "only about those things that were incriminating, remembering things that were not incriminating, even though the incriminating and non-incriminating incidents or facts occurred at exactly the same time or close together in time. . . . [H]is denials were lies, not memory lapses, and . . . he clearly was not a victim of psychogenic amnesia." The court in the end "conclude[d] beyond a reasonable doubt that the aggravating circumstances outweigh all of the mitigating factors." Brooks appealed, arguing (1) that his counsel provided ineffective assistance during the competency phase of the trial, (2) that the trial court erred in finding that the aggravating circumstances outweighed the mitigating factors and (3) that Ohio's death-penalty scheme was unconstitutional. The state courts rejected all three arguments and affirmed his conviction and sentence. See State v. Brooks, No. 48914, 1985 WL 8589 (Ohio Ct.App. Aug. 15, 1985); Ohio v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407, 410 (Ohio 1986) (per curiam). The U.S. Supreme Court denied review. Brooks v. Ohio, 479 U.S. 1101, 107 S.Ct. 1330, 94 L.Ed.2d 182 (1987). In 1987, Brooks filed a petition for post-conviction relief in state "court. Among other claims, Brooks contended that he had received ineffective assistance of counsel during the mitigation phase of the trial because his lawyers "fail[ed] to adequately conduct a mitigation investigation" and thus precluded his mental-health experts from receiving "valuable" information concerning his mental-health history. In support, Brooks submitted affidavits from family members, friends, mental-health experts, attorneys and prison officials. Those affidavits said that Brooks' counsel had not contacted certain family members and friends of Brooks and that those family members and friends, if contacted, would have told Brooks' counsel additional information about his mental-health history. Ten years later, the trial court rejected all of Brooks' claims. It concluded that Brooks' ineffective-assistance arguments "are without merit legally or factually and not supported by sufficient evidence through affidavits to require a hearing in this matter." Nothing in the record explains why it took ten years for the court to decide this case. The court of appeals affirmed, see State v. Brooks, No. 73729, 1999 WL 401655, at *9 (Ohio Ct.App. June 17, 1999), and the state supreme court denied review, see State v. Brooks, 88 Ohio St.3d 1432, 724 N.E.2d 809 (Ohio 2000). On April 17, 2002, Brooks filed a petition for a writ of habeas corpus in federal court, raising 20 claims for relief. In his ninth claim, Brooks argued that he was denied the effective assistance of counsel during the mitigation phase of his trial. The district court held that the claim was procedurally defaulted and rejected it on the merits as well. The court rejected Brooks' other 19 claims and denied Brooks a certificate of appealability on any of his claims. We issued a certificate of appealability for three related ineffective-assistance claims arising from the mitigation phase of the trial: "(1) whether trial counsel rendered ineffective assistance for failing to provide requested information to the retained mental health experts; (2) whether trial counsel rendered ineffective assistance for failing to investigate Brooks's background and personal history; and (3) whether trial counsel rendered ineffective assistance for failing to present mitigating *624 evidence other than that addressing [Brooks') competency." II. A. Because Brooks filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), that statute potentially governs this case. We say "potentially" because AEDPA deference applies only "with respect to any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d) (emphasis added). And in this case the Ohio Court of Appeals seemed to reject Brooks' ineffective-assistance claim on alternative grounds, one of which was on the merits, the other of which was not (the procedural-bar ruling). Because we doubt the soundness of the state court's procedural-bar ruling (and indeed whether it even enforced a procedural bar), we must consider whether the court's alternative merits ruling receives AEDPA deference. We think that it does. The language of the statute does not draw a distinction between cases involving alternative rulings; it refers broadly to "any claim that was adjudicated on the merits in State court proceedings." Id. While the state court of appeals need not have addressed the claim on the merits once it identified a procedural bar, it surely had the authority to do so as an additional ground for decision—making this additional ground no less a "claim that was adjudicated on the merits in State court proceedings" than if the case had not presented a procedural-bar issue at all. In this respect, we see no material difference between this type of alternative ruling and another one—where a state court offers alternative merits grounds for rejecting a claim. Here, for example, the state court ruled that Brooks failed to satisfy the deficient-performance and prejudice prongs of an ineffective-assistance claim, even though it need only have determined that Brooks failed to satisfy just one of these prongs to resolve the claim. Yet it would be strange to say that just one of these contentions was resolved on the merits or, worse, that neither one was. See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (applying AEDPA deference to those prongs of Strickland that the state courts "reached"). This interpretation, moreover, would seem to favor judicial practices that in the main will benefit both sides in criminal cases. It is the rare criminal defendant who would prefer that the state courts not reach the merits of his constitutional claim. And it is the rare State that would object to a state court ruling that offers an additional ground for denying the defendant relief. Above all, this practice will "show a prisoner . . . that it was not merely a procedural technicality that precluded him from obtaining relief." Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). Just as a state court wishing to invoke an independent and adequate state ground to dispose of a case "need not fear reaching the merits of a federal claim in an alternative holding," Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (emphasis omitted); see also White v. Schotten, 201 F.3d 743, 750-51 (6th Cir. 2000), overruled on other grounds by Lopez v. Wilson, 426 F.3d 339 (6th Cir.2005) (en banc), so it need not fear losing the benefit of the doubt that AEDPA gives to state court rulings whenever it invokes an independent and adequate state ground as an alternative holding. We have some company in taking this approach. All of the circuit courts that have considered the question to our knowledge have determined, albeit with little discussion, that an alternative procedural-bar ruling does not alter the applicability *625 of AEDPA. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir.2004); Busby v. Dretke, 359 F.3d 708, 721 n. 14 (5th Cir. 2004); Johnson v. McKune, 288 F.3d 1187, 1192 (10th Cir.2002); Bacon v. Lee, 225 F.3d 470, 478 (4th Cir.2000); cf. Massachusetts v. United States, 333 U.S. 611, 623, 68 S.Ct. 747, 92 L.Ed. 968 (1948); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486, 44 S.Ct. 621, 68 L.Ed. 1110 (1924). We therefore must review Brooks' claims based on the deferential requirements of AEDPA. That means we may grant Brooks' application for habeas relief only if the state court's adjudication of his claims "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). B. Brooks does not contend that the state appellate court's decision was "contrary to" clearly established Supreme Court precedent. And with good reason: that decision "correctly identifie[d] Strickland as the controlling legal authority" and thus was "not `mutually opposed' to Strickland itself." Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). He instead contends that the decision unreasonably applied Strickland. See id. at 411-12, 120 S.Ct. 1495. To establish ineffective assistance, a claimant must show that the attorney's performance was "deficient" and that this performance "prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance occurs when the representation falls "below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Prejudice occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. The question in this case is not whether Brooks' three attorneys had a duty to conduct an adequate investigation into his mental-health history and to provide his experts with the information they needed to present an effective defense. They clearly did. See id. at 691, 104 S.Ct. 2052; Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir.1995). The question rather is whether counsel satisfied that duty and, if they did not, whether that failing prejudiced Brooks' defense. In support of his deficient-performance and prejudice arguments, Brooks presented several affidavits to the state courts in his post-conviction papers. In rejecting his claim, the state court of appeals offered the following reasons, among others: [T]he information in the affidavits submitted by him in support of his [postconviction petition] was not sufficient to warrant relief or an evidentiary hearing. The information is similar to that rejected in other cases denying [petitions] raising claims of ineffective assistance in litigating a capital defendant's mental status. New information that provides only additional detail to that presented at trial or that is simply cumulative or alternative to that presented at trial does not provide' grounds for relief. Brooks, 1999 WL 401655, at *6 (internal quotation marks and citations omitted). We will consider each of these affidavits in turn. Affidavit of Tyrone Brooks. The affidavit of Brooks' brother, Tyrone, says that defense counsel did not contact him and that, if they had, he would have told them that he suffered from schizophrenia. The *626 record casts considerable doubt on the premise of this claim—that counsel never spoke to Tyrone or that they never otherwise learned this information. The itemized statement of Mark Angelotta, Brooks' investigator, who worked at the direction of Brooks' attorneys, indicates that he met with Tyrone on three separate occasions—once before the guilt phase and twice between the guilt and penalty phases—and that Brooks' counsel attended the last meeting. Angelotta's notes refer to Tyrone's mental illness, indicating that "Tyrone has been in mental hospitals" for paranoid schizophrenia or depression. But even if this affidavit could be construed to support a deficient-performance claim, it does not establish prejudice. The sentencing court was well aware that Reginald Brooks suffered from schizophrenia—indeed, no one disputed the fact—and the additional evidence that another family member suffered from the disease is the kind of cumulative evidence that does not show prejudice. See Durr v. Mitchell, 487 F.3d 423, 436 (6th Cir.2007). Affidavit of Beverly Brooks. The affidavit of Brooks' wife, who was a witness against Brooks at the trial, focuses on Brooks' increasingly strange patterns of behavior. In 1976, Brooks quit his job because he thought his co-workers were trying to poison him. And in 1979 and 1980, Brooks (1) became isolated and rarely left his home or visited with family members, (2) accused Beverly of trying to poison him, (3) "mutilated a child's doll by a cutting a hole in the doll's chest" and "handed] [the doll] by its neck from a chandelier," (4) tore the telephone off the wall, (5) believed "in voodoo and the occult" and thought that "magic spells" could be placed on people, (6) destroyed his record albums and mutilated a wall ornament of a cat "by scratching out the eyes of the [cat]" and (7) "struck [Beverly] with his hands" for the second time in their marriage. What is more, "[d]uring the latter years of [the] marriage, [Brooks] accused [her] of having incestuous relations with [the couple's oldest son]," and Brooks was jealous of their oldest son's athletic abilities and refused to allow his son to display his trophies in the house. Beverly indicated that she would have divulged these facts to "defense counsel for use in the mitigation phase" but was not contacted "by defense counsel at or prior to either the guilt or mitigation phase of [Brooks'] trial." The records of Brooks' investigator also cast doubt on the allegation that Beverly and the trial team did not communicate. They show that he had a two-hour conference with Beverly Brooks, Tyrone Brooks and one of Brooks' attorneys on October 25, 1983, over a month before Bertschinger issued his report and a month before the sentencing hearing. They also show that he interviewed Beverly, and his itemized statement shows that he met or talked with all three of Brooks' attorneys on the same day as the interview. Bertschinger, Brooks' primary expert during the mitigation hearing, testified that he "called Ms. Brooks, the defendant's ex-wife, and spoke with her for approximately half an hour getting some background information and some of her observations, particularly as they pertained to Mr. Brook[s'] behavior just prior to the alleged incident." Bertschinger pointed to specific comments that Beverly made to him concerning Brooks' behavior on the day of, and the years preceding, the murders. All of this suggests that Brooks' counsel either spoke to Beverly or at least learned what she had to say through their investigator. But even if, despite this evidence, it could be said that her affidavit establishes deficient performance, it does not show prejudice. If the thrust of the affidavit is that counsel did not talk to *627 Beverly about Brooks' history, that does not show prejudice if counsel's investigator spoke to Beverly (and no one claims that Brooks' attorneys failed to talk to their investigator) and if counsel's chief expert, Bertschinger, spoke directly to Beverly about the "background information and some of her observations, particularly as they pertained to Mr. Brook[sl behavior just prior to the alleged incident." Not only did Bertschinger speak to Beverly about Brooks' background and the events leading up to the murders, but he also testified about most of the pieces of information mentioned in Beverly's affidavit anyway. Bertschinger testified that, beginning around 1977, Brooks "quit working," "develop[ed] some suspicions regarding people at work," "withdr[e]w from contacts with friends, and to some degree . . . with family," had "paranoid ideation[s]," "thought people were trying to poison his food," "accused [Beverly] of trying to poison his food" and "had an idea at one point in time that his phone was being tapped." Billowitz discussed some of the same background information in his report and testimony, see, e.g., JA 564 (explaining that Brooks had "significant difficulties in functioning" in the "last 5 years" and "appears to have become socially isolated" and "aggressive . . . at home"), as did the sentencing panel in its opinion, see, e.g., JA 552 ("After the defendant Brooks quit working, their family relationship steadily deteriorated. At times, he was physically abusive toward his wife and children."). That leaves three topics Beverly mentioned in her affidavit that did not come out at trial—(1) Brooks' belief in voodoo, his mutilation of dolls and his destruction of albums and a wall ornament; (2) Brooks' accusation that Beverly was having an incestuous relationship with the couple's oldest son; and (3) Brooks' refusal to allow his oldest son to display athletic trophies. These items were cumulative of the information already provided and, no less importantly, none of Brooks' post-conviction experts explains why these additional items by themselves would have changed the diagnoses. In this regard, this case is similar to Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005). In Hill, the petitioner argued that post-conviction affidavits submitted by a psychiatrist and by a psychologist established prejudice under Strickland because they "demonstrate[d] how a properly prepared expert could have (and should have) testified." Id. at 316. We rejected that argument—under a de novo standard of review no less, see id. at 314—because, although the affidavits "provide[d] more information about [the petitioner's] background" than was presented at trial, the petitioner "fail[ed] to explain why this additional information would have been likely to persuade a jury to give him a life rather than a capital sentence and why at any rate its absence from [trial] testimony affected the jury's deliberations given that much of this background information was in the . . . psychological reports presented to the jury," id. at 317. "[I]n order to establish prejudice," we noted, "the new evidence that a habeas petitioner presents must differ in a substantial way—in strength and subject matter—from the evidence actually presented at sentencing." Id. at 319. Yet there, as is true here, the information in the affidavits simply "echoed points" already presented to, and weighed by, the sentencer. Id. at 318; see also Clark v. Mitchell, 425 F.3d 270, 287 (6th Cir.2005); Williams v. Coyle, 260 F.3d 684, 706 (6th Cir.2001). Keep in mind, moreover, the context in which this information was sought. Brooks refused to allow his counsel to call Beverly as a witness at the guilt phase and apparently took the same view at the penalty phase of the trial, and he instructed *628 counsel that they were "to in no way cross-examine [Beverly] as to the substantive facts that she might put forth." The point of any interviews with. Beverly thus was not, quite improbably, to consider using her as a witness on Brooks' behalf or to establish a basis for cross-examining her when she testified for the State during the mitigation phase; it was to obtain additional background information for the experts. Yet with the information the experts did possess, a diagnosis of schizophrenia was made, and the trial panel accepted that diagnosis. Affidavit of Franklin Hickman. Filed by one of Brooks' penalty-phase attorneys, this affidavit says that Hickman was not Provided with information concerning Brooks "[o]ther than the information contained in the psychological and psychiatric reports" and that he was not aware of, among other things, "Brooks' belief that he was being poisoned at work" or "the fact that prior to 1982 Brooks' brother Tyrone was hospitalized for treatment of schizophrenia." Like Beverly's and Tyrone's affidavits, Hickman's affidavit runs into contrary record evidence. Angelotta's itemized statement indicates that he met or talked with Hickman on four occasions—for a total of five hours—including once with Tyrone and Beverly Brooks and once on the day before the start of the sentencing hearing. But we again need not resolve whether the allegations are true or whether they show deficient performance; they do not show prejudice. Hickman himself managed to obtain some of this same information through his questioning at trial. Bertschinger testified that Brooks "develop[ed] some suspicions regarding people at work" and "thought people were trying to poison his food." More importantly, as we have shown, most of this information came out during the mitigation hearing anyway, and the additional items Hickman mentions were cumulative of the mitigation theory already before the court. Nor, critically, does Hickman's affidavit say anything about the extent of the investigations performed by Brooks' two other attorneys—the attorneys who handled the guilt phase of the trial, who brought Hickman into the case to assist them with the penalty phase of the trial and who presented part of the defense's case during the penalty phase—or anything about the extent of Angelotta's investigations. Having failed to present any affidavits from these other attorneys or from Angelotta to support his claims, Brooks is in no position to show that, whatever restrictions Hickman faced, they prejudiced Brooks' defense. Indeed, in view of the absence of affidavits from Brooks' other attorneys, there is no basis for concluding that they did not discover all of the allegedly new information and simply chose not to use it as a matter of strategy. See Carter v. Mitchell, 443 F.3d 517, 531 (6th Cir.2006) ("[C]uriously absent from the record is any statement from trial counsel describing what he did or did not do in investigating [the defendant's] background. By not detailing trial counsel's efforts to learn of [his] background, [the defendant] has provided no basis for a finding that trial counsel's investigation was unreasonable."). Affidavit of Bertschinger. Bertschinger, Brooks' primary mitigation expert, said that defense counsel did not provide him with information about Brooks' mentalhealth history, which would have helped him assess Brooks. Here, too, there are disparities between what Bertschinger's affidavit says he did not have and what his testimony shows he did have. Although Bertschinger claimed he did not have information about "Brooks' suspicions that his co-workers . . . intended to poison him," he testified that Brooks "develop[ed] *629 some suspicions regarding people at work" and "thought people were trying to poison his food." Although Bertschinger claimed he did not know about "Brooks' self-imposed isolation from family members," he testified that Brooks "withdr[e]w from contact with friends, and to some degree, withdrew even in his contacts with family." Just as his ultimate access to this information undermines a claim of prejudice, so too does his theory of prejudice. Bertschinger's affidavit (and Dr. Sandra McPherson's nearly identical affidavit) indicated that "this collateral information would have provided evidence to support the diagnosis that Brooks suffered from . . . paranoid schizophrenia." Yet the state courts already had that diagnosis in front of them. Another defense expert, Althof, gave this diagnosis at sentencing; the State's principal expert accepted a similar diagnosis; and the sentencing panel found that Brooks suffered from schizophrenia. Bertschinger's (and McPherson's) affidavit responds that the additional information would have shown that Brooks was "actively psychotic and delusional shortly before his sons' deaths" and that such "psychosis and delusions would have had an important impact on Brooks' behavior at the time of his sons' murders." But based on this allegedly new information, Bertschinger tellingly did not opine (and neither did McPherson) that Brooks did not appreciate the criminality of his conduct or did not have the ability to conform his conduct to the requirements of the law. In the absence of such an opinion from someone who evaluated Brooks and in the presence of an opposing opinion from Billowitz, there is no tenable basis for saying that the sentencing panel's conclusion regarding the impact of this mitigating factor—or, for that matter, any other mitigating factor—would have been different. More, the claimed prejudice expressed in Bertschinger's affidavit cannot be squared with a central feature of his testimony—that he could not diagnose Brooks' mental condition at the time of the murders without information directly from Brooks, which Brooks could not provide in view of his claimed amnesia. See, e.g., JA 1114 ("[W]ithout information from Mr. Brooks, there is no way I can give an opinion with reasonable medical certainty either on the issue of sanity and certainly not on the issue of mitigation."). How, if Bertschinger needed information directly from Brooks, information provided by other people about events mainly occurring two or so years before the murders could have swayed his conclusions is not explained. Which leads to the last problem with Brooks' reliance on Bertschinger's affidavit: the essence of Bertschinger's mitigation testimony (and a central theme of counsel's mitigation strategy) was that Brooks' amnesia made it impossible to know his state of mind on the day of the murders, precluding anyone from concluding that the aggravating factors outweighed an unknowable and significant mitigating factor. That reasonable strategy was consistent with Bertschinger's testimony that he could not diagnose Brooks with schizophrenia without speaking to him directly about the day of the murders. Yet the strategy of Brooks' habeas petition (and the theory of Bertschinger's affidavit) is that a diagnosis based on collateral information primarily from two or more years before the murders could be made even without the assistance of Brooks, a strategy that surely has a "double edge" to it when it comes to Brooks' reasonable trial strategy, Wiggins, 539 U.S. at 535, 123 S.Ct. 2527, making a reasonable possibility of prejudice still more implausible. *630 Affidavits of Azeem Bey (Brooks' stepfather), John Brooks (Brooks' uncle) and Joyce Robinson (Brooks' former coworker and a friend of Beverly Brooks). These affidavits all fail to advance Brooks' claim. While they say that Brooks' counsel did not contact them during his criminal trial, they do not, as the state court of appeals explained, "state what [specific or new] information the witness[es] would have provided if contacted before trial." Brooks, 1999 WL 401655, at *5. In the absence of this information, these affidavits cannot establish prejudice. Affidavits of Patricia Walsh, Richard Vickers and Stephen Aarons (attorneys). Nor is Brooks aided by the affidavits of attorneys who were not involved in the guilt or sentencing phase of this case and who now criticize the performance of the three-judge panel and of Brooks' counsel and his experts. Walsh's affidavit, for its part, does not even allege that Brooks' counsel failed to investigate Brooks' background or failed to provide specific information to the mental-health experts who evaluated Brooks, but rather contains largely conclusory allegations of other errors committed by Brooks' counsel and by the three judge panel. Vickers' affidavit contains similar flaws and undermines Brooks' claim by including information concerning Angelotta's investigation that substantially refutes several of Brooks' and the other affiants' contentions about who spoke to whom. Aarons' affidavit does not establish prejudice because it fails to explain how additional evidence relating to Brooks' schizophrenia could have changed the sentencing panel's conclusion. Affidavit of Dr. Nancy Schmidt-goessling (clinical psychologist). Submitted by a psychologist not involved with Brooks' trial, this affidavit alleges errors committed by Brooks' counsel and his experts. Schmidtgoessling says that Brooks' counsel failed to make "contact with [his] employers . . . and immediate family other than brief contact with Brooks' brother," failed to discover "Brooks' belief that he was being poisoned at work" and did not present adequately Brooks' paranoid schizophrenia as a mitigating factor. But the record—Angelotta's itemized statement and Bertschinger's testimony—casts doubt on several of Schmidtgoessling's allegations. Even then, the affidavit does not establish prejudice because it fails to explain how or why a more "detailed, integrated picture of Brooks and his psychological functioning" could have persuaded the panel to give Brooks a life sentence in view of the information about his mental-health history that the panel heard. Affidavits of Raymond Goodwin and Gary Cartwright (Utah prison officials) and Donald Williamson (Brooks' high school friend). The affidavits of the Utah prison officials who worked in the facility where Brooks was held pending extradition to Ohio indicated that Brooks' "behavior at all times was highly appropriate," that Brooks "[a]t no time . . . display[ed] violent or negative behavior towards his jailors or other prisoners" and that Brooks "remained quietly in his cell unless requested to leave." This information does not offer any glimpse into Brooks' state of mind before the murders and hardly suggests that he was actively psychotic and delusional on the day of the murders. The affidavit of Donald Williamson, one of Brooks' high school friends, also had a two-sided edge to it. Although it said that Brooks appeared "wild" and "crazy" after he fought with his kids, it also said that Brooks thought his children "tried to physically intimidate him" and that Williamson told Brooks "to discipline his sons so that they would not be disrespectful." These latter statements would have buttressed the sentencing panel's *631 conclusion that Brooks "execute[d his children] through a twisted sense of jealousy, hatred, or despair," as would the information about Brooks' attitude toward his oldest son's trophies and alleged incestuous relationship with Beverly. Brooks' claim is not only susceptible to being divided and conquered one affidavit at a time, but it also does not show prejudice when the affidavits are grouped together. In determining that the aggravating factors outweighed these mitigating factors, the sentencing panel concluded that Brooks' schizophrenia "did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law." Considerable evidence supported the conclusion that, in the days leading up to the March 6th murders and in the days following them, Brooks knew just what he was doing. On February 24, Brooks obtained a Visa card and took out a cash advance of $140 from the account. The following day, he purchased a gun for $125. On March 4, Beverly served Brooks with divorce papers, after which he told Beverly that "he was going, to burn the papers" and "that if he didn't know better that he would be afraid of himself." Two days later, shortly after Beverly left for work, Brooks turned up the stereo in the house—to "muffle the sound of the gunshots" and thus keep the upstairs neighbors from hearing them, Brooks, 495 N.E.2d at 414—and shot his sons in the head while they lay sleeping. Brooks' actions immediately after the killings also suggest that he knew what he had done and shamelessly but cogently did not want to be held responsible for it. That same afternoon, he fled Cleveland on a bus bound for Las. Vegas. When apprehended by authorities two days later, Brooks "admitted ownership of an innocuous suitcase found in his possession on the bus" and "stated then that it was his only luggage," but he "didn't tell the police of the luggage containing the murder gun and ammunition and denied any connection to it when it was found and he was confronted with it." Brooks also had his high school diploma and his birth certificate with him at the time. Confronted with these facts, the trial court "rejected [Brooks'] claim of psychogenic amnesia," concluding that Brooks' "denials were lies, not memory lapses." In view of Brooks' behavior shortly before and after the crime, the court also concluded that, even though Brooks suffered from schizophrenia, his "mental illness or defect did not cause him to lack substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law." Stated differently, the court acknowledged that Brooks was suffering from schizophrenia but nonetheless relied upon the evidence of Brooks' behavior shortly before and after the murders to conclude that he willingly, and with "the ability to refrain," "chose to take a gun to the heads of his three sons and execute them through a twisted sense of jealously, hatred, or despair." The court of appeals and supreme court reached the same conclusion. See Brooks, 495 N.E.2d at 414; Brooks, 1985 WL 8589, at *12. Placed in the context of this evidence of Brooks' calculated actions on the one hand and of his strange behavior and schizophrenia on the other, Brooks' undiscovered background evidence—his brother's schizophrenia and Beverly's three additional examples of unusual behavior (Brooks' belief in voodoo, his accusations regarding incest and his actions related to his son's trophies)—does not offer a basis for concluding that this new evidence would have tilted the verdict. It does nothing to alter the unchallenged point that his actions revealed a clear awareness *632 of what he was doing and a desire to avoid responsibility for it. At bottom, the new evidence thus does not "differ in a substantial way—in strength and subject matter—from the evidence actually presented at sentencing." Hill, 400 F.3d at 319. Another problem with the affidavits is that they did not present evidence concerning Brooks' state of mind immediately around the time of the murders. Beverly's affidavit, for instance, referred almost exclusively to events that occurred in 1976-80—at least two years before the murders. Even accepting that Beverly's affidavit presented some previously unknown information, we fail to see how this evidence would have changed the panel's decision. Bertschinger's own testimony indicates that such evidence "would serve little benefit, frankly, without also information directly from the defendant" because "it would not tell [him] directly and concisely about [Brooks] mental state during the time of the offense, and that is what [he was] concerned with." Bertschinger explained: "I am primarily concerned as a forensic psychiatrist about [Brooks' state of mind] that morning of the murders and particularly more related to when that trigger was pulled. . . . The best I have [regarding Brooks' state of mind at that time] is from Mrs. Brooks that [Brooks] appeared reasonably intact from her observations on the night before or the morning before. That is all I have, and without information from Mr. Brooks, there is no way I can give an opinion with reasonable medical certainty either on the issue of sanity, if we were dealing with that, and certainly not on the issue of mitigation." (emphasis added). The sentencing panel reasonably concluded that, regardless of whether Brooks had schizophrenia of any type at the time of the murders, his actions during the hours, days and weeks before and after the murders indicate that he knew what he was doing, knew that it was wrong and could have stopped himself from doing it. See Brooks, 495 N.E.2d at 415 ("The court of appeals realized that appellant suffered from some form of schizophrenia but found appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law . . This court finds that the trial court and court of appeals did not err in concluding that the aggravating circumstances of the crime outweigh any mitigating factors.") (emphasis added). Thus, even if the affidavits suggested that Brooks was more actively schizophrenic at the time of the murders than the evidence at trial showed, the post-conviction court of appeals reasonably determined that the panel's decision would have been the same. III. For these reasons, we affirm.

479 U.S. 1043 107 S.Ct. 908 93 L.Ed.2d 857 MARTIN COUNTY, FLORIDAv.Robert MAKEMSON and Robert G. Udell; OKEECHOBEE COUNTY, FLORIDA v. Robert Lee DENNIS et al No. 86-636 Supreme Court of the United States January 12, 1987 On petition for writ of certiorari to the Supreme Court of Florida. The petition for a writ of certiorari is denied. Justice WHITE, dissenting. 1 Petitioners are two political subdivisions in the State of Florida that have filed a single petition for certiorari, under this Court's Rule 19.4, seeking review of two separate judgments of the Supreme Court of Florida. Both cases present the same federal constitutional question; I set forth the facts in Martin County v. Makemson only. 2 Respondent Robert Makemson was appointed under Florida law to represent a defendant charged with first-degree murder, kidnaping, and armed robbery. Respondent's representation of the defendant spanned a 9-month period, and upon completion of the task respondent petitioned the trial court, pursuant to Fla.Stat. § 925.036 (1985),* for attorney's fees in the amount of $9,500. Section 925.036(2)(d) establishes a limit of $3,500 on compensation to appointed attorneys who represent capital defendants at trial. Notwithstanding this provision, the state trial court awarded respondent the $9,500 he requested, declaring that " 'in setting rigid maximum fees without regard to the circumstances in each case[, § 925.036] is arbitrary and capricious and violates the due process clause of the United States and Florida Constitutions.' " 491 So.2d 1109, 1111 (1986). The Fourth District Court of Appeals quashed the trial court's order declaring § 925.036 unconstitutional and certified several pertinent questions to the Florida Supreme Court. 464 So.2d 1281 (1985). The Supreme Court held, inter alia, that the statute, while facially valid, was unconstitutional as applied to this case. The court reasoned: 3 "[W]e find that the statutory maximum fees, as inflexibly imposed in cases involving unusual or extraordinary circumstances, interfere with the defendant's sixth amendment right 'to have the assistance of counsel for his defense.' The statute, as applied to many of today's cases, provides for only token compensation. The availability of effective counsel is therefore called into question in those cases when it is needed most. 4 * * * * * 5 [Section 925.036] interferes with the sixth amendment right to counsel. . . . [W]e must not lose sight of the fact that it is the defendant's right to effective representation rather than the attorney's right to fair compensation which is our focus." 491 So.2d at 1112. 6 This Court has never held that the Sixth Amendment right to counsel, made applicable to the states by the Fourteenth Amendment, requires the states and their political subdivisions to pay appointed counsel reasonable compensation for their services. Indeed, under our existing cases, I discern nothing in the Sixth Amendment that would prohibit a state from requiring its lawyers to represent indigent criminal defendants without any compensation for their services at all. By my view, Florida had no Sixth Amendment duty to enact § 925.036; it follows a fortiori that the Sixth Amendment does not require the state or its political subdivisions to pay more than the limits established in that statute. This view is consistent with our decision in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). There, the Court held that a state trial court had a duty to assign counsel in a capital case where the defendant was unable to employ an attorney and was incapable of representing himself. The Court asserted that "[a]ttorneys are officers of the court, and are bound to render service when required by such an appointment." Id., at 73, 53 S.Ct. at 65. 7 Even were I not of this view, I would still vote to grant the petition for certiorari because the decisions in these cases conflict with the decisions of other courts. In Williamson v. Vardeman, 674 F.2d 1211, 1214 (1982), for example, the Eighth Circuit held that the courts of Missouri could constitutionally compel private attorneys to represent indigent defendants without compensation for their services. And, in New Jersey v. Rush, 46 N.J. 399, 217 A.2d 441 (1966), the Supreme Court of New Jersey expressly rejected the argument that the Sixth Amendment mandates payment of fees to appointed counsel. The court assumed—perhaps gratuitously—that an attorney had standing to assert the Sixth Amendment right of his client, and stated that it knew "of no data to support a claim that an assigned attorney fails or shirks in the least the full measure of any attorney's obligation to a client. . . . A lawyer needs no motivation beyond his sense of duty and pride." Id., at 405-406, 217 A.2d at 444. 8 This petition presents an important issue of constitutional law that the Court should address. I respectfully dissent from the denial of certiorari. * Florida Stat. § 925.036 (1985) provides, in relevant part: "(1) An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit; however, such compensation shall not exceed the maximum fee limits established by this section. . . . (2) The compensation for representation shall not exceed the following: (a) For misdemeanors and juveniles represented at the trial level: $1,000. (b) For noncapital, nonlife felonies represented at the trial level: $2,500. (c) For life felonies represented at the trial level: $3,000. (d) For capital cases represented at the trial level: $3,500. (e) For representation on appeal: $2,000."

125 Wis.2d 339 (1985) 371 N.W.2d 825 WISCONSIN TELEPHONE COMPANY, Maple Telephone Coop, Inc., Novy's Telephone Company, Turtle Lake Telephone Company, Inc., Briggs & Stratton Corporation, Sentry Insurance Company, Towne Realty, Inc., and West Bend Mutual Insurance Company, Petitioners-Appellants, v. Wisconsin DEPARTMENT OF REVENUE, and Mark Musolf, as Secretary of the Wisconsin Department of Revenue, Respondents.[†] No. 84-243. Court of Appeals of Wisconsin. Submitted on briefs April 3, 1985. Decided June 25, 1985. *341 For the petitioners-appellants the cause was submitted on the briefs of Timothy C. Frautschi and Foley & Lardner of Milwaukee. For the respondents the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Daniel D. Stier, assistant attorney general. Before Dykman, J., LaRocque, J., and Bruce F. Beilfuss, Reserve Judge. BEILFUSS, Reserve Judge. Wisconsin Telephone Company and others appeal from a summary judgment which held sec. 77.52 (2) (a) 4., Stats., constitutional. The issue is whether the sales tax imposed by sec. 77.52 (2) (a) 4. on interstate telephone calls originating in Wisconsin and billed in Wisconsin telephones impermissibly burdens interstate commerce in violation of the commerce clause, U.S. Const. art. I, sec. 8, cl. 3. We hold it does not and affirm the trial court. The facts are undisputed. A typical interstate telephone call made by a customer of appellant telephone companies will usually utilize their facilities, AT&T's Long Lines Department, and facilities of the telephone company which provides service to the person receiving the call in the destination state. Although these interstate long distance telephone calls generally require the use of telephone facilities of at least three companies located in two or more states, the entire cost of each call is billed by an appellant telephone company to the customer. Customers therefore pay appellant telephone companies for services rendered by the companies in Wisconsin and also for services provided by other companies outside Wisconsin. A system exists for sharing the Wisconsin billed revenues with the other states' companies providing telephone facilities used in the completion of the call. Interstate *342 call revenue of all the telephone companies is pooled and allocated pursuant to studies that attempt to determine operating expense and plant investment of the various companies attributable to their interstate operations. Because facilities are used interchangeably for intra and interstate service, the exact proportion of investment dedicated to interstate use cannot be determined. From the monthly "pool" of revenues, the telephone companies and the AT&T Long Lines Department recover their interstate operating expenses, and any excess of revenue over expenses is allocated among them, premised on the ratio of each company's interstate plant investment to the total. The expenses and revenues recovered by the members of the Bell system also include expenses and revenues which are to be settled with and distributed to the independent telephone companies. This "division of revenues" determines the amount of each company's interstate revenues recorded on their books. Thus, there is no necessary relationship between the "billed revenues" and the "booked revenues" of a particular telephone company. Section 77.52 (2) (a)4., Stats., imposes a sales tax on: The sale of telephone services of whatever nature including, in addition to services connected with voice communication, any services connected with the transmission of sound, vision, information, data or material other than by voice communication, and connection, move and change charges, except services paid for by insertion of coins in a coin-operated telephone and except interstate service, unless that interstate service originates from and is charged to a telephone located in this state. The appellants argue that the tax violates the commerce clause because: (1) the interstate telephone "activity" lacks a sufficient nexus with Wisconsin; (2) the *343 tax is not apportioned to activity solely in Wisconsin and therefore creates the risk of multiple taxation of the interstate telephone activity outside Wisconsin; (3) the tax discriminates against interstate commerce; and (4) the tax is not fairly related to services provided by Wisconsin to the appellants. I. STANDARD OF REVIEW The pleadings and affidavits present a claim and defense with no material facts at issue. Because this appeal involves only the application of law to undisputed facts, this court may decide the question independently, without deference to the trial court. Ball v. District No.4, Area Board, 117 Wis. 2d 529, 537, 345 N.W.2d 389, 394 (1984). II. BURDEN OF PROOF The challenger of a statute must prove its unconstitutionality beyond a reasonable doubt. "All statutes are presumed constitutional and will be held to be so unless proven otherwise beyond a reasonable doubt by the party attacking the statute. The cardinal rule of statutory construction is to preserve a statute and find it constitutional if it is at all possible to do so." St. ex rel. Ft. How. Paper v. Lake Dist. Bd., 82 Wis. 2d 491, 505, 263 N.W.2d 178, 185 (1978). The presumption of constitutionality of a tax statute is strongest. Simanco, Inc. v. Department of Revenue, 57 Wis. 2d 47, 54, 203 N.W. 2d 648, 651-52 (1973). We reject appellants' contention that a less demanding burden of proof applies to challenges based on the commerce clause. The appellants rely on State v. Amoco Oil Co., 97 Wis. 2d 226, 293 N.W.2d 487 (1980), and Dean Milk Co. v. Madison, 340 U.S. 349 (1951). The *344 propositions cited by the appellants in these cases do not describe burdens of proof but rather establish standards for determining constitutionality. See Dean Milk, 340 U.S. at 354 (protectionist regulation weighed against character of local interest and availability of other means controlling milk quality); Amoco Oil, 97 Wis. 2d at 251, 293 N.W.2d at 500 (price advertising regulation's local benefit weighed against burden on commerce and availability of other means of regulating deceptive advertising). The constitutional standard sets forth the appropriate analysis while the burden of proof establishes the requisite degree of persuasion in applying that standard. To succeed, appellant telephone companies must show beyond a reasonable doubt that sec. 77.52(2)(a) 4., Stats., impermissibly burdens interstate commerce. Appellants assert that they "are not aware of any cases arising under the commerce clause where a `beyond a reasonable doubt' standard has been applied." This court has applied that standard in a commerce clause case. See State ex rel. Grand Bazaar v. Milwaukee, 102 Wis. 2d 208, 220, 306 N.W.2d 255, 260 (Ct. App. 1981), rev'd on other grounds, 105 Wis. 2d 203, 313 N.W.2d 805 (1982). III. CONSTITUTIONALITY OF TAX Complete Auto Transit v. Brady, Inc., 430 U.S. 274, reh. denied, 430 U.S. 976 (1977), established the standard for determining the constitutionality of a state tax which affects interstate commerce. To withstand a challenge under the commerce clause a tax must: (1) apply to an activity having a substantial nexus with the taxing state; (2) be fairly apportioned; (3) not discriminate against interstate commerce; and (4) be fairly related to the services provided by the state. Id. at 279. *345 A. Substantial Nexus Appellants contend that an interstate phone call originating from and billed to a telephone in Wisconsin does not have a sufficient nexus with Wisconsin to justify the tax. They rely on Midwestern Gas Transmission Co. v. Revenue Dept., 84 Wis. 2d 261, 271, 267 N.W.2d 253, 258 (1978), which struck down a use tax on gas consumed by two compressor stations because the consumption was an integral part of interstate commerce that did not have a substantial nexus with the state. Midwestern Gas involved a gas pipeline from the Manitoba-Minnesota border to Marshfield, Wisconsin. The gas did not come to rest before reaching Marshfield. Wisconsin imposed a tax on the removal of small amounts of gas to power two compressor stations in Wisconsin before the gas reached Marshfield. These compressors provided the pressure needed to propel the gas through the pipeline. The taxpayer did not challenge the consumption tax imposed upon the gas when it reached its final destination. Because the tax was on consumption of small amounts of gas for the purpose of propelling the great bulk of gas in the pipeline in interstate commerce, the court found an insubstantial nexus to the taxing state. Id. at 271, 267 N.W.2d at 258. The appellants argue that Midwestern Gas is on point because the interstate telephone call passing through Wisconsin, like the gas transmission, is taxed midstream in the process of interstate commerce before it has terminated, and without realistic separation from the process. We reject this argument. The sec. 77.52(2) (a) 4., Stats., tax is not imposed on interstate activity midstream, but on the sale at the call's origin, an activity which occurs in Wisconsin. The sellers and buyers of *346 the telephone services are located in Wisconsin. The placing of the telephone call and subsequent billing occur in Wisconsin. These factors sufficiently establish Wisconsin's nexus with these telephone service sales. The same factors establish that the sale of service is a local incident that is separate from the interstate process. See Michigan-Wisconsin P.L. Co. v. Calvert, 347 U.S. 157, 166 (1954) ("It is now well settled that a tax imposed on a local activity related to interstate commerce is valid if, and only if, the local activity is not such an integral part of the interstate process . . . that it cannot realistically be separated from it."). B. Fair Apportionment and Risk of Multiple Taxation Appellants contend that the tax is not fairly apportioned and that it poses the risk of multiple taxation. Fair apportionment requires the avoidance of any unfair burden on interstate commerce resulting from more than one jurisdiction imposing the same tax on the same activity. The court stated in Michigan-Wisconsin P.L., 347 U.S. at 170: [The tax] would "permit a multiple burden upon that commerce," for if Texas may impose this "first taking" tax measured by the total volume of gas so taken, then Michigan and the other recipient states have at least equal right to tax the first taking or "unloading" from the pipeline of the same gas when it arrives for distribution. Oklahoma might then seek to tax the first taking of the gas as it crossed into that State. The net effect would be substantially to resurrect the customs barriers which the Commerce Clause was designed to eliminate. "The very purpose of the Commerce Clause was to create an area of free trade among the several States. That clause vested the power of taxing a transaction forming an unbroken process of interstate commerce in the Congress, not in the States." (Citations omitted.) *347 While sec. 77.52 (2) (a) 4., Stats., is an unapportioned tax, no risk of multiple taxation has been shown. An unapportioned tax, while suspect, is not per se unconstitutional. General Motors Corp. v. Washington, 377 U.S. 436, 448 (1964). The General Motors court held an unapportioned tax constitutional because no actual multiple taxation was shown. 377 U.S. at 449. Other United States Supreme Court opinions require only a showing of a significant risk of multiple taxation to prove a tax unconstitutional. See e.g., Standard Steel Co. v. Wash. Revenue dept., 419 U.S. 560, 563 (1975). We need not resolve the conflict because appellants have failed to satisfy even the lesser standard of showing a significant risk of multiple taxation. A potential for multiple taxation is insufficient to establish a commerce clause violation. The appellants argue that the existence of a gross receipts tax, which is found in eight other states and the District of Columbia, presents a risk of multiple taxation. They contend that revenues transferred from appellant telephone companies to telephone companies in those jurisdictions, pursuant to the pooling and division of revenues from interstate calls, will be subject to a gross receipts tax in those jurisdictions in addition to the Wisconsin sales tax. Wisconsin also imposes a gross receipts tax on appellant telephone companies. Sec. 76.38 (5), Stats. The tax is based on gross revenues derived from toll services which are attributable to Wisconsin. Id. The gross receipts tax and sales tax, however, are imposed on different transactions and property. The sales tax is imposed on the privilege of making retail sales of service to Wisconsin consumers. Sec. 77.52 (2), Stats. The gross receipts tax is a surrogate property tax, which taxes *348 equipment and property as valued by revenue.[1] Sec. 76.38. The appellants have not shown how another jurisdiction might tax the sale of telephone services so as to establish a significant risk of multiple taxation. Practicalities appear to preclude the possibility. The seller is located in Wisconsin; the call originates from and is billed in Wisconsin. No similar sales tax can be practically imposed on the receiving or nonbilled telephone equipment because no sale is made there. The Supreme Court of Alaska reached a similar conclusion in Douglas v. Glacier State Tel. Co., 615 P.2d 580, 588 (Alaska 1980): The Douglases make the bare assertion that a risk of multiple taxation . . . exists here because receipt of a call charged to a phone in the Borough could be taxed by another state to which the call is made. We disagree. The calls taxed by the Borough ordinance are only those charged to phones located within the Borough. Even if sufficient nexus to legally tax these calls in another state exists, the impracticality of doing so, in that the phone in another state is never billed for such calls, makes it extremely unlikely that any state or local entity would attempt to enact such a tax. The Douglases have cited no instance of any such attempt. In addition, no other state would appear to have a legal right equal to Wisconsin's to impose a tax on the *349 sale of telephone service originating and billed in Wisconsin because of the lack of a comparable nexus. Appellants have not shown a significant risk of multiple taxation. C. Discrimination Against Interstate Commerce A tax does not discriminate against interstate commerce if it places interstate and intrastate activities on an equal footing. McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 48-49 (1940). Section 77.52 (2) (a)4., Stats., taxes equally each telephone call originating in Wisconsin and billed to a Wisconsin phone, whether the call is interstate or intrastate. The tax, therefore, does not discriminate against interstate commerce. Appellants contend the tax discriminates against interstate commerce because it creates multiple burdens to which local commerce is not exposed. We rejected the multiple burden argument when discussing apportionment. D. Fair Relationship to Services Provided by the State The test of the tax's fair relationship to the benefits enjoyed is whether the state has given anything for which it can ask for something in return. Wisconsin v. J.C. Penney Co., 311 U.S. 435, 444 (1940). This test is closely related to whether the interstate activity has a substantial nexus with the state. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 625-26 (1981). The measure of the tax must be reasonably related to the extent of the contact with the state because the activity and its participants may properly be made to bear a just portion of the tax burden. Id. at 626. *350 The measure of the tax—the percentage of Wisconsin sales—need not be in precise proportion to the services provided in Wisconsin. A reasonable relation is required, and that standard is met here. The tax is imposed on calls originating from and billed in Wisconsin. Appellants are all incorporated, organized, or doing a substantial share of their business in Wisconsin. They enjoy police and fire protection, and other benefits of doing business within the state. The Commonwealth Edison court said: When a tax is assessed in proportion to a taxpayer's activities or presence in a State, the taxpayer is shouldering its fair share of supporting the State's provision of "police and fire protection, the benefit of a trained work force," and "the advantages of a civilized society." 453 U.S. at 627 (citations omitted). Deference is accorded the legislature's determination of the appropriate level of taxation. Id. The tax is assessed in proportion to the companies' sales in Wisconsin. We conclude the sales tax is reasonably related to the services provided by Wisconsin. IV. Use Tax [7] Lastly, the appellants argue that "the use tax, which would be imposed in the absence of a sales tax, is invalid for the same reasons that the sales tax is invalid." Section 77.52(3), Stats., provides that "[t]he taxes imposed by this section may be collected from the consumer or user." We have concluded that their attack on sec. 77.52(2) (a) 4. is without merit and therefore reject their challenge to sec. 77.52(3). Appellants have not met their burden of proving sec. 77.52 (2) (a) 4., Stats., unconstitutional beyond a reasonable doubt. We therefore affirm the decision of the trial court. By the Court.—Judgment affirmed. NOTES [†] Petition to review pending. This petition was not decided at the time the volume went to press. Its disposition will be reported in a later volume. [1] Intrastate Wisconsin telephone calls are subject to both taxes under secs. 77.52(2) (a) 4., Stats. (sales), and sec. 76.38(5), Stats. (gross receipts). The Wisconsin gross receipts tax is apportioned. Sec. 76.38(5). That Wisconsin interstate calls may be subject to Wisconsin sales tax and some revenues derived from those calls subject to gross receipts tax elsewhere presents no tax burden different from that imposed on intrastate calls. Under these circumstances fair apportionment is not an issue because, as appellants state, "[t]he rationale for the fair apportionment requirement is that, otherwise, there would be a risk of multiple tax burden to which local [i.e. intrastate] commerce is not exposed."

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 1, 2002 Decided June 21, 2002 Nos. 02-5052 & 02-5053 Timothy C. Pigford, et al., Appellees v. Ann M. Veneman, Secretary, United States Department of Agriculture, Appellant Appeals from the United States District Court for the District of Columbia (No. 97cv01978) (No. 98cv01693) Howard S. Scher, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, and Robert M. Loeb, Attorney, U.S. Department of Justice.  Jason A. Levine argued the cause for appellants. With him on the brief were Anthony Herman and Alexander J. Pires, Jr. Before: Sentelle, Randolph and Tatel, Circuit Judges. Opinion for the Court filed by Circuit Judge Tatel. Tatel, Circuit Judge: The question presented in this ap- peal concerns a district court's authority to interpret or modify a consent decree--here, the settlement of a class action brought by over 20,000 African-American farmers charging the United States Department of Agriculture with racial discrimination in lending practices. Due to class coun- sel's failure--"bordering on legal malpractice," the district court called it--to meet critical consent decree deadlines, the district court interpreted the decree to allow extension of such deadlines "so long as justice requires." Although we find that the district court exceeded its interpretive authority under the decree, we hold that class counsel's conduct justi- fies modifying the decree under Federal Rule of Civil Proce- dure 60(b)(5). But because the order does not satisfy the "tailor[ing]" requirement for a Rule 60(b)(5) modification, see Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 383 (1992), we reverse and remand for further proceedings. I. Proceeding under the Equal Credit Opportunity Act, 15 U.S.C. ss 1691-1691f, three African-American farmers filed this class action against the United States Department of Agriculture alleging racial discrimination in the administra- tion of federally funded credit and benefit programs. The class ultimately included 22,000 similarly situated farmers from fifteen states. Shortly before the farmers filed suit, the Department released a report commissioned by then- Secretary Dan Glickman "to address [the agency's] long- standing civil rights problems," documented since the 1960s by numerous federal government "[s]tudies, reports, and task forces." Civil Rights Action Team, USDA, Civil Rights at the United States Department of Agriculture 2-3 (1997), available at http://www.usda.gov/news/civil/cr_next.htm. Ex- amining the "painful history" of its dealings with African- American farmers, the Department concluded that local cred- it and loan agencies responsible for administering Depart- ment programs often discriminated against the farmers. Id. at 6. According to the Glickman report, Department officials had "effectively dismantled" the Office for Civil Rights En- forcement--the very office charged with addressing discrimi- nation complaints. Id. at 47-48 (internal quotation marks and citation omitted). "[O]ften mak[ing] matters worse," the "complaints processing system" was a "bureaucratic night- mare" that "processed [complaints] slowly, if at all," resulting in a huge "backlog," while at the same time the agency "proceed[ed] with farm foreclosures--even where discrimina- tion may have contributed to the farmers' plight." Id. at 22- 25. "Minority farmers," the report concluded, "lost signifi- cant amounts of land and potential farm income as a result of discrimination by [USDA] programs." Id. at 30. After Congress intervened to preserve the farmers' claims by tolling the Equal Credit Opportunity Act's two-year stat- ute of limitations, see Pigford v. Glickman, 185 F.R.D. 82, 88- 89 (D.D.C. 1999) (citing 15 U.S.C. s 1691e(f)), the parties entered into a consent decree. Designed to "ensur[e] that in their dealings with USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons," the decree establishes pro- cedures for resolving class members' individual claims. Con- sent Decree at 2. Specifically, the decree allows class mem- bers to choose between two claims procedures, known as Tracks A and B. In recognition of the fact that "most ... [class] members ... had little in the way of documentation or proof" of either discriminatory treatment or damages suf- fered, Track A awards $50,000 to those farmers able to "meet only a minimal burden of proof." Pigford, 185 F.R.D. at 103. Track B--the mechanism at issue here--imposes no cap on damages, but requires farmers who choose this track, after limited discovery consisting "essentially [of] an exchange of lists of witnesses and exhibits and depositions of the opposing side's witnesses," to prove their claims by a preponderance of the evidence in one-day mini-trials before an arbitrator. Id. at 106. Set forth in paragraph 10 of the decree, Track B establishes strict time frames: the arbitrator sends a hearing notice within 10 days of receiving a Track B claim and holds a hearing no more than 150 days later; at least 90 days before the hearing, the Department and claimant file and serve on each other witness lists, summaries of direct testimony, and copies of all exhibits; discovery ends no later than 45 days before the hearing; and no fewer than 21 days before the hearing, both sides list witnesses they intend to cross- examine and file summaries of all legal and factual issues. Consent Decree p 10(a)-(e). Track A and B decisions are final, except that the losing side may petition for review by a court-appointed monitor. Id. p p 9(a)(v), 9(b)(v), 10(i), 12(b)(iii). Following notice to the class and a hearing, the district court approved the consent decree as "fair, adequate, and reasonable," pursuant to Federal Rule of Civil Procedure 23. Pigford, 185 F.R.D. at 113. According to the district court, the decree represents an "historical first step toward righting the wrongs visited upon thousands of African-American farm- ers for decades by the [USDA]." Pigford v. Veneman, 127 F. Supp. 2d 35, 40 (D.D.C. 2001). Our opinion affirming the district court's approval of the decree noted its importance for both the farmers and the government: the "United States is likely to provide an estimated $2 billion in debt relief and monetary payments in consideration for the dismissal of the class'[s] complaint." Pigford v. Glickman, 206 F.3d 1212, 1214 (D.C. Cir. 2000). Ultimately, 21,546 claims were accepted for review--21,358 under Track A and 188 under Track B. The decree provided for class counsel to receive an advance payment of $1 million in fees to cover decree "implementa- tion." Consent Decree p 14(b). The decree entitled counsel to seek additional fees under the Equal Credit Opportunity Act, 15 U.S.C. s 1691e(d), for their work in connection with filing the action and implementing the decree, Consent De- cree p 14(a). One year into the implementation process, the district court "took the extraordinary step of awarding a second advance"--this time for $7 million. Order of the United States District Court for the District of Columbia at 2 (Mar. 8, 2001) (No. 97cv01978). The Department and class counsel eventually settled all fee claims for $14.9 million. Attorneys and firms sharing the fees were: Alexander J. Pires, Jr., of Conlon, Frantz, Phelan, Pires & Leavy; Phillip L. Fraas, of Tuttle, Taylor & Heron; J.L. Chestnut, of Chestnut, Sanders, Sanders & Pettaway; T. Roe Frazer, of Langston, Frazer, Sweet & Freese; Hubbard Saunders IV, of The Terney Firm; Othello Cross, of Cross, Kearney & McKissic; Gerard Lear, of Speiser Krause; and William J. Smith. Several months after class counsel received their second fee advance and just two weeks prior to the deadline for filing petitions for monitor review for the "vast majority of claim- ants [in both tracks]," class counsel filed an emergency motion seeking an extension of time. Order of the United States District Court for the District of Columbia at 2 (Nov. 8, 2000) (No. 97cv01978). Counsel revealed that they had filed only a small fraction of the total petitions requested by the farmers. Concerned that "counsel's failings ... not be visited on their clients," id. at 3, and relying on "explicit assurances" by counsel as to the work load they could realis- tically shoulder into the future, Pigford v. Veneman, 141 F. Supp. 2d 60, 62 (D.D.C. 2001), the district court permitted counsel to file pro forma petitions by the original deadline and then to either file supporting materials or to withdraw the petitions at the rate of at least 400 petitions per month, see Order of the United States District Court for the District of Columbia at 5-6 (Nov. 8, 2000) (No. 97cv01978). A few months later, the district court observed "a very disturbing trend": class counsel had failed to meet their monthly quota "even once." Pigford, 141 F. Supp. 2d at 62. Worse still, counsel had "drastically cut its staff, bring[ing] Class Counsel's ability to represent the [farmers] into serious question." Id. "[A]larmed by Class Counsel's consistent failure" to meet decree timelines, the district court noted counsel's "remarkable admission that they never had a realis- tic expectation of meeting" agreed-upon or court-ordered deadlines for the monitor review process. Order of the United States District Court for the District of Columbia at 2-3 (Apr. 27, 2001) (No. 97cv01978). The court described counsel's performance as "dismal"--"border[ing] on legal mal- practice"--and "wonder[ed]" whether class counsel would have been in such a predicament had they not filed "three new sister class actions" against the Department. Id. at 2-3 & n.1, 5. The district court eventually imposed a series of escalating daily fines on class counsel for untimely monitor review filings. Pigford v. Veneman, 143 F. Supp. 2d 28, 32 (D.D.C. 2001). Instead of simply submitting materials in support of their clients' petitions in a more timely fashion, however, counsel drastically increased the rate at which they withdrew petitions for monitor review--from 19% to 48%--"once again" leading the district court to "question Class Counsel's fidelity to their clients." Pigford v. Veneman, 148 F. Supp. 2d 31, 33 & n.1 (D.D.C. 2001). Class counsel's failure to cope with their responsibilities extended to the Track B process. Consider the case of Earl Kitchen, a farmer from Arkansas who filed a Track B claim. Kitchen was initially represented by Jesse L. Kearney, a member of one of the firms sharing in the fee award, Cross, Kearney & McKissic. During the course of representing Kitchen, Kearney obtained extensions of several paragraph 10 deadlines either with consent or over the Department's objec- tion. Around the time the Department agreed to pay class counsel $14.9 million, Kearney missed the deadline (already extended by mutual consent) to submit written direct testimo- ny. Kearney's failure could have drastic consequences, for absent submission of testimony, Kitchen's claim will "be extinguished." Appellees' Br. at 12; see also Consent Decree p 10(g) (putting the burden of proof on the claimant). In the meantime, the district court, deeply concerned about the decree's viability, asked the American Bar Association Committee on Pro Bono and Public Services to "assemble a team of pro bono lawyers to assist Class Counsel on an emergency basis." Order of the United States District Court for the District of Columbia at 7 (Apr. 27, 2001) (No. 97cv01978). In response, lawyers from the Pro Bono Com- mittee and the firms of Arnold & Porter and Crowell & Moring recruited some of Washington's largest law firms: Covington & Burling; Sidley, Austin, Brown & Wood; Step- toe & Johnson; Swidler, Berlin, Shereff & Friedman; and Wilmer, Cutler, and Pickering. The district court, recogniz- ing the competing demands on class counsel arising out of their representation of multiple claimants in both tracks and at various stages of the claims resolution process, hoped that this added assistance would lift the "heavy burden of Track B litigation from the shoulders of Class Counsel," enabling them to "focus on the petition [for monitor review] process." Pig- ford, 143 F. Supp. 2d at 30 n.1. Pro bono counsel took over the representation of Earl Kitchen and asked the Department to extend the time for filing written direct testimony. The Department refused. As a result and because class counsel had apparently missed deadlines in other Track B cases, pro bono counsel filed a "motion to endow," asking the district court "to interpret (and if necessary, to modify) the Consent Decree, so that Arbitra- tors have discretion to extend deadlines when strict compli- ance with the original scheduling framework would defeat the Decree's overarching remedial purposes." Pls.' Mot. to En- dow at 1. Granting the motion, the district court found it "implicit" in the Decree's terms that arbitrators have such discretion. Pigford v. Veneman, 182 F. Supp. 2d 50, 53 (D.D.C. 2002). The Department appeals. At its request, we entered a stay pending appeal. II. District courts possess two types of authority over consent decrees. First, they may interpret and enforce a decree to the extent authorized either by the decree or by the related order. See Bd. of Trustees of Hotel & Rest. Employees Local 25 v. Madison Hotel, Inc., 97 F.3d 1479, 1484 n.8 (D.C. Cir. 1996) (observing that a district court retains enforcement jurisdiction over a settlement if litigants so provide in their stipulation of dismissal or the dismissal order incorporates the settlement terms). Second, they may modify a decree pursuant to Federal Rule of Civil Procedure 60(b)(5). See Rufo, 502 U.S. at 378-79 (holding that the Rule 60(b)(5) standard for modifying judgments applies to consent de- crees). These two sources of authority reflect a consent decree's hybrid character, having qualities of both contracts and court orders. See id. at 378 (explaining that a consent decree "is contractual in nature" but also "an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree"). The farmers based their "motion to endow" on both sources of authority. In granting the motion, the district court explained that it was exercising its "authority to enforce and to interpret an approved Consent Decree." Pigford, 182 F. Supp. 2d at 51. Although the court thus never addressed the question of its Rule 60(b)(5) authority, the farmers main- tain that we may affirm the order on either ground. We consider each in turn. Interpretation and Enforcement Reasoning that the decree "explicitly allows for its con- struction in a liberal manner," and that paragraph 10 "dele- gate[s]" the district court's authority over Track B claims to arbitrators, the district court found it "implicit in the terms of the Consent Decree" that arbitrators "have essentially the same authority over Track B hearings that a trial judge would have over a trial or related pre-trial proceedings," including "discretion to allow for revision of certain deadlines, even after the deadlines have passed, so long as justice requires the revisions and provided that the burden on the defendant is not so great as to outweigh the interest of the claimant in fully presenting his or her claim." Id. at 51-53. The Department argues that the consent decree gives the district court no such authority. According to the Depart- ment, the district court's only authority either to interpret or enforce the consent decree comes from paragraph 13, which "concern[s] ... alleged violation[s] of any provision of th[e] ... Decree," and directs "[t]he person seeking enforcement of a provision of th[e] ... Decree" to attempt to resolve any problems without court intervention and then to seek enforce- ment through contempt proceedings. Consent Decree p 13; see also id. p 21 (retaining the court's authority to enforce the decree through contempt proceedings). Since the farmers neither alleged a violation nor invoked the procedures for "seeking enforcement," the Department contends that the district court lacked jurisdiction to consider the "motion to endow." Defending the district court's order and relying on our statement in Beckett v. Air Line Pilots Ass'n that it is a "well-established principle that a trial court retains jurisdic- tion to enforce its consent decrees," 995 F.2d 280, 286 (D.C. Cir. 1993), the farmers argue that the order was "properly grounded on jurisdiction 'ancillary' to that explicitly conferred by paragraph 13," Appellees' Br. at 21. Pursuant to this "ancillary jurisdiction," the farmers contend, the district court properly "enforce[d]" the decree's "overarching remedial pur- poses." Id. at 20. The farmers also argue that quite apart from paragraph 13, the district court had "inherent" authority to interpret the decree. Id. at 21. We agree with the Department. In Kokkonen v. Guardian Life Insurance Co. of America, the Supreme Court held that a district court lacked "ancillary jurisdiction" to enforce a consent decree because neither the decree nor the order dismissing the case expressly retained jurisdiction to do so. 511 U.S. 375, 380-81 (1994). Although Kokkonen differs from the situation here--the consent decree in this case does retain certain enforcement jurisdiction--the decision teaches that district courts enjoy no free-ranging "ancillary" jurisdiction to enforce consent decrees, but are instead constrained by the terms of the decree and related order. See id. at 381 (explaining that if the dismissal order had retained jurisdic- tion or incorporated the settlement, then "a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist"). Accordingly, an enforcement clause limited by its plain lan- guage, as is paragraph 13, to situations involving decree violations confers no ancillary jurisdiction to enforce the decree's "overarching ... purposes." Indeed, when the dis- trict court approved the decree, it observed that the parties added the enforcement provision because the original version "appeared to prevent the Court from exercising jurisdiction in the event that the USDA did not comply with [its] terms," Pigford, 185 F.R.D. at 110, bolstering our view that the enforcement provision means what it says. Beckett does not warrant a different result. Not only did the Beckett decree preserve the district court's "jurisdiction over [the] case to enforce the terms of [the] ... decree," 995 F.2d at 286, but the party seeking enforcement in Beckett-- unlike the farmers here--alleged that the other party had violated the decree's terms, id. at 281. Equally unpersuasive is the farmers' argument that we need not worry about paragraph 13's limitations because the district court possesses "inherent" interpretive power over the decree "whether or not for explicit enforcement pur- poses." Appellees' Br. at 21. For one thing, we see no way the district court's interpretive authority can be unhinged from its enforcement authority. If the district court lacks paragraph 13 enforcement authority (because the farmers alleged no violation), then the farmers gain nothing from an interpretation that arbitrators may adjust paragraph 13 dead- lines. Furthermore, none of the appellate cases cited by the farmers supports their assertion that "many cases ... have recognized the 'inherent' jurisdiction of courts to interpret consent decrees," id., apart from any enforcement power. Two of the cases involved decree modifications, not interpre- tations. See Waste Mgmt. of Ohio, Inc. v. Dayton, 132 F.3d 1142, 1146 & n.4 (6th Cir. 1997); Alberti v. Klevenhagen, 46 F.3d 1347, 1365 (5th Cir. 1995). The third upheld, as a valid consent decree interpretation, a district court's imposition of interim deadlines not specified in the decree. See Juan F. By and Through Lynch v. Weicker, 37 F.3d 874 (2d Cir. 1997). The order in that case, however--unlike the one here--provided for court intervention "when plaintiffs showed the defendant was 'likely' to be in noncompliance"; the addi- tional deadlines represented a permissible interpretation be- cause they served to "ensur[e] compliance." Id. at 879. Our conclusion that the district court's interpretive and enforcement authority depends on the terms of the decree and related court order, rather than on some "ancillary" or "inherent" power, comports with a consent decree's contrac- tual character. See Rufo, 502 U.S. at 378. In this case, for example, the farmers and the Department bargained over Track B's time frames. Track B's "abbreviated and unambig- uous deadlines," the Department candidly tells us, serve its interests by "limit[ing] the number of class members who ... opt for the Track B process and ... enhanc[ing] the govern- ment's ability to defend against [those] claims." Appellant's Br. at 24-25. The parties also bargained over paragraph 13, agreeing to limit district court enforcement authority to situa- tions where the decree is violated. To now hold that the district court, through either some "ancillary" authority to enforce the decree absent a violation or "inherent" authority to interpret it, may permit extensions of Track B deadlines would not only deny the Department the benefit of its bar- gain, but would also discourage settlements. Who would sign a consent decree if district courts had free-ranging interpre- tive or enforcement authority untethered from the decree's negotiated terms? Modification The farmers argue that even if the district court lacked authority to interpret the decree to allow extension of Track B deadlines, we may still affirm the order as a proper modification pursuant to Rule 60(b)(5). This rule permits courts, "upon such terms as are just," to "relieve a party or a party's legal representative from a final judgment, order, or proceeding ... [if] it is no longer equitable that the judgment should have prospective application." "[A] significant change in circumstances," the Supreme Court has held, may "war- rant[ ] revision of [a] decree." Rufo, 502 U.S. at 383. Such changed circumstances include "unforeseen obstacles" that make a decree "unworkable." Id. at 384. Any modification must be "suitably tailored to the changed circumstances." Id. at 383. According to the farmers, two "significant change[d] ... circumstances" make the consent decree "unworkable." They first point to a "dramatic and unexpected expansion in class size"--from 2000 (the number originally estimated) to 22,000 (the final number). Appellees' Br. at 31. As the Department points out, however, at the time the district court approved the decree, the parties realized the class already had between "15,000 and 20,000" members. Pigford, 185 F.R.D. at 94. Although this may well suggest that the actual increase was not "significant" enough to justify modification, we decline to resolve that issue, for the district court did not rely on the larger class size as a basis for the order at issue here. Class counsel's "inability to represent all Track B claimants adequately," Pigford, 182 F. Supp. 2d at 52, the farmers next argue, also provides a basis for a Rule 60(b)(5) modification. The Department concedes not only that counsel for "Kitchen and a number of other class members" committed "what appears to be malpractice," but also that this represents a "relevant new fact." Appellant's Br. at 28. Even so, the Department insists, the farmers' remedy is not to deny the Department the benefit of its bargained-for Track B dead- lines, but rather to sue class counsel for malpractice. " '[C]lients must be held accountable for the acts and omis- sions of their attorneys.' " Id. at 29 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 396-97 (1993)). As a general matter, the Department is correct. In Link v. Wabash Railroad Co., the case on which the Department primarily relies, the Supreme Court held that the failure of plaintiff's lawyer to attend a pretrial conference justified dismissing the case for want of prosecution. 370 U.S. 626, 633 (1962). Because plaintiff "voluntarily chose [his] attorney as his representative," the Court held, he could "[ ]not ... avoid the consequences of the acts or omissions of this freely selected agent." Id. at 633-34.  Neither Link nor any other case the Department cites, however, was a class action. In this case, except for the three named plaintiffs, not one of the thousands of class members "voluntarily chose" class counsel. Quite to the contrary, by certifying the class, the district court effectively appointed counsel for the farmers. Under Rule 23(a)(4), moreover, the district court, as a condition of class certification, had to find that class counsel would "adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4); see also McCarthy v. Kleindienst, 741 F.2d 1406, 1411 n.3 (D.C. Cir. 1984) (noting that Rule 23's requirement of adequate representation encom- passes "concerns about the competency of class counsel" (internal quotation marks and citation omitted)). Exercising this responsibility, the district court found that "Mr. Alexan- der Pires and Mr. Phillip Fraas as lead counsel and Mr. J.L. Chestnut, Mr. Othello Cross, Mr. T. Roe Frazer, Mr. Hub- bard T. Saunders, IV, Mr. Gerald Lear and Mr. James Myart, Jr., all serving as of counsel ... demonstrated that they will advocate vigorously for the interests of the class" and there- fore "adequately will represent the interests of the class." Pigford v. Veneman, 182 F.R.D. 341, 350 (D.D.C. 1998). In so distinguishing Link, we do not mean to suggest that the presumption of client accountability for attorney conduct has no applicability in class actions. Certainly a contrary rule would make class action settlements problematic. Moreover, the Rule 23(a)(4) finding of class counsel adequacy may partially substitute for the free choice found in conventional non-class litigation. Like most presumptions, however, this one is rebuttable. And in litigation involving a class--defined from the outset by its numerosity--where counsel is not in fact freely chosen by class members, it is logical that the presumption should be more easily overcome than if the clients had in fact freely chosen their attorneys. At oral argument, the Department pointed out that even though the farmers may not have "freely selected" class counsel to pursue the underlying litigation, the decree per- mits them to choose other lawyers for Track A or B represen- tation. Accordingly, the Department argues, holding the farmers accountable for their lawyers' dismal performance is perfectly appropriate. We disagree. Although the decree technically permits class members to retain other lawyers, we think the circumstances of this case, together with the terms of the decree itself, make such choices unlikely. For one thing, the decree prohibits lawyers from charging for their work in claims proceedings, see Consent Decree p 5(e), so lawyers desiring payment must seek fees pursuant to the Equal Credit Opportunity Act, 15 U.S.C. s 1691e(d). Class counsel, however, received an advance fee award to provide such services. Class counsel also benefit from the district court's Rule 23 seal of approval. No wonder Earl Kitchen (the only claimant for whom the record contains relevant information) was represented by Jesse Kearney, a member of one of the firms that shared in the fee advance and ultimately the $14.9 million settlement. Because Kitchen did not "volun- tarily cho[o]se" Kearney in the usual sense, we see no basis for holding Kitchen responsible for Kearney's failure to file direct testimony on time. Contrary to the Department's argument, we see nothing unfair about this result. Although we have no doubt that the Department expected Track B's tight deadlines to discourage claims--even to make them less winnable--the Department never counted on class counsel's virtual malpractice. Indeed, the decree itself assumes competent representation for the farmers. The decree's express purpose is to "ensur[e] that in their dealings with USDA, all class members receive full and fair treatment," Consent Decree at 2, and its "main accom- plishment was the establishment of a process to adjudicate individual claims." Opinion and Order of the United States District Court for the District of Columbia at 8 (Mar. 8, 2001) (No. 97cv01978) (emphasis added). Unless the farmers have competent counsel, we cannot imagine how they could ever obtain "full and fair treatment" in a claims process where (as in Kitchen's case) missing a single deadline could be fatal. For all of these reasons, we conclude that class counsel's failure to meet critical Track B deadlines amounts to an "unforeseen obstacle" that makes the decree "unworkable." Rufo, 502 U.S. at 384. To hold otherwise would sanction the farmers' double betrayal: first by the Department, see Civil Rights at the United States Department of Agriculture 2-30, and then by their own lawyers. Having said all this, however, we cannot affirm the chal- lenged order as a proper Rule 60(b)(5) modification because of Rufo's second requirement--that the modification be "suit- ably tailored to the changed circumstances." 502 U.S. at 391. Because the district court viewed its order as an interpreta- tion, not a modification, it had no occasion to consider the tailoring requirement. In our view, the order, vesting arbi- trators with generic authority to revise deadlines "so long as justice requires," Pigford, 182 F. Supp. 2d at 52-53, is far too broad. Although the order restores the farmers to the position in which they would have been but for counsel's dismal performance (it may even, as the Department argues, put them in a better position), the order potentially deprives the Department of all Track B deadlines. By contrast, a "suitably tailored" order would return both parties as nearly as possible to where they would have been absent counsel's failures. In Kitchen's case, a properly "tailored" remedy would, for example, reset the Track B clock at the point in the process where Kearney dropped the ball, establishing a new deadline for submitting direct testimony and leaving subsequent deadlines unchanged. Whatever tailoring method the district court ultimately adopts, see United States v. Western Elec. Co., 46 F.3d 1198, 1207 (D.C. Cir. 1995) (recog- nizing a district court's "considerable discretion" in fashioning a Rule 60(b)(5) modification), it must preserve the essence of the parties' bargain: for the farmers, an opportunity to have their individual claims pursued by competent counsel; and for the Department, the benefit of the consent decree's tight deadlines. III. We reverse the district court's order and remand the case for proceedings consistent with this opinion, Rule 60(b)(5), and Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 377 (1992). See 28 U.S.C. s 2106 (authorizing federal appel- late courts to "remand the cause and ... require such further proceedings to be had as may be just under the circum- stances"). So ordered.

535 F.2d 1242 Levinv.Gabriel No. 75-7241 United States Court of Appeals, Second Circuit 11/18/75 1 S.D.N.Y. AFFIRMED

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1170 PATRICIA FLANIGAN, Plaintiff – Appellant, v. FAYETTEVILLE STATE UNIVERSITY, Defendant - Appellee. No. 16-1171 PATRICIA GRIFFIETH FLANIGAN, Plaintiff – Appellant, v. FAYETTEVILLE STATE UNIVERSITY, Defendant - Appellee. Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:15-cv-00448-FL; 5:15-cv-00527-FL) Submitted: August 24, 2016 Decided: September 13, 2016 Before THACKER and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Kirk J. Angel, ANGEL LAW FIRM, PLLC, Concord, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Stephanie A. Brennan, Special Deputy Attorney General, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Patricia Griffieth Flanigan appeals the district court’s order granting Fayetteville State University’s motions to dismiss her harassment and retaliation claims, brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2012). We have considered the parties’ arguments and discern no reversible error. Accordingly, we affirm the district court’s judgment. Flanigan v. Fayetteville State Univ., Nos. 5:15-cv-00448-FL, 5:15-cv-00527-FL (E.D.N.C. Jan. 19, 2016). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

25 A.3d 277 (2011) COMMONWEALTH of Pennsylvania, Appellee v. Steven HUTCHINSON, Appellant. No. 517 CAP Supreme Court of Pennsylvania. Submitted June 26, 2008. Decided August 22, 2011. *283 David Lee Zuckerman, Defender Association of Philadelphia, Philadelphia, for Steven Hutchinson. Hugh J. Burns, Jr., Philadelphia District Attorney's Office, Philadelphia, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania. BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. OPINION Justice McCAFFERY. This is an appeal from the denial of guilt phase relief sought by Steven Hutchinson ("Appellant") in a petition filed pursuant to the Post Conviction Relief Act ("PCRA").[1] Concluding that the ruling of the PCRA court is supported by the record and free of legal error, we affirm. On December 9, 1999, a jury convicted Appellant of first-degree murder and other crimes for shooting to death one of his girlfriends, Stephanie Epps, in front of her two young children. The children had testified at trial, unequivocally identifying Appellant as the individual who had shot their mother. Appellant had presented an alibi defense, attempted to undermine the credibility of the children's testimony, and advanced the theory that the victim's estranged *284 husband was responsible for the murder. The jury returned a verdict of death, and on direct appeal, this Court affirmed both Appellant's conviction and death sentence. Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556 (2002). Appellant then filed a PCRA petition, raising numerous guilt and penalty phase claims. After oral argument on February 21, 2006, and with the agreement of the Commonwealth, the PCRA court entered an order on July 25, 2006, granting Appellant a new penalty phase hearing. Shortly thereafter, on August 9, 2006, the same court entered another order denying all of Appellant's guilt phase claims. Appellant has now appealed from the denial of his guilt phase claims, raising ten issues for our review.[2] Our standard of review requires us to determine whether the ruling of the PCRA court is supported by the record and is free of legal error. Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA court's credibility determinations are binding on this Court when they are supported by the record. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532, 539 (2009). However, this Court applies a de novo standard of review to the PCRA court's legal conclusions. *285 Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790, 810 (2007). To prevail on a petition for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his or her conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include a violation of the Pennsylvania or United States Constitution or ineffectiveness of counsel, either of which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i) and (ii). In addition, a petitioner must show that the claims of error have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An issue has been waived "if the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state post[-]conviction proceeding." 42 Pa.C.S. § 9544(b). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2). The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied "that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). "[T]o obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004). Appellant's first seven issues allege ineffective assistance of his trial counsel and appellate counsel. We begin our analysis of these issues with the presumption that counsel is effective; the burden of proving otherwise rests with the petitioner. Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666, 678 (2009). Accordingly, to prevail on his claims of ineffective assistance of counsel, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) Appellant suffered prejudice because of counsel's action or inaction. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008) (citing, inter alia, Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). With regard to the second, i.e., the "reasonable basis" prong, we will conclude that counsel's chosen strategy lacked a reasonable basis only if Appellant proves that "an alternative not chosen offered a potential for success substantially greater than the course actually pursued." Cox, supra at 678 (quoting Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006)). To establish the third prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel's action or inaction. Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008). Because Appellant's direct appeal was decided in October 2002, approximately two months before this Court's decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), Appellant was required to raise claims of trial counsel ineffectiveness at the time that he obtained new counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (requiring that a petitioner raise claims of trial counsel ineffectiveness at the time he *286 or she obtained new counsel). Although this Court overruled Hubbard in Grant, Hubbard was the prevailing law when Appellant's direct appeal was decided. See Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80, 85 (2008). Therefore, because the record shows that new counsel was appointed to represent Appellant on direct appeal, Appellant was required to raise claims of trial counsel ineffectiveness at that time.[3] Accordingly, pursuant to the PCRA's statutory mandates, any claims of trial counsel ineffectiveness not raised on direct appeal have been waived. See 42 Pa.C.S. § 9544(b); Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 13 (2008). Appellant may properly raise claims of appellate counsel ineffectiveness under the PCRA, including claims of appellate counsel ineffectiveness grounded in a failure to raise trial counsel ineffectiveness on direct appeal. Cox, supra at 678-79; Dennis, supra at 954-55; Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 595 (2007) (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1022 (2003)). However, such claims must be "layered," i.e., argument must be presented as to each prong of the Pierce test for each layer of allegedly defective representation. Dennis, supra at 954-55; Washington, supra at 595. To establish the first, i.e., the "arguable merit" prong of a claim of appellate counsel ineffectiveness for failure to raise a claim of trial counsel ineffectiveness, a petitioner must prove that trial counsel was ineffective under the Pierce standard. Dennis, supra at 955; Washington, supra at 595. If a petitioner cannot prove that trial counsel was ineffective, then petitioner's derivative claim of appellate counsel ineffectiveness must also fail, and the court need not consider the other two prongs of the Pierce test as applied to appellate counsel ineffectiveness. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 224 (2007). It is important to recognize that a claim of appellate counsel ineffectiveness for failing to raise a claim of trial counsel ineffectiveness is distinct from a claim of appellate counsel ineffectiveness grounded in the manner in which appellate counsel litigated a claim of trial counsel ineffectiveness on appeal. See Tedford, supra at 16. In the former case, the claim of trial counsel ineffectiveness has been waived, and the appellant must show that appellate counsel was ineffective for failing to raise the claim; however, in the latter case, the claim of trial counsel ineffectiveness claims has been previously litigated, and the appellant must show that appellate counsel was ineffective in the manner in which he or she litigated the claim. We turn now to Appellant's claims of appellate counsel ineffectiveness. 1. Batson Claim of Racial Discrimination in Jury Selection In Appellant's first issue, he contends that trial and direct appeal counsel were ineffective for failing to raise the claim that the Commonwealth had used its peremptory strikes in a discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Appellant's Brief at 13. To support this contention, Appellant proffers the following: (1) the prosecutor struck African-American venirepersons at approximately *287 twice the rate of non-African-American venirepersons; and (2) a policy of racial discrimination in jury selection within the Philadelphia District Attorney's Office was allegedly suggested by the existence of two particular training lectures, delivered by then-Assistant District Attorneys Jack McMahon and Bruce Sagel. In Batson, supra at 89, 106 S.Ct. 1712, the United States Supreme Court held that "the Equal Protection Clause forbids a prosecutor to challenge potential jurors solely on account of their race." Accordingly, the United States Supreme Court permitted "an individual defendant to show that he was denied equal protection by the prosecutor's improper exercise of peremptory challenges in a racially discriminatory manner in his individual case." Commonwealth v. Daniels, 600 Pa. 1, 963 A.2d 409, 434 (2009). We have previously explained the framework for analyzing a Batson claim as follows: First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors on account of race; second, if the prima facie showing is made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror(s) at issue; and third, the trial court must then make the ultimate determination of whether the defense has carried its burden of proving purposeful discrimination. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 602 (2008) (quoting Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1042 (2002)). However, when, as here, defense counsel did not raise or preserve any claim of racial discrimination in jury selection with a contemporaneous Batson objection at trial, we have repeatedly held that the Batson framework does not apply. See, e.g., Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1142 (2009);[4]Daniels, supra at 434 (citing Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 87 (2004)). Rather, when a claim of racial discrimination in jury selection has not been preserved, a post-conviction petitioner "bears the burden in the first instance and throughout of establishing actual, purposeful discrimination by a preponderance of the evidence." Ligons, supra at 1142. In the instant case, Appellant contends that he has established a pattern of racial discrimination in jury selection based on the disparity in the percentages of African-American versus white venirepersons that the prosecutor struck by peremptory challenges. He alleges that Assistant District Attorney William Fisher, who prosecuted his case, struck 10 out of 16 African-American venirepersons (62.5%), but struck only 8 out of 25 non-African-American venirepersons (32.0%), yielding a jury composed of 3 African-Americans, 8 white persons, and 1 person of unknown race. See Appellant's Brief at 14-15 & n. 7. In denying Appellant's claim, the PCRA court pointed out that 53 persons were eligible to be struck by either the Commonwealth or the defense; of this total, *288 20 were African-American and 33 were non-African-American. The Commonwealth used 18 of its available 20 peremptory strikes, 10 against African-Americans and 8 against non-African-Americans. The defense used 21 strikes, 8 against African-Americans and 13 against non-African-Americans. Of the 8 African-Americans struck by the defense, the Commonwealth had accepted 4 of them before they were struck by the defense. PCRA Court Opinion, dated 10/25/06, at 3. The PCRA court determined that the voir dire record as a whole refuted on its face Appellant's claim of discrimination in jury selection. Id. We see no abuse of discretion with regard to the PCRA court's determination, and repeat our conclusion in Ligons, supra at 1144: "While it is clear that the prosecutor peremptorily struck more African Americans than Caucasians, this fact, in and of itself, is insufficient to demonstrate purposeful discrimination when considering the totality of the circumstances." The additional allegations that Appellant proffers, even when taken together with the argument based on peremptory strikes discussed above, likewise do not demonstrate purposeful discrimination. Appellant contends that, in seven other capital cases tried before juries between 1991 and 1997, Mr. Fisher likewise struck a higher percentage of African-American venirepersons than non-African-Americans. Appellant proffers similar statistics for the District Attorney's Office as a whole.[5] We have previously held that such statistical analyses, taken individually or collectively, do not satisfy a petitioner's burden to establish actual, purposeful discrimination in his or her own case. Ligons, supra at 1145. The only other evidence that Appellant proffers to support his Batson claim is the existence of the McMahon and Sagel training lectures. Appellant references specifically a videotape of the McMahon lecture and handwritten notes by then-A.D.A. Gavin Lentz from the Sagel lecture. On numerous occasions, we have condemned in the strongest possible terms the tactics and practices expounded in the McMahon lecture as violative of basic constitutional principles. See, e.g., Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 722 (2008); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 731 n. 12 (2000). We do so again here. However, we have also made clear that the mere existence of the McMahon and Sagel lectures establishes neither a general policy in the District Attorney's Office of racial discrimination in jury selection, nor the presence of racial discrimination in jury selection in an individual case when a prosecutor other than McMahon or Sagel represented the Commonwealth. See Ligons, supra at 1145-46 (rejecting the appellant's Batson claim of a "culture of discrimination" based on the McMahon lecture videotape and Sagel lecture notes because there was no connection to the appellant's individual case); Clark, 961 A.2d at 96 (rejecting a Batson claim that was based on the McMahon lecture videotape and Sagel lecture notes and emphasizing that "the evidence offered in a Batson claim must be grounded in the particular facts of the appellant's case"); Marshall, supra at 722 & n. 7 (rejecting the appellant's Batson claim *289 based on the McMahon lecture videotape and Sagel lecture notes because neither McMahon nor Sagel was involved in the appellant's prosecution); Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 48-49 (2002) (rejecting a Batson claim because Mr. McMahon had not prosecuted the case, and the appellant offered only speculation that the McMahon training lecture had, in any way, affected the assistant district attorney who did try his case years later); Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 589 (2000) (rejecting the suggestion that Mr. McMahon's statements in the training lecture governed the conduct of a different prosecutor merely based on the fact that both attorneys worked in the Philadelphia District Attorney's Office). In Appellant's case, the prosecutor was William Fisher, and Appellant has not alleged any connection between Mr. Fisher and either Mr. McMahon or Mr. Sagel or their lectures. Furthermore, the two lectures were delivered, respectively, twelve and nine years before Appellant's trial.[6] In sum, we conclude that the denial of Appellant's Batson claim by the PCRA court is supported by the record and is legally sound. Appellant's proffered evidence does not establish actual, purposeful discrimination in jury selection. Appellant has cited no occurrence at trial, no words of the prosecutor or defense counsel or trial judge, and no action by the court that could lead to an inference of racial discrimination in jury selection. Because Appellant's Batson claim is meritless, he is unable to prove a claim of trial counsel ineffectiveness for failing to raise a Batson objection at trial, and hence his derivative claim of appellate counsel ineffectiveness also must fail. 2. Colloquy of Juvenile Witnesses in the Presence of the Jury In Appellant's second issue, he asserts that trial counsel and direct appeal counsel were ineffective for failing, respectively, to object to and to raise a claim regarding the presence of the jury during the colloquy to determine competency of the two juvenile witnesses. The witnesses in question were the victim's minor children, Desiree, a nine-year old girl, and Philip, a twelve-year-old boy,[7] both of whom had witnessed the murder of their mother. Appellant contends that the presence of the jury during the colloquy of these witnesses constituted per se error under the rule promulgated by this Court in Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998). Although competency of a witness is generally presumed, Pennsylvania law requires that a child witness be examined for competency. See Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 39 (2003) (citing Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959) and Pa.R.E. 601).[8] As we have recently reiterated, *290 "this Court historically has required that witnesses under the age of fourteen be subject to judicial inquiry into their testimonial capacity." Commonwealth v. Ali, 10 A.3d 282, 300 n. 11 (Pa.2010). "A competency hearing of a minor witness is directed to the mental capacity of that witness to perceive the nature of the events about which he or she is called to testify, to understand questions about that subject matter, to communicate about the subject at issue, to recall information, to distinguish fact from fantasy, and to tell the truth." Delbridge, supra at 45. In Pennsylvania, competency is a threshold legal issue, to be decided by the trial court. Commonwealth v. Dowling, 584 Pa. 396, 883 A.2d 570, 576 (2005). In Washington, supra, the decision on which Appellant relies, defense counsel raised a challenge to the competency of the two complainants, who were eight and nine years old at the time of the appellant's trial for sexual offenses against them. Defense counsel sought a competency hearing outside the presence of the jury, but the trial judge denied this motion; instead, the prosecutor and defense counsel conducted voir dire of the child witnesses before the jury. Id. at 644-45. The children were questioned about a variety of personal matters, including their ages, birthdays, siblings, schools, teachers, and Christmas presents; about discussions with the assistant district attorney regarding their testimony; and about the difference between telling the truth and telling a lie. Id. at 645. When, at the end of voir dire, defense counsel objected to the witnesses' competency, the trial judge overruled the objection and specifically stated in the presence of the jury that the witnesses were competent. Id. No cautionary instruction was given to the jury regarding the significance or limitations of this ruling. Trial proceeded, and the appellant was convicted. On appeal before this Court, the appellant argued that permitting the jury to observe voir dire and to hear the trial court's competency ruling left the impression that the trial court was endorsing the credibility of the witnesses. Id. In addition, the appellant argued that the witnesses' repeated assertions that they were telling the truth unfairly bolstered their testimony. Id. at 645-46. A majority of this Court accepted the Washington appellant's arguments and accordingly granted him a new trial. In reaching this decision, the Court first reiterated the distinction between a competency determination, which is a legal issue for the court, and a credibility determination, which is a factual issue for the jury, and then concluded that the "invariable result of a jury's presence during competency proceedings is that the truth determining process exclusively reserved for the jury is influenced by the inquiry into competency." Id. at 646. Thus, even with a cautionary instruction, which was not given in Washington, when the competency proceedings take place in the presence of the jury, they "inevitably permeate[ ] into the veracity determination assigned exclusively to the jury." Id. at 647. Moreover, the Court expressed concern that a trial judge's ruling of competence would be interpreted by the jury as a judicial endorsement of the witness's credibility. Id. at 646. Based on these considerations, the Court set forth a per se rule requiring that the jury not be present during a competency hearing for a child witness. Id. at 647. In promulgating this rule, the Court recognized that some "foundational questioning" *291 might be duplicated during the trial proceedings. Such duplication arises from the fact that evidence relevant to the foundational requirement of competency is also relevant, in many instances, to the weight and credibility accorded to a witness's testimony. Washington, supra at 647 (citing State v. Harris, 1988 WL 38034 (Ohio App. 5 Dist.1988)); see also id. at 648 (Castille, J., dissenting opinion) (arguing that voir dire of a child witness is more appropriately conducted in the presence of the jury because the jury, in order to assess credibility and weight to be accorded the testimony, must be able to determine whether the child understands the meaning of an oath to tell the truth).[9] *292 In the instant case, there is no indication from the record that defense counsel challenged the competency of the juvenile witnesses at any time prior to, during, or after trial. There was no separate, formal competency hearing; rather, a brief voir dire of the juvenile witnesses was conducted at trial, in the presence of the jury, immediately prior to the witnesses' direct examination as to events on the day of their mother's murder. In its entirety, voir dire of Desiree, the victim's nine-year-old daughter, was as follows: Court Officer: What is your name? Desiree: Desiree. Court Officer: Desiree, what is your last name? Desiree: Epps Court Officer: Do you know what the deference [sic] between telling the truth and telling a lie is? Desiree: Yes. Court Officer: If I asked you to swear on that Bible that you would tell the truth, the whole truth and so help you God, would you understand that? Desiree: Yes. Court Officer: Would you say yes if I asked you that? Desiree: Yes. Court Officer: Do you promise to tell the truth, the whole truth and nothing but the truth? Desiree: Yes. Court Officer: Thank you. The judge and these gentlemen here will talk to you. Please keep your voice up. Court: Desiree, you will have to speak into that microphone. You will have to pretend that that red box in the back of that courtroom is where you are speaking to so everybody can hear you; all right? Desiree: Yes. Court: Because we need to hear what you have to say. Prosecutor: Desiree, hello. Desiree: Hello. Prosecutor: Do you know who I am? Desiree: Yes. Prosecutor: Who are you [sic]? Desiree: Mr. Fisher. Prosecutor: Desiree, would you tell the jurors how old you are. Desiree: Eight, I mean nine. Prosecutor: When did you turn nine? Desiree: September 14th. Prosecutor: Desiree, you said that you know the difference between telling the truth and telling a lie; is that right? Desiree: Yes. Prosecutor: What's the difference between telling a lie and telling the truth; can you tell us? Desiree: (no response). Prosecutor: Let me ask you another question: If I told you this suit was red, would that be the truth or would it be a lie? Desiree: A lie. Prosecutor: If I said we were in your living room right now, would that be the truth or a lie? *293 Desiree: A lie. Prosecutor: What grade are you in, Desiree? Desiree: Fourth. Prosecutor: How are you doing in school? Desiree: Good. Prosecutor: Some of us think C's are good. Tell us what good is. Desiree: I got all A's and one B on my report card. Prosecutor: That's actually very good. Did you get any awards or anything for doing that well? Desiree: I got distinguished. Prosecutor: You got distinguished? Desiree: Yes. Prosecutor: How many different kinds of awards could you get in school? Distinguished and what else? Desiree: Distinguished and meritorious and honorable mention. Prosecutor: So distinguished is the middle or highest? Desiree: Highest. Prosecutor: Then you're doing very, very, very good; right? Desiree: Yes. Prosecutor: And what school do you go to? Desiree: Ivy Leaf Middle School. Prosecutor: Ivy Leaf Middle School? Desiree: Yes. Prosecutor: How long have you gone there? Desiree: I just started going there. I used to go to Ivy Leaf Elementary School. Prosecutor: Now you graduated to middle school, right? Desiree: Yes. Prosecutor: Is that the same school your brother [Philip] goes to? Desiree: Yes. Prosecutor: Now, do you remember the last day that you saw your mom? Desiree: Yes. Notes of Testimony ("N.T."), 12/1/99, at 117-21. The prosecutor then proceeded immediately to question Desiree concerning what she did and what she saw on the day of her mother's murder. At no point before, during, or after voir dire did defense counsel object to the voir dire format or questioning, and the trial court made no comment as to the witness's competency. After the prosecutor's direct examination of Desiree, defense counsel extensively cross-examined her, beginning with a few general questions concerning the year her mother was shot, her grade in school at that time, and her school and after-school programs. N.T., 12/2/99, at 8-11. The next witness was the victim's twelve-year-old son, voir dire of whom consisted, in its entirety, of the following: Prosecutor: Philip, how old are you? Philip: I am 12. Prosecutor: What grade are you in? Philip: Seventh. Prosecutor: I am sorry? Philip: Seventh. Prosecutor: Seventh grade? Philip: Yes. Prosecutor: What school do you go to? Philip: Ivy Leaf. Prosecutor: How are you doing in school now? Philip: Good. Prosecutor: What does good mean? Philip: A's, B's and C's. Prosecutor: In that order? Philip: Excuse me? Prosecutor: In that order, A's, B's and C's? *294 Philip: Yes. Prosecutor: Are you related to Desiree Epps? Philip: Yes. Prosecutor: How are you related? Philip: I am her brother. Prosecutor: Were you related to Stephanie Coleman Epps? Philip: Yes. Prosecutor: How are you related to her? Philip: I am her son. Prosecutor: Did you know a person by the name of Mr. Steve? Philip: Yes. Prosecutor: How did you know him? Philip: He was my mom's boyfriend. Prosecutor: Do you see him in the room today? Philip: Yes. Prosecutor: Would you please point him out for us? Philip: Right there. Prosecutor: Indicating the defendant, your honor. Prosecutor: Do you recall or do you remember when you first met him? Philip: No, I don't remember. Prosecutor: When you last saw your mom, where were you living? Philip: I was living in the Bromley House Apartments. Prosecutor: With whom were you living, Philip? Philip: With my mom and my sister. Prosecutor: Did sometimes Mr. Steve stay there— Philip: Yes. Prosecutor: At your apartment with you? Philip: Yes. Prosecutor: Philip, do you know the difference between telling a lie and telling the truth? Philip: Yes. Prosecutor: Could you tell us what the difference is, please? Philip: Okay. The truth is like the right thing to do—Well, it is like the right thing to happen, and a lie is the opposite of the truth. Prosecutor: That is pretty good. That is stated pretty good. The truth is telling about the thing the way it happened and a lie is telling something else— Philip: Yes. Prosecutor: That didn't happen, okay. Philip, do you recall the last day that you saw your mom? Philip: It was in September. I think it was September 16, 1997. N.T., 12/2/99, at 52-54. The prosecutor then proceeded to ask Philip questions about his activities and his observations on the day of his mother's murder; following this examination, Philip was extensively cross-examined by defense counsel. At no point did the trial court comment on or even mention Philip's competency to be a witness. Appellant argues that trial counsel was ineffective for not objecting to the presence of the jury during the above voir dire of the children, and that appellate counsel was ineffective for failing to raise this issue of trial counsel ineffectiveness. Appellant relies on Washington, supra, wherein, as discussed above, this Court promulgated a per se rule that a competency hearing for child witnesses must be held in the absence of the jury. Although the trial court held no formal, separate competency hearing, it is obvious from the above-quoted voir dire that the children were questioned as to their understanding of the concept of truth versus a lie immediately prior to their testimony concerning the murder of their *295 mother. The jury heard all of the questions directed to the children and their answers. Accordingly, we acknowledge, as did the PCRA court, that there is arguable merit to Appellant's assertion that the trial court's voir dire procedure violated the per se rule promulgated in Washington. See PCRA Court Opinion, dated 10/25/06, at 4. However, following careful review of the entire record, we conclude that Appellant did not and cannot establish that he suffered prejudice because of defense counsel's failure to object, and thus Appellant cannot succeed in his ineffectiveness claim. It is important to recognize that the trial court never issued an express or formal ruling that the children were competent to testify. In fact, the trial court never made any mention of the children's competency. The children's answers to questions about the distinction between truth and a lie flowed seamlessly into their testimony regarding their mother's murder. Thus, contrary to Appellant's contention, the trial court did not endorse or vouch for the credibility of any part of the children's testimony. In addition, the trial court expressly and repeatedly instructed the jury that it was the sole fact-finder and sole judge of credibility. In its initial remarks to the jury, the trial court stated the following: While you are decide [sic] on the facts of this case, you will have to judge the credibility and the weight of the testimony on the other evidence. By credibility I mean, of course, its truthfulness and its accuracy. When you judge the credibility and weight of a witnesses' [sic] testimony, you are deciding whether you will believe all, part or none of the testimony of the witness and how important that testimony is to the trial. Use your understanding of human nature and your own common sense. Please observe each witness as he or she testifies. Be alert for anything in that witnesses] testimony or behavior or for any other evidence that might help you to judge the truthfulness, accuracy and weight of that person's testimony. * * * As I told you earlier, you are the sole judges of the facts and of the credibility and weight of the evidence. You must rely on your own recollection and evaluation of the evidence during your deliberations and not mine or counsel's. You are not bound by any opinion that counsel or I might express during the trial about guilt or innocence, credibility or weight of evidence, facts proven by the evidence or the inferences to be drawn by the facts. N.T., 12/1/99, at 93-94, 96. Similarly, in the charge to the jury just prior to the start of its deliberations, the court stated as follows: You will recall that I have told you that you are the sole determiners of the facts except where there are stipulations that have been reached by counsel. * * * Where there is a conflict in the testimony, you, the jury, have the duty of deciding which testimony to believe.... If you cannot reconcile the conflict in the testimony, it is up to you to decide which testimony, if any, to believe and which to reject as untrue or inaccurate. * * * As judges of the facts, you are the sole judges of the credibility of the witnesses and their testimony. This means that you must judge the truthfulness and the accuracy of each witnesses] testimony and decide whether to believe all or part or none of that testimony. And you should consider the following factors as *296 indicators as to whether or not testimony is believable: Was the witness able to see, hear and know the things about which he or she testified; how well could the witness remember and describe the things they [sic] testified about; was the ability of the witness to see, hear, know, remember or describe these things [a]ffected by youth or old age or by a physical, mental or intellectual deficiency; did the witness testify in a convincing manner; how did they look, act, speak; did a witness have any interest in the outcome of the case; bias, prejudice or other motive that might [a]ffect their [sic] testimony; how well did the testimony of a particular witness compare with the other evidence in the case, including the testimony of other witnesses. * * * While you are judging the credibility of each witness, you are likely to be judging the credibility of other witnesses or evidence. If there is a real irreconcilable conflict, it is up to you to decide which, if any, conflicting testimony or evidence to believe. N.T., Jury Charge, 12/8/99, at 113-17 (emphasis added). Thus, the court's instructions to the jury, both before testimony began and at the close of all testimony, were absolutely clear: the jury—and the jury alone—was responsible for evaluating and deciding upon credibility of the witnesses. The court explicitly instructed the jury to consider whether the ability of a witness to see, hear, know, remember, or describe things was affected by, inter alia, youth. The jury is presumed to follow the court's instructions. Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1224 (2006). Appellant has provided not the slightest evidence that the jury did not do so in this case. We recognize the importance of the children's testimony to the Commonwealth's case against Appellant. They were the only eyewitnesses to the murder, and the defense attempted to undermine the credibility of their testimony as inconsistent with Appellant's alibi. However, it must be noted that other evidence admitted at trial was consistent with the testimony of the children. Jennifer Pugh, the victim's sister, testified that Philip called her immediately after the murder, very anxious and excited, and said that "Steve" had shot his mother. N.T., 12/7/99, at 12.[10] Ms. Pugh then dialed 911 to report what her nephew had told her, and the 911 tape was played for the jury. N.T., 12/2/99, at 50-51; N.T., 12/3/99, at 122-24. Detective James Dougherty, who interviewed Desiree after the murder, testified that she named "Mr. Steve" as the man who shot her mother and identified Appellant from a photograph as "Mr. Steve." N.T., 12/3/99, at 151-53. Officer Etienne Starling, who brought Melvin Epps, the children's father and the victim's estranged husband, to the crime scene shortly after the murder, testified that the children ran to him and hugged him, and that Philip stated that "Mr. Steve" had shot his mother. Id. at 169, 172-73, 177-78. Furthermore, and very importantly, the children were unwavering in their testimony that Appellant shot their mother after she had entered their apartment building and was waiting for an elevator. The children knew Appellant as their mother's boyfriend who had stayed at their residence on some occasions, and they identified *297 him in court without hesitation. They also knew the type of car that Appellant drove. Their direct examination and cross-examination at trial were lengthy and detailed and revealed some minor inconsistencies. However, the essence of their testimony remained absolutely steadfast and unshakable—that Appellant, the man they knew as "Mr. Steve," shot their mother. The following few excerpts of testimony illustrate the essence, and the consistency, of the children's testimony. Defense Counsel: When your dad was with you with the police officers, there came a time when the police officers showed you a picture of Mr. Steve; is that correct? Desiree: Yes. Defense Counsel: They showed you one picture of Mr. Steve; right? Desiree: Yes. Defense Counsel: They didn't show you pictures of anybody else; right? Desiree: No. Defense Counsel: After they showed you the picture, your dad said that is Mr. Steve and you said that is Mr. Steve; right? Desiree: No. I just said it was him. Defense Counsel: You just said it was him? Desiree: Yes. N.T., 12/2/99, Cross-examination of Desiree, at 17-18. Prosecutor: Who shot your mom? Desiree: Mr. Steve. * * * Prosecutor: Who was the man who caught the door, walked in the apartment building and shot your mom? Defense Counsel: Objection; leading. Court: Overruled. Prosecutor: Who is the man? Desiree: Mr. Steve. Prosecutor: Have you seen him here today? Desiree: Yes. Prosecutor: Is this the guy? Desiree: Yes. Id., Re-direct examination of Desiree, at 34-35. Prosecutor: You talked to me before coming to court; right? Desiree: Yes. Prosecutor: You talked to your dad before coming to court, too; right? Desiree: Yes. Prosecutor: You talked to the police at sometime [sic]; right? The night that this happened, you talked to the police; is that correct? Desiree: Yes. Prosecutor: Now when you talked to the police the night that this happened, did you tell them the truth? Desiree: Yes. Prosecutor: You gave a statement to the police that night; right? Desiree: Yes. Prosecutor: You told the police that night in your statement that it was Mr. Steve who shot your mom, didn't you? Desiree: Yes. Prosecutor: Did anybody tell you to say that? Desiree: No. Prosecutor: Why did you say it? Desiree: Because it is the truth. Prosecutor: When you talked to me about this case, what did I tell you was the most important thing? Desiree: To tell the truth. Id. at 44-45. Defense Counsel: Do you remember anything that [the prosecutor] asked you from the time that you met [him]? Do *298 you remember anything that [he] said to you or asked you? Desiree: He said to always tell the truth. Defense Counsel: Anything else? Desiree: I don't remember. Id., Re-cross examination of Desiree, at 47-48. Prosecutor: Now you are in that door [to the apartment building] and where are you going? Philip: To the elevator. * * * Prosecutor: Where was Mr. Steve then? Philip: He was—he catch the door. Prosecutor: He what? Philip: He had caught the door, and then we had went into the apartment building. Then my mom had pressed the button. He shot her. * * * Prosecutor: What happened after he shot your mom, Philip? Philip: He had ran out the door. N.T., 12/2/99, Direct examination of Philip, at 59-60. Prosecutor: Incidentally, the Mr. Steve who shot your mom that night, is he in the courtroom today? Philip: Yes. Prosecutor: Where is he, Philip? Philip: Right there. * * * Court: Let the record indicate that Philip has identified [Appellant]. Id. at 66-67. Prosecutor: Each one of those times when you were talked to by the police officers, when they first arrived on the scene before you talked to anyone, you said [Appellant] shot your momma; right? Philip: Yes. Prosecutor: When you talked to your aunt, who did you tell shot your mom? Philip: Mr. Steve. Prosecutor: When you talked to the police down at the station an hour and a half after you saw your mom killed, who did you say shot your mom? Philip: Mr. Steve. Prosecutor: Then in April, 1998, when you went to that preliminary hearing, you told the people at the preliminary hearing, the judge and the lawyers— and, by the way, I wasn't the lawyer then for the Commonwealth, was I? Philip: No. Prosecutor: It was some lady; right? Philip: Yes. Prosecutor: You told them all through there [Appellant] shot your mom? Philip: Yes. Prosecutor: Then when all those lawyers asked all those questions to you in February of 1999, you told them at least ten times that [Appellant] shot your mom, didn't you? Philip: Yes. Prosecutor: Did you ever tell anybody that [Appellant] didn't shoot your mom? Philip: No. Prosecutor: Why? Philip: Because he did. Id., Re-direct examination of Philip, at 139-40. The above excerpts present only some examples of the extensive testimony of the children, consistent in its essence despite lengthy and aggressive cross-examination, and corroborated by other evidence admitted at trial. Based on our review of the entire record, we cannot conclude that there is a reasonable probability that the outcome of Appellant's trial would have been different but for trial counsel's failure *299 to object to the presence of the jury during the voir dire of the children, which consisted of brief questioning primarily regarding their schooling and their understanding of the distinction between truth and a lie. See Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008). Because Appellant has not established prejudice, his claim of trial counsel ineffectiveness fails, and accordingly his derivative claim of appellate counsel ineffectiveness has no merit. Appellant is entitled to no relief on his second issue.[11] 3. Admission of Evidence of Prior "Bad Acts" In Appellant's third issue, he alleges that trial counsel was ineffective for failing to object to the admission of evidence of several prior "bad acts," specifically, the following:[12] (a) testimony of the victim's sister that Appellant had assaulted the victim on a prior occasion and also had attempted to force himself on her sexually, N.T., 12/3/99, at 68, 118; (b) testimony of Officer Joseph Fischer that one of Appellant's former paramours had previously obtained a protection from abuse order against him, N.T., 12/6/99, at 198; (c) testimony of Officer Starling that Appellant had threatened to kill the victim's estranged husband, Melvin Epps, id. at 13-14, 21; (d) testimony from the victim's sister and from two of Appellant's paramours that Appellant had used various aliases, N.T., 12/3/99, at 129-31; N.T., 12/6/99, at 135, 177-80. The issues underlying the ineffectiveness claims of sub-issues (a) and (b) have been previously litigated. On direct appeal, Appellant contended that the trial court had erred by allowing the victim's sister to testify that the victim said Appellant had struck her, the same testimony that is challenged here in sub-issue (a). Trial counsel objected to this testimony at trial, and thus the issue was preserved for review. See N.T., 12/3/99, at 61, 67-68; *300 Appellant's Brief at 27-28 n. 13. Appellant raised the matter on direct appeal, but we declined to grant relief, holding that, even if the trial court had erred by admitting this testimony, any error was harmless given the "overwhelming evidence of Appellant's guilt" presented by the Commonwealth. Hutchinson, 811 A.2d at 560-61. Appellant does not provide any argument or legal support for his current assertion that direct appeal counsel raised the matter ineffectively, and accordingly this issue must fail. Also on direct appeal, Appellant contended that trial counsel was ineffective for failing to object to the testimony of the victim's sister that the victim had said Appellant had tried to force himself on her, and to the testimony of Officer Fischer that one of Appellant's paramours had obtained a protection from abuse order against Appellant. Id. at 561; see sub-issues (a) and (b). We held that counsel was not ineffective for failing to object to this testimony, concluding that "both comments about which Appellant now complains were merely fleeting references made by [the] witnesses during cross-examination by defense counsel." Hutchinson, supra at 562. As such, "an objection by defense counsel might have served only to highlight the otherwise passing comments in the minds of the jurors." Id. We concluded further that Appellant had failed to make any showing that he was prejudiced by the failure of defense counsel to object to the challenged testimony. Id. Thus, these sub-issues of trial counsel ineffectiveness have been previously litigated. Appellant's present general assertion that appellate counsel raised trial counsel's ineffectiveness as to these sub-issues "ineffectively," see Appellant's Brief at 36, is not developed in any meaningful way and thus is not reviewable. Appellant declines to state—much less develop—any specific aspects of appellate counsel's performance that he finds problematic. Mere failure to prevail on a claim on direct appeal does not establish that appellate counsel was ineffective. Appellant is entitled to no relief on these sub-issues.[13] With regard to Appellant's sub-issues (c) and (d), we first note that, of all the claims asserted by Appellant with regard to these sub-issues, the only one cognizable is ineffective assistance of appellate counsel grounded in trial counsel's failure to object to the allegedly inadmissible testimony. Furthermore, we are guided by the following well-established principles with regard to the admissibility of evidence of prior crimes or bad acts: While it is true that evidence of prior crimes and bad acts is generally inadmissible *301 if offered for the sole purpose of demonstrating the defendant's bad character or criminal propensity, the same evidence may be admissible where relevant for another purpose. Examples of other such relevant purposes include showing the defendant's motive in committing the crime on trial, the absence of mistake or accident, a common scheme or design, or to establish identity.... the evidence may also be admitted where the acts were part of a chain or sequence of events that formed the history of the case and were part of its natural development. Of course, in addition to the relevance requirement, any ruling on the admissibility of evidence is subject to the probative value/prejudicial effect balancing that attends all evidentiary rulings. Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008) (internal citations omitted); see also Pa.R.E. 404(b). In sub-issue (c), Appellant asserts that the Commonwealth improperly elicited hearsay testimony from Officer Starling concerning Appellant's threat to kill the children's father and victim's estranged husband, Mr. Epps. Appellant's Brief at 27, 29. Appellant cites the Commonwealth's direct examination of Officer Starling concerning his investigation of the murder, wherein the officer testified that, shortly after the murder, he and his partner were driving to the Germantown Avenue address to which Appellant's Lexus was registered. However, while en route to that address, they changed directions and instead drove to Mr. Epp's home "because another call came over the radio that the children's father lived up in Mount Airy and that his person may be in danger." N.T., 12/3/99, at 163-64. Officer Starling further testified that when he and his partner reached the street where Mr. Epps lived, they surveyed the area to determine if Appellant's Lexus was there. Id. at 166-67. There was no other testimony suggesting the possibility of danger to Mr. Epps during direct examination. However, during cross-examination, defense counsel repeatedly raised the matter in an attempt to suggest that the officers went to Mr. Epp's home, not because they feared he was in danger, but because he was a suspect in the murder of his estranged wife. Relevant portions of Officer Starling's testimony in response to questioning by defense counsel are as follows: Defense Counsel: You were going to that location [the address to which Appellant's Lexus was registered] to investigate; correct? Officer Starling: Yes. Defense Counsel: Then in the middle of going to that location, another flash information came over, okay, that the father of the children lived over at 8535 Williams Avenue; correct? Officer Starling: Yes. Defense Counsel: Now who made the decision, you, your brother officer or some other investigator, that changed you from going to Williams—I mean that changed you from going to the Germantown Avenue location to the Williams Street location? Why did you do that? Officer Starling: Because we were in fear of the father's safety. Defense Counsel: You were in fear of the father's safety? Officer Starling: Yes. Defense Counsel: What made you in fear of the father's safety at that point? What other information did you have? Officer Starling: While on location, there was talk of threats against the father's life. *302 Defense Counsel: ... where did you get that information about threats to the father's life? Officer Starling: I can't recall who told me that, but it was just amongst people talking on location. Defense Counsel: Were they police officers or were they civilian people? Officer Starling: It could have been both. Defense Counsel: Now it is correct to say that no portion of your statement references this additional information about threats to the father when you were there; correct? Officer Starling: Correct. * * * Defense Counsel: In any event, that was why it was on your own initiative, as a result of having that information, that you changed locations from going to Germantown Avenue to Williams Street; right? Officer Starling: Pretty much, yes. Defense Counsel: Well, what am I missing? What else is there? What else went into the determination? You determined it; right? Officer Starling: I wasn't driving, so it wasn't me, solely. Defense Counsel: You weren't going there because the father might have been a suspect, were you? Officer Starling: No. Defense Counsel: Not at all; correct? Officer Starling: I answered the question. Defense Counsel: And I asked you a question. Not at all was he a suspect, in your mind? Officer Starling: No. Defense Counsel: Did you know that [ ] the husband of the woman who was shot had been estranged from her? Officer Starling: No. Defense Counsel: Did you receive that information? Officer Starling: No. Defense Counsel: Did you know that there was a bitter custody battle going on; did you hear any of that? Officer Starling: No. Defense Counsel: Did you hear anything about an equitable distribution or property division fight going on? Officer Starling: No. Defense Counsel: Nothing like that? Officer Starling: No. Defense Counsel: But, in any event, it is your testimony here today under oath that you went there because of fear, some fear or threats made to the father, but you don't know where that came from other than civilian or police witnesses? Officer Starling: That's correct. * * * Defense Counsel: Then it [the officer's statement] says Melvin Epps said Steve, who is the boyfriend, has another car, a white 1990 300 ZX, with a spoiler in the back, PA BDS-3982, registered to a Jeanette McPherson of 6753 Germantown Avenue. Melvin Epps told you all that? Officer Starling: He told Officer Speller that. Defense Counsel: So he had all that information at hand; right? Correct? Officer Starling: I assume so. Defense Counsel: Well, you were there. It says in your statement [that] Melvin Epps said—and he had all that information about Mr. Hutchinson and gave that right there when he was all upset; right? Officer Starling: Yes. *303 Defense Counsel: Then, also, Mr. Epps also told us that Steve had threatened him in the past; right? Officer Starling: Yes. Defense Counsel: And that he was going to kill him, right? Officer Starling: Yes. N.T., 12/6/99, at 12-16, 21. With the line of questioning quoted above, defense counsel was clearly trying to support his theory of the case, which he had also set forth in his opening statement, as follows: What I believe the evidence will show is that there was arrested judgment here. That there was a failure to investigate fully. Because as [the prosecutor] said up front in this case, that there was a breakup between Stephanie Epps and Melvin Epps.... There was and it was an acrimonious split.... there was a dispute over property. There were allegations of abuse by Ms. Epps against Mr. Epps.... it's [Appellant's] belief that Mr. Epps is behind the death of Stephanie Epps. * * * I believe [Mr. Epps] will say in a statement that [Appellant] threatened him and that he knew he was no good. Well, really what was going on, it was really the other way. The other way was that it was [Appellant] and members of Stephanie [Epps's] family had gone to Melvin [Epps's] house to prevent some abuse in the early months prior to her death. And that it was [Appellant] who was there at times for Stephanie [Epps]. N.T., 12/1/99, Defense Counsel's Opening Statement, at 111, 113. As illustrated in the excerpts above, when considered in the appropriate context, Appellant's assertion that defense counsel was ineffective for failing to object to testimony regarding threats to Mr. Epps is revealed to have absolutely no merit. The Commonwealth's examination of Officer Starling concerning the investigative actions that police officers took shortly after responding to the scene of the murder elicited only very brief and general testimony regarding possible danger to Mr. Epps. Defense counsel—not the Commonwealth—elicited the acknowledgement from Officer Starling that Mr. Epps told police of Appellant's threats to kill Mr. Epps. See quoted notes of testimony from 12/6/99, supra. During cross-examination of Officer Starling, defense counsel tried repeatedly to suggest that police officers went to Mr. Epps's home immediately after the murder because he was a suspect. This line of questioning was entirely consistent with the narrative that defense counsel was attempting to develop at trial, i.e., that Appellant had intervened to protect the victim from Mr. Epps, her abusive, estranged husband, who ultimately was responsible for her murder. By suggesting now that counsel was ineffective for failing to object to Officer Starling's testimony, Appellant implicitly calls into question trial counsel's overarching strategy and theory of the case.[14] We will not conclude that counsel was ineffective merely because the jury did not find his narrative convincing or his strategy *304 credible. Because trial counsel was not ineffective for failing to object to the testimony that he had elicited concerning Appellant's threats to Mr. Epps, Appellant's derivative claim of appellate counsel ineffectiveness for failing to raise the claim of trial counsel ineffectiveness must also fail. In sub-issue (d), Appellant asserts that trial counsel was ineffective for failing to object to the Commonwealth's introduction of evidence that Appellant used several aliases, i.e., Steven Marshall, Steven Boswell, and Fabian Hutchinson. Appellant's Brief at 27, 29-30. Appellant further argues that the evidence of Appellant's aliases "served no relevant purpose and was introduced solely to establish Appellant's bad character." Id. at 30. Contrary to Appellant's assertions, the evidence of Appellant's aliases served not just one but two highly relevant purposes at trial. First, the Commonwealth presented evidence that the victim had sought a protection from abuse order against "Steven Marshall" shortly before her murder, and Appellant's aliases were introduced to establish that the victim knew Appellant by this name. See N.T., 12/3/99, at 127-29. Specifically, all three aliases were written in the victim's appointment book, which the Commonwealth introduced into evidence, and the victim's sister testified that when the victim first met Appellant, she said his name was "Steven Boswell." Id. at 130-31. Second, evidence of Appellant's aliases was relevant to the Commonwealth's theory that Appellant had fled from Pennsylvania shortly after the murder. Shannon Husbands, another one of Appellant's paramours, testified that, on September 16, 1997, the day of the murder, she purchased a cell phone contract with Appellant, who used the name Steven Marshall for the transaction. N.T., 12/6/99, at 134-36, 147-48. Ms. Husbands, who knew Appellant by the names of Steven Boswick and Steven Marshall, as well as Steven Hutchinson, further testified that Appellant remained in possession of the newly purchased cell phone, despite her attempts to retrieve it from him. Id. at 135-38, 141, 149, 151-53. The Commonwealth then offered into evidence cell phone bills, which revealed that calls had been made on the cell phone from the Philadelphia area on September 16, 1997; then from the Richmond, Virginia, area on September 17 through 18, 1997; and then from the Miami, Florida, area, with the last call having been made on September 23, 1997. Id. at 158-63. Another of Appellant's paramours, Octavia Tucker, testified that she allowed police to put a trap and trace on her telephone, and that she had received phone calls from Appellant at times and from places that were consistent with the cell phone records discussed above. Id. at 173-76; see also id. at 185-86. Ms. Tucker further testified that she knew Appellant by the names Steven Marshall and Fabian Hutchinson, as well as Steven Hutchinson. Id. at 176-77. The testimony of Ms. Husbands and Ms. Tucker was highly relevant because it supported the Commonwealth's theory that Appellant fled from the Philadelphia area shortly after the murder. Officer Joseph Fischer, a Philadelphia police officer, testified that he had been assigned to locate Appellant, under the names Steven Hutchinson or Fabian Hutchinson. Id. at 182-83: Officer Fischer further testified that, on January 1, 1998, more than three months after the murder, Appellant was apprehended in Las Vegas, Nevada. Id. at 183-84. Finally, the officer testified that Appellant gave his name as Steven Fabian Hutchinson for purposes of the biographical information report prepared by the police following *305 Appellant's apprehension and transfer back to Philadelphia. Id. at 212-13. Based on our review of the record, as summarized above, we conclude that there is no merit to Appellant's contention that his trial counsel was ineffective for failing to object to evidence of Appellant's aliases. Preliminarily, we note that Appellant's mere usage of alternative names with his various paramours does not implicate him in criminal conduct. Nor does Appellant's intermittent usage of his middle name constitute a bad act.[15] Most importantly, and contrary to Appellant's assertions, his usage of aliases was highly relevant to the trial proceedings for two reasons. First, the victim had used one of Appellant's aliases in seeking a protection from abuse order shortly before her murder. Second, Appellant's usage of an alias tied him to the purchase of a cell phone, the records of which suggested his flight from Philadelphia to Florida shortly after the murder. Appellant fails to suggest any reasonable grounds on which defense counsel could have or should have objected to the introduction of evidence of Appellant's aliases. We conclude that there is no arguable merit to Appellant's assertions of error with regard to Appellant's aliases, and thus trial counsel was not ineffective for failing to object. Because trial counsel was not ineffective, Appellant's derivative claim of appellate counsel ineffectiveness for failing to raise the claim of trial counsel ineffectiveness must also fail. Finally, Appellant contends that, even if the evidence of bad acts challenged in this issue was admitted for a discrete and limited purpose, trial counsel was ineffective for not requesting a limiting instruction to the jury as to its permissible use. This Court has held that when evidence of a defendant's prior criminal conduct or bad acts is admitted, the defendant is entitled upon request to a jury instruction explaining the limited purpose of such evidence. Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 37 (2008) (citing Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841-42 (1989)). In Billa, we granted the appellant a new trial after concluding that his counsel was ineffective for failing to request a limiting instruction. The appellant had been found guilty of the first-degree murder of a sixteen-year-old girl with whom he had been attempting to establish a relationship. Billa, supra at 837. The trial court had admitted, over defense counsel's vigorous objection, testimony concerning a violent sexual assault on a different victim that had been committed by the appellant approximately two months before the murder. Id. at 838-39. The two attacks bore numerous similarities, including the fact that both victims were young Hispanic females. Id. at 841. Although we noted that the testimony of the sexual assault victim was vivid, graphic, highly prejudicial, and potentially emotional, we held that it was properly admitted because of its relevance to proving the appellant's motive and intent and the absence of accident. Id. Nonetheless, we also held that trial counsel was ineffective for failing to request an appropriate limiting instruction. Id. at 842. We recognized that the highly inflammatory testimony of the prior sexual assault victim "created the substantial danger that the jury could be swayed in its deliberations ... by this evidence showing [the] appellant's criminal character and his propensity to sexually assault young Hispanic females." Id. at 841. In addition, we recognized that the evidence in question *306 was not merely a fleeting or vague reference to the appellant's criminal record, but rather was extensive as well as inflammatory, comprising a substantial component of the Commonwealth's case and garnering an emphasis in closing argument. Id. at 843. Accordingly, "[a]n appropriate limiting instruction ... would not have increased the jury's awareness of the prior sexual assault, but it well might have placed its limited legal significance in proper perspective." Id. at 843. We concluded that the Billa appellant's counsel was constitutionally ineffective for failing to request an appropriate limiting instruction as to the permissible use of evidence of the prior sexual assault, and we therefore awarded the appellant a new trial. Id. at 843. In the instant case, the relevant circumstances have little, if anything, in common with those of Billa, and we decline to hold that trial counsel was ineffective for failing to request a limiting instruction. The bad acts evidence of which Appellant complains was not inflammatory, not graphic, and not extensive. Some of the evidence was elicited as a single sentence in passing during cross-examination of the witnesses by defense counsel. In closing argument, the Commonwealth did make reference to Appellant's abuse of the victim, but did not mention the other bad acts. See N.T., Commonwealth Closing Argument, 12/8/99, at 107. Under these circumstances, an instruction as to the bad acts evidence may very well have served only to re-emphasize the evidence to the jury. More importantly, Appellant has not established prejudice, i.e., he has failed to demonstrate that there is a reasonable probability that the outcome of his trial would have been different but for the lack of a limiting instruction. We have previously noted the "overwhelming evidence" of Appellant's guilt. Hutchinson, 811 A.2d at 562. In light of this overwhelming evidence, which includes eyewitness testimony of the victim's two children, both of whom knew Appellant, Appellant has failed to suggest how he could have been prejudiced by counsel's failure to request a limiting instruction such that there is a reasonable probability that the outcome of his trial would have been different. There is no merit to Appellant's claim of trial counsel ineffectiveness with regard to a limiting instruction, and therefore, the derivative claim of appellate counsel ineffectiveness also fails. 4. Prosecutorial Misconduct Appellant's fourth issue is another claim of ineffective assistance of trial and appellate counsel, based this time on underlying claims of prosecutorial misconduct. In part A of this issue, Appellant focuses on the prosecutor's closing argument, which Appellant contends was inflammatory. In part B, Appellant focuses on evidence that was allegedly withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We consider parts A and B in turn, mindful that the only allegation within either part cognizable under the PCRA is ineffective assistance of appellate counsel for not raising a claim of trial counsel ineffectiveness grounded in failure to object to the prosecutor's alleged misconduct. We consider here the underlying claims of prosecutorial misconduct to determine if they satisfy the arguable merit prong of the Pierce test for ineffective assistance of trial counsel. In accord with the long-standing principle that a "prosecutor must be free to present his or her arguments with logical force and vigor," this Court has permitted vigorous prosecutorial advocacy "as long as there is a reasonable basis in the record for the [prosecutor's] comments." Commonwealth v. Robinson, 581 *307 Pa. 154, 864 A.2d 460, 516-17 (2004). Prosecutorial comments based on the evidence or reasonable inferences therefrom are not objectionable, nor are comments that merely constitute oratorical flair. Tedford, supra at 33. Furthermore, the prosecution must be permitted to respond to defense counsel's arguments. Id. Any challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered. Robinson, supra at 517. It is improper for a prosecutor to offer his or her personal opinion as to the guilt of the accused or the credibility of any testimony. Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 112 (2004). However, it is well within the bounds of proper advocacy for the prosecutor to summarize the facts of the case and then to ask the jury to find the accused guilty based on those facts. See id. The standard by which the court considers allegations of improper prosecutorial comments is a stringent one: Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict. Tedford, supra at 33 (citation omitted). In his first claim of prosecutorial misconduct during closing argument, Appellant asserts that the prosecutor sought to shift the burden of proof to Appellant, commented on Appellant's failure to testify, and suggested to the jury that Appellant had the burden to present corroborating evidence. Appellant's Brief at 40-41. Appellant's allegations are frivolous. Placed in proper context, the excerpt of the prosecutor's closing argument that Appellant challenges is the following: Let's talk about credibility, and the judge is going to tell you that every case turns on credibility.... Credibility is just another way of saying believability.... Well, how do you determine whether or not you believe somebody just by looking at them? I mean, gee whiz, if you looked at Maureen Edwards [Appellant's alibi witness], and you had no other evidence in this case, you would say, gee, what a nice lady from maybe Toronto. Gee, I've got no other evidence in this case. She is believable. You've got no other evidence. Now wipe your mind of everything. She is believable. So one test is what? How the person looks, their demeanor, how they look. But do you stop there, because if you believe a person by just how they looked, and sometimes how they behaved, you would be where? Maybe where [the victim] is. No. You look at other things. You look to see whether or not their testimony is corroborated, whether or not there is some other piece of evidence that says that, that corroborates their testimony, and I can't go back to this too many times; the children say this guy shot their mom and he left in this doggone car. Well, who corroborates that? Eugene Green. [ ] What's he got to lie about? Did Mel[vin] Epps make him make that up? Did I make him make it up because he told the police that night first thing. So it is corroborated? Is it consistent? Is it consistent internally, the statement that is given or the testimony, and is it consistent externally. Do they say the same thing later on? Have these kids said anything but one thing? This guy shot my mom. No. But we were talking about Ms. Maureen Edwards. So you look at the other things. Who else would know what kind of car [Appellant] drove other than Octavia Tucker[?]. He lived with her. Edwards says what, he *308 drove a Ford.... I said is it a Taurus? She said no, Explorer.... What do people testify to, at least Octavia Tucker, who had seen him up to recently[?] Never had one. Had a Taurus back in '96. The only two cars [Appellant] drove are the two cars that we showed you. So credibility is just more than how the person looks. It is the stuff surrounding them. N.T., 12/8/99, Prosecutor's Closing Argument, at 97-100 (emphasis added to the only portion of this paragraph that Appellant quotes in his brief; see Appellant's Brief at 41). Contrary to Appellant's assertions, nothing in the prosecutor's comments remotely implied that Appellant bore the burden of proving his innocence or was required to present evidence corroborating his alibi witness. The prosecutor emphasized to the jury—correctly—that the testimony in this case was incontrovertibly and irreconcilably inconsistent. The victim's children testified that Appellant shot their mother, but Ms. Edwards testified that, at the time of the murder, Appellant was with her in another state. These stories were diametrically opposed, and the verdict depended on whom the jurors viewed as more credible. The prosecutor simply argued to the jury that other evidence presented in the case was relevant to this credibility determination, and he urged the jurors to consider all the evidence during their deliberations. Appellant's assertion that the prosecutor's arguments amounted to "a direct comment on Appellant's failure to testify," Appellant's Brief at 41, finds no basis in the prosecutor's actual words. The prosecutor's comments were not improper. In Appellant's second and third claims of prosecutorial misconduct, he focuses on the following excerpt, close to the end of closing argument, in which the prosecutor developed the Commonwealth's theory of the case that Appellant's motive for murdering the victim was his inability to control her. This is about control. Stephanie Epps... wanted to take control of her life. Who controls things, though? Who controls things? Who controls it? ... How many people came in here and testified? Who controls it? Did Stephanie control it? She didn't control her life. Who controlled people's lives? Who had them buying cars to go with other women? Who lived with other women? Who controlled those women? Who brings the women in here to lie? Who has that control? Who wanted to break that control? This is about Stephanie Epps wanting to free herself from psychological and physical abuse ... and she did get away from her husband. Maybe he did have an affair; that was the psychological abuse. She is away from him for a couple months and she hooks up with this guy, who kicks the crap out of her. How do we know that? How is that corroborated? Old bruises, new bruises, within 24 hours of her death. What does [the victim's sister] tell us? She called her sister on that Tuesday, [who] said [ ] do you believe he wanted to try to have sex with me last night? This was on Tuesday, the day she was killed, the day she writes ["]take control["]. It was no accident. I suggest to you this isn't even out of anger. This is out of wanting to dominate a woman.... But this is about total control. You don't do what I say, I am not going to beat you anymore, you are dead. N.T., 12/8/99, Prosecutor's Closing Argument, at 106-08 (emphasis added to portions emphasized by Appellant; see Appellant's Brief at 40 and 42). Appellant asserts that in the above-quoted excerpt the prosecutor expressed *309 his opinion that Appellant had pressured his alibi witness to lie for him. We disagree. Using a series of rhetorical questions based on the evidence presented, the prosecutor raised a logical and reasonable inference that Appellant had succeeded in his efforts to control the lives of his other paramours, including his alibi witness. There was no impropriety in the prosecutor's strategy or comments. See Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811, 829 (1994) (declining to conclude that the prosecutor engaged in misconduct when he commented that the appellant's alibi defense had been fabricated because the comment was a fair inference based on evidence presented at trial and summarized by the prosecutor). Finally, Appellant insists that this argument "was nothing more than a blatant attempt to inflame the jury and to ask the jury to draw the impermissible inference that Appellant had a propensity to kill.... because Appellant had beaten the decedent in the past, the jury should infer he killed her." Appellant's Brief at 40. Again, we disagree. The prosecutor briefly summarized the evidence regarding Appellant's controlling and abusive relationship with the victim, and her desire to regain control of her life. From this evidence, the prosecutor drew a logical and reasonable inference as to Appellant's motive in killing the victim. The prosecutor did not suggest to the jury any groundless or improper inferences from the evidence, and Appellant's assertions to the contrary have no merit. Because none of Appellant's assertions of prosecutorial misconduct during closing argument have the slightest merit, Appellant cannot satisfy the arguable merit prong of the Pierce test for ineffective assistance of trial counsel grounded in failure to object to the prosecutor's comments. Because trial counsel was not ineffective, Appellant's derivative claims of appellate counsel ineffectiveness also must fail. In part B of issue four, Appellant contends that the prosecutor engaged in misconduct when he failed to provide certain evidence to the defense in violation of Brady v. Maryland, supra. The evidence in question is the following: (a) statements from the victim's sister and brother-in-law; (b) a police radio tape of 911 calls placed shortly after the murder; and (c) handwritten notes from a detective at the crime scene and the second page of a crime scene log. See Appellant's Brief at 46. With regard to (a), statements from the victim's sister and brother-in-law, we must point out that neither Appellant nor the record provides any indication that such statements ever existed. The day before the beginning of jury selection, the prosecutor advised defense counsel that he might call the victim's sister and brother-in-law as witnesses. N.T., 11/23/99, at 61. The prosecutor explicitly stated that there were no statements from these witnesses. Id. at 61-62. Defense counsel then sought the prosecutor's notes from his discussions with the witnesses, but the court denied this request, holding that the notes were attorney work product and hence not discoverable. Id. at 62. Appellant does not challenge the veracity of this record, nor does he challenge the trial court's work product ruling, but he nonetheless alleges that the prosecutor acted in violation of Brady by failing to turn over statements that apparently did not exist. See Appellant's Brief at 46. We need not address this claim any further. Turning to sub-issues (b) and (c), trial counsel strenuously objected to the prosecutor's allegedly late proffer of the radio tape, the detective's notes, and the second page of the crime scene log. N.T., 12/2/99, at 36-39; N.T., 12/8/99, at 3-8. However, *310 none of these alleged Brady violations was raised on direct appeal. Within these sub-issues, the only claim cognizable under the PCRA is ineffective assistance of appellate counsel for failing to raise a Brady claim with regard to the above evidence on direct appeal. Accordingly, we consider these sub-issues pursuant to the Pierce test for ineffective assistance, first determining if there is any arguable merit to Appellant's underlying claim of Brady violations. Under Brady and the decisional law it has spawned, a prosecutor has an obligation to disclose all exculpatory information material to the guilt or punishment of an accused, including evidence of an impeachment nature. See, e.g., Commonwealth v. Lesko, 15 A.3d 345, 370-71 (Pa. 2011). Thus, to establish a Brady violation, an accused must prove three elements: [1] the evidence [at issue] was favorable to the accused, either because it is exculpatory or because it impeaches; [2] the evidence was suppressed by the prosecution, either willfully or inadvertently; and [3] prejudice ensued. Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848, 854 (2005) (citation omitted). The evidence allegedly withheld must have been "material evidence that deprived the defendant of a fair trial." Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 573 (2002). Favorable evidence is material, and constitutional error results from its suppression by the government "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Commonwealth v. Weiss, 604 Pa. 573, 986 A.2d 808, 815 (2009) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). This Court in Weiss discussed further how the materiality standard in essence defines the prejudice element of a Brady violation, as follows: In determining whether a reasonable probability of a different outcome has been demonstrated, "the question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A "reasonable probability" of a different result is shown when the government's suppression of evidence "undermines confidence in the outcome of the trial." Bagley, supra at 678, 105 S.Ct. 3375. The United States Supreme Court has made clear that Bagley's materiality standard is not a sufficiency of the evidence test. Kyles, supra at 434, 115 S.Ct. 1555. A Brady violation is established "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, supra at 435, 115 S.Ct. 1555. Importantly, "the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1019 (2003) (emphasis added). Weiss, supra at 815. Finally, the burden rests with an appellant to "prove, by reference to the record, that evidence was withheld or suppressed by the prosecution." Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999). In the instant case, as outlined above, Appellant contends that the prosecutor withheld a police radio tape of 911 *311 calls placed shortly after the murder, as well as a detective's notes from the crime scene and the second page of a crime scene log. See Appellant's Brief at 46. The 911 calls were made by the victim's daughter after she saw her mother murdered and by the victim's sister after the children called her to tell her of the murder. Appellant fails to provide argument as to how the 911 tape satisfies the elements of a Brady violation. Specifically, Appellant fails to discuss how the 911 tape would have been favorable to him, either as exculpatory or impeachment evidence; in fact Appellant acknowledges that the 911 tape "bolster[s] the testimony of the juvenile eyewitnesses." Id. at 46-47. Furthermore, Appellant fails to suggest how he was prejudiced by his failure to receive the 911 tape in discovery. There is no arguable merit to Appellant's assertion of a Brady violation with regard to the 911 tape, and hence appellate counsel was not ineffective for failing to raise this issue on direct appeal. Appellant's next Brady allegations concern the handwritten notes from a detective at the crime scene and the second page of a crime scene log. The documents in question were provided to defense counsel after the Commonwealth rested. See N.T., 12/8/99, at 3. Appellant contends that the detective's notes "identified two previously undisclosed witnesses to the shooting." Appellant's Brief at 46. However, this contention is not borne out by the record. The notes of testimony reveal that the "witnesses" identified in the detective's notes saw the victim's body when the elevator in which they were riding opened onto the floor where the shooting had just occurred; contrary to Appellant's assertion, there is no indication that they actually witnessed the shooting. See N.T., 12/8/99, at 5.[16] With regard to the second page of the crime scene log, Appellant points out that it "indicated that five shell casings had been recovered at the scene, not four as the Commonwealth's evidence had indicated." Appellant's Brief at 46. For none of this evidence does Appellant make any argument as to how or why it was favorable to him, how it could have been exculpatory, or how it could have been used to impeach any witness. Furthermore, Appellant makes no argument that the evidence was material and that he was prejudiced.[17] Following close review of the record, we conclude that there is no arguable merit to Appellant's assertion of a Brady violation with regard to any of this evidence, and hence appellate counsel was not ineffective for failing to raise the matters on direct appeal. Because none of Appellant's underlying claims of prosecutorial misconduct has any merit, Appellant's fourth issue does not entitle him to any relief. 5. Alternative Defenses of Diminished Capacity and Heat of Passion In Appellant's fifth issue, he alleges that trial counsel was ineffective for failing to *312 investigate or to present several alternative defenses, specifically the defense of diminished capacity, due to mental defect or voluntary intoxication, and the defense of heat of passion; in addition, appellant alleges that appellate counsel was ineffective for failing to raise this claim of trial counsel ineffectiveness on direct appeal. The only claim in this issue cognizable under the PCRA is the derivative claim of appellate counsel ineffectiveness. Appellate counsel will not be held ineffective if trial counsel was not ineffective, and hence we begin by considering whether Appellant's allegations as to trial counsel ineffectiveness have any merit. A defense of diminished capacity, whether grounded in mental defect or voluntary intoxication, is an extremely limited defense available only to those defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill. Commonwealth v. C. Williams, 602 Pa. 360, 980 A.2d 510, 527 (2009); Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1131 (2008); Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1218 (2006) ("Absent an admission from [the defendant] that he had shot and killed [the victim], trial counsel could not have presented a diminished capacity defense.")[18] If a defendant does not admit that he killed the victim, but rather advances an innocence defense, then evidence on diminished capacity is inadmissible. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 632 (2010). A diminished capacity defense "does not exculpate the defendant from criminal liability entirely, but instead negates the element of specific intent." C. Williams, supra at 527 (citing Gibson, supra at 1131). For a defendant who proves a diminished capacity defense, first-degree murder is mitigated to third-degree murder. Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 299 (2005). To establish a diminished capacity defense, a defendant must prove that his cognitive abilities of deliberation and premeditation were so compromised, by mental defect or voluntary intoxication, that he was unable to formulate the specific intent to kill. Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 237 (2007); Spotz, supra at 1218. The mere fact of intoxication does not give rise to a diminished capacity defense. Spotz, supra; Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 653 (2008) (requiring that a defendant show that he was "overwhelmed to the point of losing his faculties and sensibilities" to prove a voluntary intoxication defense). Evidence that the defendant lacked the ability to control his or her actions or acted impulsively is irrelevant to specific intent to kill, and thus is not admissible to support a diminished capacity defense. Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170, 1183 (2009). Furthermore, diagnosis with a personality disorder does not suffice to establish diminished capacity. Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 946 (2001). In numerous prior cases before this Court, defendants who had maintained their innocence during trial have subsequently raised post-conviction claims of ineffective assistance of trial counsel for failure to present and/or to investigate a defense of diminished capacity. We have consistently declined to hold that trial counsel was ineffective for failing to advance a defense that directly and irreconcilably *313 conflicted with the accused's claims of innocence. Rainey, supra at 237 (declining to conclude that defense counsel was ineffective for failing to present a diminished capacity defense when the appellant was unwilling to admit that the shot the victim); Spotz, supra at 1217-19 (declining to conclude that trial counsel was ineffective for failing to present a diminished capacity defense based on mental defect or voluntary intoxication because it would have required the appellant to concede liability, which was inconsistent with his averments of innocence and his recapitulation of events to trial counsel); Commonwealth v. R. Williams, 577 Pa. 473, 846 A.2d 105, 112 (2004) ("[E]ven if counsel had thoroughly investigated [the appellant's] past, the presentation of a diminished capacity defense would have directly contradicted [the appellant's] assertions that someone else had committed the crime, and thus would not have been an available defense."). We have recently stated that "whether addressing a claim of counsel's failure to investigate or failure to present [a diminished capacity defense], this Court has employed the same analysis." Gibson, supra at 1132. Finally, we have held that the authority to concede criminal liability and to authorize the presentation of a diminished capacity defense rests solely with the accused. Commonwealth v. Weaver, 500 Pa. 439, 457 A.2d 505, 506-07 (1983) (holding that even if diminished capacity was the only viable defense, trial counsel would be deemed ineffective for presenting this defense without the consent of the defendant). In the instant case, Appellant did not concede any liability in the killing of the victim. Rather, Appellant relied on an innocence defense, presenting an alibi witness, attempting to undermine the credibility of the child witnesses, and attempting to inculpate the victim's husband in her murder. Under these circumstances, where Appellant did not admit killing the victim, but rather maintained his innocence, a diminished capacity defense was not available to him, pursuant to this Court's decisional law discussed supra, and trial counsel will not be held ineffective for failing to present an unavailable defense. Nonetheless, Appellant further asserts that counsel was ineffective for failing to investigate diminished capacity defenses. To support this claim, Appellant has submitted an "Affidavit/Declaration" of his trial counsel, in which counsel asserts the following: [Appellant] advised me he was not present at the time of the murder and provided me with the name of an alibi witness. Based on these representations I did not investigate a diminished capacity, voluntary intoxication or heat of passion defense. Affidavit/Declaration of Stephen P. Patrizio, Esq., pursuant to 28 U.S.C. § 1746, and 18 Pa.C.S. § 4904, at ¶ 7.[19] *314 Trial counsel prepared and presented the defense that Appellant sought based on his claim of non-involvement in the murder, his account of his whereabouts at the time of the murder, his naming of the alibi witness, and the testimony of the alibi witness. Appellant has offered absolutely no rationale as to why his counsel should not have accepted his claims of innocence and proffered the alibi witness, except to aver that the alibi case was "weak." Appellant's Brief at 72. As we have made expressly clear, the authority to concede liability, which is an absolute prerequisite for a diminished capacity defense, rests solely and strictly with the accused. Weaver, supra at 506. Importantly, even at this stage in the proceedings, Appellant has not conceded any liability for the victim's murder. Appellant cannot succeed in his claim of trial counsel ineffectiveness for failing to investigate and pursue a diminished capacity defense when Appellant has not acknowledged an absolute prerequisite for that defense, i.e., that he killed the victim. Regardless of trial counsel's investigative efforts, counsel had no authority to present a diminished capacity defense in the face of Appellant's assertions that he was completely innocent of the murder, assertions that remain unabated even now. See R. Williams, supra at 112. Therefore, we conclude that Appellant has failed to establish that trial counsel was ineffective for failing to present or to investigate a diminished capacity defense. Because trial counsel was not ineffective, Appellant's derivative claims of appellate counsel ineffectiveness must also fail.[20] We turn next to Appellant's other claim in issue five, i.e., that counsel was ineffective for failing to raise a heat of passion defense. A heat of passion defense, like the diminished capacity defense, is a partial defense, focused on the element of intent. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1061 (2001); Commonwealth v. Legg, 551 Pa. 437, 711 A.2d 430, 432 n. 3 (1998). A defendant accused of murder may establish that he or she is guilty, not of murder, but rather of voluntary manslaughter, by proving that, at the time of the killing, he or she was acting under a sudden and intense passion resulting from serious provocation by the victim. Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638, 649 (2009); Commonwealth v. Ragan, 560 Pa. 106, 743 A.2d 390, 396 (1999) (citing 18 Pa.C.S. 2503(a)); Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286, 288 & n. 4 (1972). Emotions encompassed by the term "passion" include "anger, rage, sudden resentment or terror which renders the mind incapable of reason." Miller, supra at 650. Whether the provocation by the victim was sufficient to support a heat of passion defense is determined by an objective test: whether a reasonable man who was confronted *315 with the provoking events would become "impassioned to the extent that his mind was incapable of cool reflection." Id. (quoting Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248, 252 (1981)). "To reduce an intentional blow, stroke, or wounding resulting in death to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion without time to cool, placing the [defendant] beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting—if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder." Id. at 651 (quoting Commonwealth v. Barnosky, 436 Pa. 59, 258 A.2d 512, 515 (1969)). Appellant suggests no evidence that, at the time of the murder, he had been so provoked by the victim as to be compelled by passion beyond the control of his reason. The evidence cited by Appellant, i.e., that Appellant and the victim had been arguing shortly before the murder, that there were serious problems in their relationship, that Appellant was jealous, and that Appellant's prior or concurrent paramours had sought restraining orders against him, does not show that, at the time of the murder, Appellant was uncontrollably compelled by passion or that the victim had provoked him into such passion. Furthermore, Appellant provides no evidence or argument that trial counsel's strategy was unreasonable, except to aver that his alibi defense was "weak." Appellant's Brief at 72. We cannot conclude that trial counsel was ineffective in seeking Appellant's acquittal with an alibi defense, based on the testimony of an alibi witness named by Appellant, as opposed to advancing a heat of passion partial defense strategy, for which there was no evidence. Because trial counsel was not ineffective, any derivative claim of appellate counsel ineffectiveness must likewise fail. Appellant's fifth issue does not entitle him to any relief. 6. Time Limitation on Closing Argument In Appellant's sixth issue, he contends that the trial court improperly limited the time for trial counsel's closing argument, and that trial counsel and appellate counsel were ineffective for failing, respectively, to object and to raise this claim. Appellant's Brief at 62. Appellant alleges that the "trial court limited the guilt phase closing arguments to 20 to 30 minutes per side," a limitation that Appellant contends was "completely unreasonable and violated [his] rights to due process and a fair trial." Id. We must first note that the only claim cognizable under the PCRA in this issue is appellate counsel ineffectiveness for failing to raise on direct appeal a claim of trial counsel ineffectiveness for failing to object to the trial judge's limitation on closing argument. Because Appellant's derivative claim of appellate counsel ineffectiveness cannot succeed if trial counsel was not ineffective, we begin by considering Appellant's allegations against trial counsel. In Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178, 1185 (1996), this Court considered the issue of time limitation on closing argument and summarized the prevailing law on the matter as follows: A defendant has a right to summation. The length of closing arguments is left to the discretion of the trial court. Unless there is such an unreasonable limitation of time that [it] effectively denies a defendant the right to summation[,] a criminal conviction should not be disturbed. *316 Id. (quotation marks and citations omitted). The trial judge in Brown had interrupted defense counsel's closing argument to announce at a side-bar conference that the court was limiting argument to forty-five minutes per side, and accordingly defense counsel only had fifteen minutes remaining for her closing argument. On direct appeal, the Brown appellant challenged the trial court's action, arguing that the time limitation prevented his counsel from presenting an argument that would enable the jury to concentrate on the issues. Id. Although we disapproved of the trial court's imposition of time limits after the closing arguments had begun, we declined to grant the appellant relief because our "review of defense counsel's argument indicate[d] that ample time was allowed to summarize the issues before the jury." Id. Turning to the instant case, we note first that the trial judge here made clear to counsel before the start of testimony that she generally limited the time for closing arguments to thirty minutes. See N.T., 11/30/99, at 201. Furthermore, it is abundantly clear from the court's words that this was not an absolute rule, that it would not cut off an attorney who had something important to say, and that her general limitation was based on her experience as to a jury's attention span. Specifically, the trial judge's comment concerning closing argument, made to the prosecutor and defense counsel the day before testimony commenced, was the following: Closings, I generally limit to about a half hour. So just think about that now in terms of your closings. I mean I have never stopped someone who had something important to say, but I tell you to hone in on what's important because the jury doesn't have an attention span that is longer than 15, 20 minutes. So I tell you now with the proviso if there is something you have to deal with, I very rarely have ever cut off an attorney, okay. Id. During defense counsel's closing argument, after counsel had spoken for thirty minutes, the court did interrupt him as follows: Court: [Counsel], are you going to be wrapping up shortly? Defense Counsel: That is a half hour already? Court: Yes. Defense Counsel: I will try to do it, your honor. N.T., 12/8/99, at 88. Defense counsel continued his argument for a short time and then ended.[21] Based on these excerpts from the notes of testimony, we conclude that Appellant's contention that the trial court limited the guilt phase closing arguments to 20 to 30 minutes per side does not truly reflect the trial judge's position, actions, or words. Notably, the trial judge did not cut short defense counsel's closing argument, but rather, after counsel had addressed the jury for thirty minutes, asked if counsel was going to be ending shortly. If counsel still had something important to say, there is no indication from the record that he could not have continued, relying on the court's instructions issued before any testimony started. We fail to see on what basis trial counsel could or should have objected to the court's actions. Nonetheless, Appellant insists that defense counsel was unable to include a number of matters in his closing argument *317 because of time limitations imposed by the trial judge, and that counsel was ineffective when he did not seek more time to include these matters. Appellant's Brief at 64-66. We have considered each of these matters in light of the entire record, and conclude that there is no arguable merit to Appellant's claims. First, Appellant contends that defense counsel was unable to argue that the testimony of the victim's children had been improperly influenced by Mr. Epps, their father, and by the prosecutor. Appellant's contention disregards or ignores many of the arguments that defense counsel did make during closing argument. Specifically, defense counsel argued that the children truly believed that Appellant had killed their mother and thus were not really lying; that the children knew all the answers to the prosecutor's questions, but could not answer most of defense counsel's questions; that there were many inconsistencies in the children's testimony; that, for a very short time after the murder, Mr. Epps was a suspect in the victim's murder, and Mr. Epps gained the most from the victim's death because of the ongoing divorce and custody actions; that "somebody else" may have influenced one of Philip's statements, made in the context of comments centered around his father; that Desiree's testimony may have been "tainted"; and that there was a "program" as to Philip's testimony. See N.T., 12/8/99, at 75-76, 80, 83, 85-87. The clear implication from defense counsel's comments was that the prosecutor had improperly coached the children prior to their testimony, and that Mr. Epps had a strong interest in deflecting blame for the victim's death from himself to Appellant and did so by influencing his children's testimony. Defense counsel's theory that Mr. Epps had influenced the children's identification of Appellant as the man who shot their mother was weakened by testimony of the victim's sister. She testified that the children called her immediately after the murder and told her that Appellant had shot their mother; a 911 tape, played for the jury, was consistent with the aunt's testimony. See N.T., 12/2/99, at 50-51; N.T., 12/3/99, at 122-24. The children's call took place prior to the reuniting of the children with Mr. Epps. Defense counsel sought during his closing argument to cast doubt on the significance of the aunt's testimony, as it was incompatible with his theory as to the genesis of the children's testimony. See N.T., 12/8/99, at 76-77. Given all of defense counsel's statements and arguments summarized above, there is absolutely no merit to Appellant's contention that counsel needed yet more time to make yet more argument concerning the influence of Mr. Epps and the prosecutor on the children. Second, Appellant contends that defense counsel was unable to argue certain details about the Commonwealth's alleged inadequate investigation and presentation of physical evidence. In particular, Appellant claims he had to omit argument concerning the following: a partial footprint from the crime scene; testimony that five shell casings were found at the crime scene; and testimony that only three of the four bullets recovered from the crime scene were conclusively determined to have been fired from the same firearm.[22] In closing argument, defense counsel repeatedly stated that the instant *318 case had been marked by a "rush to judgment" and "failure to investigate" on the part of the Commonwealth. N.T., 12/8/99, at 70, 71, 77, 81, 86, 88. Counsel mentioned the five shell casings twice and mentioned the ballistics evidence of the bullets once, as alleged examples of the failure to investigate. See N.T., 12/8/99, at 82-83. Appellant does not suggest what more points needed to be argued, but were not because of time limitations, with regard to the shell casings, the ballistics evidence, or the partial footprint. There is no merit to Appellant's allegations that counsel needed more time. Third and finally, Appellant contends that defense counsel lacked the time to include in his closing argument the issue of specific intent. More specifically, Appellant relies on testimony of the medical examiner who found no stippling of the victim's gun-shot wounds, indicating that she was not shot at close range.[23] N.T., 12/6/99, at 83-84. Appellant insists that counsel had inadequate time to develop the significance of this finding for the issue of specific intent of the shooter. See Appellant's Brief at 66. Appellant's argument is frivolous. Defense counsel's closing argument reflected—appropriately—his theory of the case, as developed throughout trial, i.e., that Appellant could not have killed the victim because he was in another state, but the victim's estranged husband, who had ample motive for the murder, sought to place the blame on Appellant. Consistent with this theory, defense counsel proffered an alibi witness; strongly challenged the credibility of the testimony of the victim's children and sister; and questioned the investigation of the police officers at the scene, including their motivation for going to Mr. Epp's home after the murder. All of this evidence was summarized in defense counsel's closing argument. Counsel's individual arguments and his overall strategy would have been undermined and the jury confused had counsel appended to his closing an aside that the shooter must not have acted with intent to kill, because the shots were not fired at close range. There is no merit to Appellant's allegation that time limitations prevented trial counsel from arguing the significance of the medical examiner's testimony as to the issue of specific intent. Certainly, counsel did not argue specific intent—but the reasons for not doing so had nothing to do with time limitations. In sum, our review of the record, as discussed above, reveals that there is no merit to Appellant's contention that trial counsel was ineffective for failing to object to the trial court's time limitation on closing argument. Because trial counsel was not ineffective, the derivative claim of appellate counsel ineffectiveness for not raising the issue of trial counsel ineffectiveness on direct appeal also is meritless. Appellant's sixth claim fails. 7. Cumulative Errors In Appellant's seventh issue, he contends that cumulative errors denied him due process. In its entirety, this claim comprises three sentences, no citations to authority or to the record, no specifics, and no argument. It is impossible to determine exactly what Appellant is alleging, and thus the claim is unreviewable. "[W]here a claimant has failed to prove prejudice as the result of any individual errors, he cannot prevail on a cumulative effect claim unless he demonstrates *319 how the particular cumulation requires a different analysis." Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 158 (2008); see also Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 579 (2009) (concluding that a broad and vague claim of the prejudicial effect of cumulative errors did not entitle the appellant to relief). Although cumulative prejudice from individual claims may be properly assessed in the aggregate when the individual claims have failed due to lack of prejudice, nothing in our precedent relieves an appellant who claims cumulative prejudice from setting forth a specific, reasoned, and legally and factually supported argument for the claim. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009) (citing Commonwealth v. Perry, 537 Pa. 385, 644 A.2d 705, 709 (1994) for the principle that a new trial may be awarded due to cumulative prejudice accrued through multiple instances of trial counsel's ineffective representation); Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 671 (2008). A bald averment of cumulative prejudice does not constitute a claim. Appellant's seventh issue entitles him to no relief. 8. PCRA Court Recusal In Appellant's eighth issue, he claims that the PCRA court erred by denying his motion for recusal. The same judge presided at Appellant's trial and over the post-conviction proceedings. Appellant alleges that the remarks of the court during a pre-trial suppression hearing indicated a bias in favor of the Commonwealth and a pre-judgment against Appellant, necessitating recusal from the post-conviction proceedings. Appellant's Brief at 77-78. A party that seeks recusal of a judge bears the burden "to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside impartially." Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998). This Court reviews a jurist's denial of a motion to recuse for abuse of discretion. Id. In addition, we have concluded that, in general, it is preferable for the judge who presided at trial to preside over any post-conviction proceedings because his or her familiarity with the case will likely assist the proper administration of justice. Id. at 90. Appellant based his motion to recuse on some statements made by the trial court during a pre-trial suppression hearing, following which the court denied Appellant's motion to suppress the in-court identification of Appellant by Philip and Desiree, the juvenile witnesses. See N.T. Suppression Hearing, 11/24/99, at 47. Specifically, Appellant cites the following: Court: The bottom line in my courtroom is if you've got the evidence to convict someone, I want the conviction to stick. Prosecutor: Me too, Judge. Court: If you don't, you don't, but if you do have it, let's do it in a way that there can't be any PCRA's down the lane.... I say that because[,] not that I have any preconceived ideas about the case or about your client, but I just want to make sure that if we can eliminate an appellate issue, we do so. N.T. Suppression Hearing, 11/24/99, at 5-6. Appellant argues that these comments show that the trial court had pre-judged the case, and accordingly the court's "clear motive was to create an aura of a superficial due process, while ensuring that [Appellant] was convicted." Appellant's Brief at 80. Appellant is mistaken—the quoted comments show nothing of the kind. The court stated that it had not pre-judged the Commonwealth's evidence, and simply *320 wanted to avoid any error that might lead to reversal on appeal if there was a conviction. No unfairness or desire to subvert due process was remotely implied by the court's comments. Appellant also claims bias in the trial court's allegedly solicitous treatment of Philip, the victim's twelve-year-old son. Appellant is again mistaken. Recognizing the young age of the child, the court was attempting to ensure that, if Philip was called as a witness at the suppression hearing, it was done in the "least traumatic" way the court could think of. N.T. Suppression Hearing, 11/24/99, at 5-6. When the prosecutor stated that he would prefer not to put the victim's children on the stand at the suppression hearing, the court assured him that he was free to call whichever witness he wanted to establish that the children had an independent basis for their identification of Appellant. Id. at 4. When defense counsel indicated that he might call Philip as a witness, the court merely suggested to the prosecutor that he might want to prepare the child for such a possibility. Id. at 5. The court also stated that it would allow the child's grandmother to sit with him in the jury box "so he can be comfortable" while he testified. Id. at 6. Contrary to Appellant's assertions, nothing in the court's words or actions suggested bias against Appellant or pre-judgment of his guilt. The court's recognition that a twelve-year-old child is not an adult and the court's desire to spare him unnecessary trauma during his testimony do not imply bias or prejudice against Appellant. Appellant's assertion of error in the PCRA court's denial of his motion to recuse is entirely lacking in merit and provides no basis for relief. 9. PCRA Evidentiary Hearing In Appellant's ninth issue, he contends that he was entitled to an evidentiary hearing regarding the "substantial claims under the United States Constitution and the Pennsylvania Constitution" raised in his petition. Appellant's Brief at 83-84. Appellant cites Pennsylvania Rule of Criminal Procedure 908(A), which provides that a judge shall order a hearing when a petition for post-conviction relief raises material issues of fact. However, Appellant does not apply the rule to his case and he does not specify within this vague and general claim a single material fact that in his view was raised by his petition and warrants a hearing. Our review of each of Appellant's claims, see text, supra, reveals that the PCRA court did not abuse its discretion in denying Appellant's petition without a hearing. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 659-60 (2003) (holding that a PCRA court did not abuse its discretion in denying a petitioner's claim without a hearing when the merits of the claim "could be adequately reviewed based upon the record and it [was] unclear what purpose an evidentiary hearing would have served"). Appellant's non-specific assertions of PCRA court error for failure to hold a hearing do not entitle him to relief. 10. Notice of Intent to Dismiss In Appellant's tenth and final issue, he contends that the PCRA court violated Pennsylvania Rule of Criminal Procedure 907 and 909 when the court did not provide notice that it was dismissing Appellant's guilt phase claims without an evidentiary hearing. Rule 907 provides in relevant part as follows: Except as provided in Rule 909 for death penalty cases, (1) the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant's claim(s). If the *321 judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. Pa.R.Crim.P. 907(1). Similarly, Rule 909 provides in relevant part as follows: (B) Hearing; Disposition (1) No more than 20 days after the Commonwealth files an answer pursuant to Rule 906(E)(1) or (E)(2), or if no answer is filed as permitted in Rule 906(E)(2), within 20 days after the expiration of the time for answering, the judge shall review the petition, the Commonwealth's answer, if any, and other matters of record relating to the defendant's claim(s), and shall determine whether an evidentiary hearing is required. (2) If the judge is satisfied from this review that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings, (a) the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. (b) The defendant may respond to the proposed dismissal within 20 days of the date of the notice. Pa.R.Crim.P. 909(B). We have previously made clear that the intent behind these rules is to ensure that an evidentiary hearing is held when a PCRA petition raises factual issues that must be resolved. Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, 473 (1995). "[N]otice of a court's intention to dismiss is required only where the trial court, after review of the petition, any answer by the Commonwealth thereto, and any other matters of record, determines that a hearing is not necessary, that the petitioner is not entitled to post-conviction relief, and that no further proceedings are necessary." Id. (emphasis in original). In Commonwealth v. Lark, 548 Pa. 441, 698 A.2d 43, 52 (1997), we concluded that no pre-dismissal notice was required pursuant to Rule 907(a) because the court had heard oral argument on the matter of whether an evidentiary hearing was required prior to determining that there were no factual matters to be resolved.[24] Based on our holdings in Banks and Lark, we conclude that the PCRA court did not violate Rules 907 or 909 by failing to provide Appellant with formal written notice of intent to dismiss his guilt-phase claims. A brief procedural history of Appellant's case will suffice to explain this conclusion. Appellant filed a pro se PCRA petition on January 13, 2004. The PCRA court appointed counsel, who filed an amended PCRA petition on January 28, 2005. The Commonwealth filed a motion to dismiss on June 2, 2005, to which Appellant filed a reply on December 20, 2005. On February 21, 2006, the PCRA court held a hearing, at which time defense counsel correctly asserted that, under prevailing law, an evidentiary PCRA hearing is required when there is an outstanding issue of material fact. N.T., 2/21/06, PCRA Hearing, at 3. Defense counsel then argued that a hearing was required for *322 many of Appellant's guilt phase as well as penalty phase claims. After hearing the arguments of defense counsel and then the Commonwealth, the court made clear its conclusion that there was no need for an evidentiary hearing as to the guilt phase claims. Id. at 46-47. However, the court did grant an evidentiary hearing as to Appellant's claims of ineffective assistance of counsel during the penalty phase. Id. at 46-47. Appellant had ample notice and ample opportunity to set forth the material facts that, in his view, remained at issue and accordingly justified an evidentiary hearing. Accordingly, we hold that there was no violation of Rules 907(1) or 909(B), and Appellant is entitled to no relief on his tenth and final issue. In sum, after review of each of Appellant's guilt phase issues, we conclude that none has any merit, and therefore we affirm the order of the PCRA court denying Appellant guilt phase relief. Chief Justice CASTILLE, Justices EAKIN, BAER, ORIE MELVIN, join the opinion. Justice TODD concurs in the result. Justice SAYLOR files a dissenting opinion. Justice SAYLOR, dissenting. Respectfully, I have material differences with the majority reasoning and dissent in favor of an evidentiary hearing. Initially, concerning the state of this Court's "layering" jurisprudence in general, I have set down some of my own thoughts in Commonwealth v. Ly, 605 Pa. 261, 989 A.2d 2 (2010) (per curiam), which I incorporate here by reference. See id. at 262-65, 989 A.2d at 2-5 (Saylor, J., dissenting). The concerns raised in Ly are magnified, in the capital arena, due to the involvement of the former relaxed waiver doctrine and its potential impact on the decisions of trial and appellate lawyers in capital litigation throughout the period in which the doctrine remained extant.[1]See generally Maura Caffrey, Untying the Knot: A Solution for Confusion in Federal Habeas Review of Pennsylvania State Court Capital Convictions, 11 U. PA. J. CONST. L. 985 (2009). I remain convinced that these difficulties cannot be effectively mitigated until this Court addresses the due process concerns being raised regarding both the application of the Hubbard rule in light of time-and-resources constraints connected with direct appeals, see Ly, 605 Pa. at 262-65, 989 A.2d at 2-5 (Saylor, J., dissenting), and the retroactive abolition of relaxed waiver. See Commonwealth v. Steele, 599 Pa. 341, 429 n. 3, 961 A.2d 786, 839 n. 3 (2008) (Saylor, J., dissenting). Notably, the present case is yet another in which it is asserted that direct-appeal counsel understood that his duties did not encompass investigation and presentation of extra-record claims. See Declaration of James J. McHugh, Jr. (Feb. 17, 2006) (relating contents from an interview with Appellant's direct-appeal counsel). Second, the majority approves the admission of a detective's opinion of a child witness's "ability to distinguish truth from a lie" during an interview. Majority Opinion, at 299 n. 11. While I agree the detective could testify to his observations of the child's demeanor, I fail to see how a law enforcement officer's opinion as to her extrajudicial truth-telling ability would not bolster the Commonwealth's position concerning *323 such capability in the courtroom. Moreover, the admission of such an opinion seems to me to be in tension with the prevailing law limiting juror involvement in determining competency to testify, see id. at 289-91, as well as the decisions reserving the subject of witness veracity to the jury. See, e.g., Commonwealth v. Balodis, 560 Pa. 567, 576, 747 A.2d 341, 345 (2000) (explaining that this Court has "reject[ed] the need for expert testimony on the question of a witness' veracity").[2] Contrary to the majority position, see Majority Opinion, at 299 n. 11, I also believe the prosecutor's affirmations of the other child witness's answers to the voir-dire-type questions—which were improper in the first instance under prevailing law, see id. at 295—represented objectionable bolstering. Indeed, it is difficult to envision a more straightforward example of bolstering than affirming a witness's response as "pretty good."[3] Next, I have difficulty with the characterization of testimony that Appellant attempted to force himself upon the victim in the days prior to the killing, and that a protection-from-abuse order was secured against Appellant by another woman, as "fleeting." Id. at 299. While I realize this term was used in the direct appeal, Appellant's brief at that stage did not mention the prosecutor's forceful reference to these events in his closing argument. See id. at 308-09 (quoting the relevant remarks of the district attorney). Moreover, although this extra-record claim was presented on direct appeal, Appellant has proffered that direct-appeal counsel nonetheless engaged in no extra-record investigation. See McHugh Dec. at 1-2. Thus, it would appear that direct-appeal counsel may be among a substantial number of appellate attorneys who did not appropriately represent their capital clients on direct appeal. See Ly, 605 Pa. at 263-65, 989 A.2d at 3-4 (Saylor, J., dissenting) (discussing the controversy surrounding the Hubbard rule that extra-record claims had to be raised on direct appeal on pain of waiver).[4] Particularly in light of the potent argument advanced by the prosecutor, it seems unlikely to me that the jurors, in a first-degree murder prosecution advancing a domination theory of motive, would have overlooked an attempted sexual assault of the victim and a restraining order involving another woman. Moreover, and again, we do not have counsel's explanation for why he did not object, and in this void, the majority's attribution of a reason for such omission (see Majority Opinion, at 299-300) appears to me to represent extra-record gleaning of motivations and strategies, a practice this Court has previously eschewed. See, e.g., Commonwealth v. Duffey, 579 Pa. 186, 205, 855 A.2d 764, 775 (2004) (directing that "only when the record clearly establishes that the act or omission of trial counsel was without a reasonable basis should the court resolve the reasonable basis prong absent a remand for an evidentiary hearing as to counsel's strategy") (citing Commonwealth v. McGill, 574 Pa. 574, 588, 832 A.2d 1014, 1022 (2003)).[5] *324 Next, in rejecting Appellant's claim of ineffectiveness connected with the introduction of other-bad-acts evidence, the majority indicates that Appellant "implicitly calls into question trial counsel's overarching strategy and theory of the case." Majority Opinion, at 303. In fact, Appellant's brief explicitly questions counsel's overarching strategy, along with the adequacy of the underlying guilt-phase investigation. For example, Appellant argues: On its face, the guilt phase case against Appellant was substantial. It consisted of two eye-witnesses, that knew Appellant, who testified they clearly saw Appellant shoot the decedent. The Commonwealth also presented evidence of Appellant's flight immediately after the shooting. The Commonwealth also presented extensive evidence of domestic discord between Appellant and the decedent—in the form of verbal and physical fights—starting at least a week before the shooting and continuing literally up to the moment before the fatal shots were fired. Clearly counsel should have at least considered the fact that the issue for the jury in this case was not going to be who did it, but rather what was the state of mind of the shooter before he presented a weak alibi case. Brief for Appellant at 72.[6] Despite such allegations, the extent of counsel's guilt-phase investigation and preparation remains undeveloped, because the PCRA court refused to conduct an evidentiary hearing.[7] While the majority *325 correctly indicates that the Court "will not conclude that counsel was ineffective merely because the jury did not find his narrative convincing or his strategy credible," Majority Opinion, at 303-04, here, deficient investigation and preparation are alleged. See generally Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984) (explaining that a reasonable investigation is a prerequisite to the formulation of reasonable strategy). Next, I differ with the majority's pronouncement that the other-bad-acts evidence was not inflammatory or extensive. See Majority Opinion, at 306. In fact, the prosecutor highlighted the assertions in connection with a compelling argument advancing the Commonwealth's theory that the motive for the killing centered on Appellant's thwarted desire for domination. See id. at 308-09 (quoting the relevant passage from the district attorney's closing). I also have difficulty with the majority's explanation that a limiting instruction might well have served only to reemphasize the evidence to the jurors, see id. at 306, since, particularly after the prosecutor's potent remarks, its seems unlikely they would have forgotten it. Moreover, the attribution of such a strategy to trial counsel (see id.), in the absence of an evidentiary record, seems, again, to be gleaning. As to the claims of deficient stewardship for failing to investigate and present the alternate defense of diminished capacity, I agree with the majority that prevailing law is that such a defense cannot be presented in the alternative to an innocence-based one. See id. at 311-313.[8] However, I question the majority's suggestion that trial counsel had no basis to consider investigating alternative defenses. In this regard, the majority repeatedly asserts that counsel was confronted with overwhelming evidence that Appellant perpetrated the killing. See, e.g., id. at 300 n. 13. It seems logically inconsistent to say counsel lacked any obligation to probe the possibility of alternative defenses. See id. at 314. Cf. Commonwealth v. Davido, 582 Pa. 52, 80, 868 A.2d 431, 447 (2005) (Castille, C.J., concurring) (commenting that attorneys "are not potted plants"). Next, I differ with the majority to the degree it suggests some material difference between an unsworn declaration and an affidavit for purposes of determining the availability of an evidentiary hearing. See Majority Opinion, at 313-14 n. 19. Our rules only require that a petitioner provide "affidavits, records, documents, or other evidence which show the facts stated" in a PCRA petition. Pa.R.Crim.P. 902(D). Declarations have long been accepted by the Court to assist in evaluating whether a hearing is required on a petitioner's proffer. In light of the limited purposes for which such documents are submitted—which is not to prove a claim, but merely to demonstrate that material facts are in issue and an evidentiary record should be developed—I do not see why the distinction between the different forms of submissions continues to be highlighted in our opinions. In summary, and in line with many of my previous expressions, I believe that the appropriate way for this Court to address the intractable difficulties which have arisen *326 in the death-penalty arena is to consistently enforce the requirement of an evidentiary hearing where material facts are in issue; to require appropriately developed factual findings and legal conclusions of the PCRA courts; and to apply consistent and fair review criteria on appeal.[9] It is my considered position there remains a great need for improvement in each of these areas. NOTES [1] 42 Pa.C.S. §§ 9541-46. [2] Appellant raises the following issues, which we have reordered for ease of disposition but reproduced verbatim: 1. Did the Commonwealth use its peremptory strikes in a discriminatory manner; and were trial and appellate counsel ineffective for failing to object and raise this claim in violation of the Sixth and Fourteenth Amendments and the corresponding provisions of the Pennsylvania Constitution? 2. Was Appellant was denied his rights to due process under the United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the juvenile witnesses were colloquies as to competency in the presence of the jury; and were trial and appellate counsel ineffective for failing to object and raise this claim? 3. Was Appellant denied his rights under the Sixth and Fourteenth Amendments and the corresponding provisions of the Pennsylvania Constitution where the Commonwealth introduced evidence of other bad acts including Appellant's propensity for violence and the court failed to give a cautionary instruction to the jury; and were trial and appellate counsel ineffective for failing to object and raise this claim? 4. Was Appellant denied a fair trial in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution as a result of prosecutorial misconduct; and were trial and appellate counsel ineffective for failing to object and raise these claims? 5. Was Appellant denied his rights under the Sixth and Fourteenth Amendments and the corresponding provisions of the Pennsylvania Constitution where trial counsel ineffectively failed to investigate, discuss with Appellant, or present, voluntary intoxication, diminished capacity and heat of passion defenses; was appellate counsel ineffective for failing to raise, brief and argue this issue on appeal? 6. Was Appellant denied his right to due process under the United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the trial court improperly limited the closing argument of Appellant's counsel; and were trial and appellate counsel ineffective for failing to object and raise this claim? 7. Is Appellant entitled to relief from his conviction because of the cumulative prejudicial effect of the errors denied him due process and all prior counsel were ineffective to the extent they failed to properly object, raise and litigate these claims at trial and on direct appeal? 8. Was Appellant denied his rights under the Sixth and Fourteenth United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the PCRA court failed to recuse itself upon motion of Appellant? 9. Was Appellant entitled to an Evidentiary Hearing? 10. Did the trial court err in dismissing Appellant's claims of trial error without notice as required by Pa.R.Crim.P. 909(B)(2)? Appellant's Brief at 3-4. [3] Appellant's contention that he was represented at trial and on direct appeal by the same attorney is not supported by the record. Appellant was represented at trial by Stephen P. Patrizio, Esq., who, on April 27, 2000, after filing a notice of appeal, was permitted by this Court to withdraw. On July 11, 2000, James S. Bruno, Esq., entered his appearance on behalf of Appellant before this Court. [4] Justice Baer authored the lead opinion in Ligons, joined only by Justice Todd. Chief Justice Castille authored a concurring opinion, joined by Justices Eakin and McCaffery. Justice Saylor authored a concurring and dissenting opinion. However, with regard to the Batson issue, most if not all justices were in agreement and joined the lead opinion. See Ligons, supra at 1170 (Concurring Opinion, Castille, C.J.); id. at 1171 (Concurring and Dissenting Opinion, Saylor, J.). Chief Justice Castille concluded that the lead opinion was a majority expression with respect to the numerous points of joinder and thus was "properly referred to as a majority opinion." Id. at 1159 n. 1 (Concurring Opinion, Castille, C.J.). [5] Specifically, Appellant contends that, in seven other capital prosecutions between 1991 and 1997, Mr. Fisher struck via peremptory challenge 44 out of 92 African-American venirepersons (48%), but only 29 out of 105 non-African-American venirepersons (28%). Similarly, Appellant contends that the District Attorney's Office as a whole "over this time period" struck via peremptory challenge 1,113 out of 2,250 African-American venirepersons (49%), but only 786 out of 3,149 non-African-American venirepersons (25%). See Appellant's Brief at 15 & n. 8. [6] The McMahon and Sagel lectures were delivered, respectively, in 1987 and 1990. Philadelphia Magazine brought both of the lectures to public attention in June 1997. See Marshall, 947 A.2d at 717-18. Appellant's trial took place in 1999. [7] The children were nine and twelve, respectively, at the time of trial, which took place approximately 26 months after their mother's murder. [8] Pa.R.E. 601(a) provides as follows: General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these Rules. The Comment to Rule 601 expressly states that Pa.R.E. 601 "is intended to preserve existing Pennsylvania law." In Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959), this Court stated that, under the prevailing rule, competency was presumed when the witness was over 14 years of age; however, when the witness was under 14 years of age, "there must be judicial inquiry as to mental capacity, which must be more searching in proportion to chronological immaturity." [9] It is notable that different jurisdictions have promulgated very different rules as to how— or even if—a hearing to determine the competency of a child witness is to be conducted. Courts and commentators have recognized a "trend that has converted questions of competency into questions of credibility." 3 Weinstein's Federal Evidence § 601.02[1] (quoted in State v. Hueglin, 130 N.M. 54, 16 P.3d 1113, 1117 (App.2000)); see also Johnson v. United States, 364 A.2d 1198, 1202 n. 12 (D.C.1976) (citing McCormick, Evidence § 62 (2d ed.1972) ("The current trend is to regard the competency of a witness as a question of credibility for the jury and to admit the testimony for what it is worth.")). Wisconsin law exemplifies such a trend. Prior to 1974, under Wisconsin law, the competency of a child witness was a question to be determined by the court; however, when the Wisconsin Supreme Court adopted new rules of evidence, effective January 1, 1974, the law as to competency determination dramatically changed. See State v. Davis, 66 Wis.2d 636, 225 N.W.2d 505, 510 (1975) (stating that, pursuant to the new Wisconsin rule of evidence set forth at Wis. Stat. § 906.01, "every witness is competent to testify (with certain noted exceptions) and [ ] all former competency issues now are issues of credibility to be dealt with by the trier of fact"); State v. Hanson, 149 Wis.2d 474, 439 N.W.2d 133, 136 (1989) (holding that a trial judge erred as a matter of law in striking a child's testimony on the basis of competency because, under Wis. Stat. § 906.01, "competency is no longer a test for the admission of a witness' testimony [and the] only question is credibility which will be resolved when the case is submitted on the merits"); State v. Dwyer, 143 Wis.2d 448, 422 N.W.2d 121, 126 (App.1988) (explaining that the intention of new Section 906.01 "is to remove from judicial determination the question of competency and to submit the testimony to the jury so that it may assess its weight and credibility"); State v. Daniels, 117 Wis.2d 9, 343 N.W.2d 411, 414-15 (App. 1983) (discussing the import of new Wis. Stat. § 906.01 in the context of a child witness). In the federal courts, "every person is competent to be a witness," see Fed.R.Evid. 601, and "[a] child is presumed to be competent" to be a witness, see 18 U.S.C. § 3509(c)(2). The court may conduct a competency examination regarding a proffered child witness only if the court determines, on the record, that compelling reasons exist for such examination. 18 U.S.C. § 3509(c)(4). "A child's age alone is not a compelling reason." Id. If the court concludes that compelling reasons exist for a competency examination of a child witness, it must be conducted in the absence of the jury. 18 U.S.C. § 3509(c)(6). See also United States v. Allen J., 127 F.3d 1292 (10th Cir.1997) (upholding the district court's refusal to hold a competency examination for a twelve-year-old female victim of sexual abuse after the defendant challenged her competence to testify based on evidence that she suffered from developmental delays and mild mental retardation). In many other jurisdictions, as in Pennsylvania, the competency of a child witness to testify in court remains a threshold question of law, resting within the sound discretion of the trial court. However, opinions have varied as to whether voir dire of the child witness should be conducted in the presence or absence of the jury. See Washington, 722 A.2d at 646 n. 4 and n. 5 (citing holdings from various jurisdictions on this issue). In the District of Columbia, voir dire of a child witness may be conducted in the presence or absence of the jury, at the discretion of the trial court. See O'Brien v. United States, 962 A.2d 282, 302 (D.C.2008); Barnes v. United States, 600 A.2d 821, 823 (D.C.1991); Smith v. United States, 414 A.2d 1189, 1198 (D.C. 1980); Brown v. United States, 388 A.2d 451, 458 (D.C. 1978). As the D.C. Court of Appeals stated in Brown, supra at 458, voir dire in the presence of the jury "assists the jurors in evaluating independently the child's qualifications as a witness." The Brown court held that the trial court did not commit reversible error in permitting a brief line of questioning in the presence of the jury as to the child witness's understanding of the distinction between truth and lies, concluding that such questioning may have aided the jury in assessing the credibility of the child's testimony and the weight to be accorded to it. Courts in Rhode Island and Missouri, on the other hand, have concluded that voir dire of a child witness should be conducted outside the presence of the jury. State v. Girouard, 561 A.2d 882, 885 (R.I.1989); State v. Gantt, 644 S.W.2d 656, 658 (Mo.Ct.App.1982). [10] Ms. Pugh was initially called as a Commonwealth witness, but subsequently the defense also called her as a witness. This testimony was given during the Commonwealth's cross-examination of Ms. Pugh. [11] Appellant also briefly asserts that Detective Dougherty, who took the statement from Desiree concerning her mother's murder, and the prosecutor "vouched" for the testimony of Desiree and Philip, respectively. Detective Dougherty testified that, on the night of the murder, although Desiree seemed somewhat stunned by what she had seen, she was nonetheless able to answer questions about telling the truth. The detective concluded that he was comfortable with Desiree's understanding of the truth versus a lie. See Appellant's Brief at 48, 54-55 (quoting N.T., 12/3/99 at 151). Contrary to Appellant's assertion, Detective Dougherty did not offer his opinion as to the credibility of Desiree's testimony, but rather opined as to her demeanor and her ability to distinguish truth from a lie during his interview with her on the night of her mother's murder. Appellant also asserts that the prosecutor effectively declared that Philip's testimony was truthful. The prosecutor asked Philip if he could distinguish between truth and a lie, and after the child responded, the prosecutor rephrased the child's answer, stating "That is pretty good. That is stated pretty good. The truth is telling about the thing the way it happened and a lie is telling something else—". See Appellant's Brief at 55 (quoting N.T., 12/2/99 at 54); see also text, supra (statement reproduced in context). Contrary to Appellant's assertions, the prosecutor did not state his opinion that the children's testimony was truthful. See id. at 48-49, 55. Rather, the prosecutor merely stated that Philip's attempt to state the difference between the truth and a lie was "pretty good." We do not agree that these comments bolstered the children's testimony in the eyes of the jury. Furthermore, there is no reason to believe that these brief and passing comments resulted in prejudice to Appellant, such that the result of his trial would have been different had defense counsel objected. As we have explained in detail in the text, supra, despite lengthy and probing cross-examination, the children were unwavering in their testimony that Appellant shot their mother. [12] We have reordered Appellant's sub-issues for ease of disposition. See Appellant's Brief at 26-27. [13] The dissent would reopen the questions of trial counsel ineffectiveness raised in sub-issues (a) and (b), even though we resolved those matters on the merits on direct appeal. See Saylor, J., dissenting opinion at 325. Based on Appellant's proffer that appellate counsel engaged in no extra-record investigation, the dissent appears to suggest the need for an evidentiary hearing as to whether trial counsel had a reasonable basis for not objecting to the testimony that he elicited during his cross-examination of the victim's sister and Officer Fischer. We cannot agree. As the dissent points out, in our resolution of this issue on direct appeal, we suggested that an objection by trial counsel may have served only to highlight the passing comments in the minds of the jurors. However, we further concluded that "in light of the overwhelming evidence of Appellant's guilt, Appellant has also failed to show a reasonable probability that the outcome of the trial would have been different had trial counsel objected to these two fleeting references." Hutchinson, 811 A.2d at 562. We thus held that Appellant's claim of trial counsel ineffectiveness "necessarily fails" due to an absence of a showing of prejudice. Id. Given our holding on direct appeal as to the lack of prejudice, we fail to see any rationale or need for an evidentiary hearing. [14] The dissent maintains that "Appellant's brief explicitly questions counsel's overarching strategy, along with the adequacy of the underlying guilt-phase investigation." Saylor, J., dissenting opinion at 324 (citing Appellant's Brief at 72). However, the dissent's citation to Appellant's brief here is entirely out of context. The portion of Appellant's brief cited by the dissent addresses a different issue, specifically Issue 5, infra, in which Appellant alleges that counsel was ineffective for failing to investigate and present voluntary intoxication, diminished capacity, and heat of passion defenses. We discuss these allegations of ineffectiveness in the context in which they were made, i.e., under Issue 5. [15] Indeed, Appellant proffered as evidence to the PCRA court several of his medical records from Princess Margaret Hospital in the Bahamas, from 1985-1992, which bore the name Fabian Hutchinson. See Reproduced Record, Exhibit 18. [16] Officer Miles, who wrote the notes at issue was available to testify at trial, but the defense declined to call him. See N.T., 12/8/99, at 5, 9, 39-40. [17] We note that defense counsel called as a witness at trial the officer who prepared the crime scene log and extensively examined him. See N.T., 12/8/99, at 9-30. Appellant does not assert that this examination was in any way inadequate or ineffective. In addition, as the Commonwealth points out, it was not entirely clear from the evidence presented at trial how many shots had been fired at the scene. See Commonwealth's Brief at 33. Desiree testified that more than one shot had been fired, although she did not remember how many; Philip testified that four or five shots had been fired. See N.T., 12/1/99, at 131, and N.T., 12/2/99, at 60, respectively. [18] Spotz was the opinion of a divided Court, but a majority of justices joined that portion of the opinion addressing the defense of diminished capacity. See Spotz, 896 A.2d at 1250 and 1251 (concurring opinions, Cappy, C.J. and Castille, J., respectively). [19] We recognize that, based on this Court's precedent, counsel's "Affidavit/Declaration" is not properly characterized as an affidavit because the declarant did not swear to its truth before an officer authorized to administer oaths. See Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 823 (2008) (citing 1 Pa.C.S. § 1991 for the definition of affidavit); Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945, 974 n. 27 (2008) ("[I]t appears that [an unsworn declaration] standing alone would be insufficient to establish the reasonable basis prong" of the test for ineffective assistance of counsel."); Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1148 n. 7 (2005) (citing 1 Pa.C.S. § 1991); Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1188 n. 10 (2005); see also Brown, supra at 1169-70, (Castille, J., concurring) ("Unwitnessed and unsworn non-affidavits ... are of considerably less value than sworn affidavits."). However, Appellant has proffered this document as evidence, does not dispute any portion of its contents, and relies upon it for his argument. Appellant's Brief at 77. [20] We must point out that Appellant's assertion that his case is "strikingly similar" to that of Commonwealth v. Moore, 569 Pa. 508, 805 A.2d 1212 (2002) (Opinion Announcing the Judgment of the Court), is erroneous. See Appellant's Brief at 75. In Moore, the appellant argued self-defense at his murder trial, but then asserted in his PCRA petition that trial counsel should have presented a diminished capacity defense. As we stated in Moore, "the theories of self-defense and diminished capacity are not mutually exclusive and could have been presented together." Id. at 1218. In contrast, Appellant here presented an innocence defense, which was irreconcilably incompatible with a diminished capacity defense. Accordingly, Appellant's attempt to rely on Moore is wholly unavailing. [21] Defense counsel's closing argument took up 24 pages total of the notes of testimony, and the court interrupted him on page 22. See N.T., 12/8/99, at 66-90. [22] The actual testimony as to the ballistics evidence was that three of the four bullets recovered could be definitively matched to a single weapon. One bullet could not be definitively matched to that same weapon, but the evidence could not rule out the possibility that all four bullets had come from the same weapon. N.T., 12/6/99, at 11. The matter of the five shell casings was discussed in the text, supra, under issue 4, alleged Brady violations. [23] The meaning of "close range" in this context is derived from the medical examiner's testimony: The lack of stippling around the victim's wounds indicated that she had been shot from a distance of at least two or three feet. N.T., 12/6/99, at 83-84. [24] Rule 907 was, prior to April 1, 2001, numbered Rule 1507. [1] Appellant discusses a due process concern associated with the relaxed waiver doctrine, which applied at the time of his direct appeal, see Brief for Appellant at 9-10, albeit this is not addressed by the majority. [2] While the detective was not qualified as an expert, it seems reasonable to assume that a lay juror might believe that such a law enforcement officer would acquire special experience in evaluating truth telling. [3] The prosecutor's encouraging approach to the questioning of this child-witness is consistent with the manner in which many adults conduct discussions with young children. The difficulty is that, in the courtroom, there is the potential for a collateral bolstering effect. [4] Only one other issue was pursued on direct appeal. [5] I realize that a recent decision of the United States Supreme Court appears to suggest that extra-record gleaning is appropriate for purposes of federal habeas corpus review. See Cullen v. Pinholster, ___ U.S. ___, ___, 131 S.Ct. 1388, 1404-06, 179 L.Ed.2d 557 (2011). There are material differences, however, between state post-conviction and federal habeas review, see generally Commonwealth v. Beasley, 600 Pa. 458, 483-85, 967 A.2d 376, 391-92 (2009), and it is unclear whether (and/or to what degree) the Pinholster decision will bear relevance to this Court's disapproval of gleaning. At the very least, this Court's own approach—deriving from the compromise decision in McGill—was intended to provide more concrete footing for addressing trial strategies to mitigate differences among members of the Court for purposes of primary-level, state post-conviction review. [6] The majority criticizes my opinion for reading the above "out of context," since the particular expression is set out in connection with a different claim. Majority Opinion, at 303 n. 14. My response is as follows. Over the past decade, this Court has imposed more and more mandates and strictures on capital petitioners seeking appellate post-conviction review. See, e.g., McGill, 574 Pa. at 587-90, 832 A.2d at 1022-23. Indeed, in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), the Court retroactively imposed a mandatory multi-part analytical overlay on derivative post-conviction claims in the death-penalty arena. See id. at 45, 720 A.2d at 700. After having increased the briefing burden multi-fold in such cases, for reasons which are beyond the scope of this opinion, the Court now appears to be in the process of decreasing the allowed length of the briefs. See, e.g., Commonwealth v. Roney, 587 CAP, per curiam Order (Pa. June 9, 2011); Commonwealth v. Spotz, 610 CAP, per curiam Order (Pa. June 11, 2011). Particularly against this landscape, I fail to see how it does anyone any good to require these appellants to repeat every detail of every theme running through their briefs within every subpart of the submissions. Moreover, the task of solidifying the arguments against a factual context would be far simpler on a developed evidentiary record, had a hearing been allowed, as I believe it should. Finally, the Court appears willing to rely on the many constraints facing trial attorneys representing capital defendants when passing on challenges to their stewardship. I have difficulty appreciating why there is not some concomitant appreciation of various limitations impacting presentations by appellate counsel when we read their briefs. [7] Although no definitive conclusions can be drawn, the Commonwealth's unexplained stipulation to penalty-phase relief suggests the possibility of deficient stewardship at least in that phase of trial. [8] Parenthetically, I have expressed a willingness to reconsider this prohibition upon appropriate arguments. See Commonwealth v. Spotz, 587 Pa. 1, 107-08, 896 A.2d 1191, 1254-55 (2006) (Saylor, J., concurring and dissenting). Such arguments are not developed here, however. [9] Early in my tenure on the Court, we attempted to set forth a roadmap for such decision-making in the 1999 decision of Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999), albeit differing majority views on this subject certainly have surfaced in the aftermath.

224 Cal.App.3d 1033 (1990) 274 Cal. Rptr. 226 In re the Marriage of SHIRLEY and RAYMOND KREISS. RAYMOND H. KREISS, Respondent, v. SHIRLEY M. KREISS, Appellant. Docket No. H006100. Court of Appeals of California, Sixth District. October 23, 1990. *1034 COUNSEL Gregory P. Allen for Appellant. Edward S. Miller and John F. Rinaldi for Respondent. OPINION COTTLE, J. Shirley M. Kreiss appeals from an order denying her motion to set aside an order terminating spousal support awarded her in the judgment of dissolution of her marriage to Raymond H. Kreiss. Because the record reveals that appellant was not served with notice of the motion to terminate her spousal support, as required by Civil Code section 4809,[1] we must grant the relief she seeks. BACKGROUND The marriage of appellant Shirley M. Kreiss and respondent Raymond H. Kreiss was dissolved in 1978. Appellant was awarded spousal support in *1035 the amount of $525 per month, to continue until her remarriage, the death of either party, or further order of the court. Appellant was also awarded a share of respondent's future retirement benefits based on the length of their marriage. In January 1987 appellant consulted attorney Ian G. Allen concerning the dissolution and a tax matter. Allen had not previously represented appellant. In October 1987 appellant and respondent together met with Allen to seek his opinion on spousal support and the proper division of respondent's retirement benefits. When respondent retired in February 1988, he stopped paying spousal support and began to pay appellant $665 per month from his pension. Allen sent the parties his opinion letter on July 14, 1988. The letter reminded them that spousal support orders continue until terminated by further court order. The letter also advised that respondent owed appellant $3,150 in spousal support arrearages, among other items not at issue in this appeal. On receiving Allen's letter, respondent consulted attorney John F. Rinaldi for assistance in resolving the support issue. Rinaldi contacted Allen, who informed him that he represented appellant. On July 22, 1988, Rinaldi filed a notice of motion for termination of spousal support and for determination of pension rights. The motion was set for hearing on September 6, 1988. The notice of motion and accompanying income and expense declaration were served by mail on Allen as attorney for appellant. The record reveals no service on appellant. On July 29, 1988, Allen telephoned Rinaldi to request that the hearing be continued to September 20, 1988. They did not reach an agreement for a continuance. On August 8, 1988, Allen discussed with Rinaldi the possibility of settlement to obviate the need for a hearing. According to Rinaldi, Allen made a settlement offer with the understanding that if no settlement were reached, someone from his law offices would appear at the September 6 hearing. Rinaldi wrote to Allen on August 24, 1988, rejecting settlement. Respondent and Rinaldi were present at the September 6 hearing, but neither appellant nor her counsel appeared. Respondent did not offer any proof of service. As the court file contained no response to the motion, the trial court heard the matter as a default and granted the motion. On September 14, 1988, the trial court signed the order terminating spousal support and determining appellant's interest in respondent's retirement benefits. To correct a clerical error in the September 14 order, an amended *1036 order accurately reflecting the trial court's ruling was prepared and was signed on October 7, 1988.[2] On the day after the hearing, Allen telephoned Rinaldi to find out what had happened. Rinaldi informed him the court had granted the motion. Allen then questioned the propriety of service on him of the notice of motion, citing section 4809. Allen requested that Rinaldi stipulate to vacate the order. Rinaldi declined to do so. On December 12, 1988, Gregory P. Allen substituted in as attorney of record for appellant. Two days later, Gregory Allen notified Rinaldi of his substitution and requested that the orders of September 14 and October 7 be set aside. Rinaldi again refused to do so. On April 6, 1989, appellant filed a motion to set aside the underlying orders. The trial court denied the motion as untimely under Code of Civil Procedure section 473. Appellant filed a timely notice of appeal. DISCUSSION (1) Preliminarily, we address respondent's contention that the order terminating spousal support is affirmable and not void for lack of timely return of proof of service, since a failure to file proof of service before entry of judgment makes the judgment irregular but not void. (Connelly v. Castillo (1987) 190 Cal. App.3d 1583, 1589 [236 Cal. Rptr. 112].) An irregular judgment, respondent notes, is not subject to collateral attack. (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal. App.3d 410, 417 [214 Cal. Rptr. 113].) Although these propositions are correct, respondent's contention misconceives the thrust of appellant's argument. (2) Appellant asks us to reverse the orders entered below not principally because of respondent's failure to make timely return of proof of service, but rather because the orders are void due to his failure to comply with section 4809. Accordingly, we must address the requirements of that statute. Section 4809 provides in relevant part as follows: "After the entry of a judgment decreeing the dissolution of the marriage or the legal separation of the parties, ... no modification of such judgment, order, or decree, and no subsequent order in such proceedings shall be valid unless any prior notice otherwise required to be given to a party to the proceeding be served, *1037 in such manner as such notice is otherwise permitted by law to be served, upon the party himself. For such purpose, service upon the attorney of record shall not be sufficient." Section 4809, and its predecessor, former section 147, were designed to remedy the problem that occurs in dissolution cases when a party attacks an order long after it was entered. (In re Marriage of Askren (1984) 157 Cal. App.3d 205, 211 [203 Cal. Rptr. 606].) Under prior law, a party would serve notice of a motion made after entry of final judgment on the attorney of record, as the court had continuing jurisdiction in the proceeding. In many cases, modification of a support order was sought long after an attorney had lost touch with his or her client. The attorney then had to make a perfunctory and often ineffective challenge with no help from the former client and with no recent information with which to defend the client's interest. Section 4809 deals with this problem by requiring service of notice of subsequent proceedings on the party and by stating explicitly that "`[f]or such purpose, service upon the attorney of record shall not be sufficient.'" (See In re Marriage of Askren, supra, 157 Cal. App.3d at p. 211, fn. 1.) Respondent does not dispute his failure to serve appellant with notice of the motion. Rather, he contends that the following facts, taken together, demonstrate that Allen waived the requirements of section 4809: (1) Allen's statement that he was representing appellant, (2) his attempts to obtain a continuance and to negotiate a settlement, (3) his representation that someone from his office would appear at the hearing if no settlement were reached, and (4) his failure to raise the issue of lack of service when confronted with Rinaldi's rejection of his proposals for settlement and continuance. Ruszovan v. Ruszovan (1969) 268 Cal. App.2d 902, 906 [74 Cal. Rptr. 507], held that the strict legal requirements of section 4809 can be waived by the client and the attorney. In Ruszovan, the former husband sought to modify the custody provisions of a final divorce decree. Following the divorce, the wife had remarried. Her new husband was her attorney of record in the divorce proceedings. She worked in his law office. The former husband attempted to serve the wife with an order to show cause at the law offices of her attorney-husband. The wife was not present, but the attorney-husband, who continued to represent her, accepted service and subsequently obtained a stipulation to continue the custody hearing. He did not, however, appear at the hearing. The trial court exercised jurisdiction and ordered a modification of custody. The Court of Appeal affirmed, reasoning that the attorney-husband's actions in obtaining a stipulation for a continuance amounted to a waiver of the strict requirements of section 147, predecessor to section 4809. *1038 Respondent urges that the facts of this case are so similar to those in Ruszovan that we should likewise affirm. In light of what we consider the significant dissimilarities between the two cases, we cannot agree. In Ruszovan, the husband attempted to serve his former wife. (Ruszovan, supra, 268 Cal. App.2d at p. 904.) Her present husband and attorney of record explicitly accepted service on her behalf. (Ibid.) No comparable attempt to serve or explicit acceptance appear in this record. In Ruszovan, the wife's attorney of record obtained a stipulation to continue the hearing on the order to show cause. (Ibid.) In this case, Ian G. Allen, who was not appellant's attorney of record, did not obtain a stipulation for a continuance and did not appear at the September 6 hearing. This record does not support a finding of Ruszovan waiver. Absent too are the circumstances that led the court, in In re Marriage of Askren, supra, 157 Cal. App.3d 205, 211, to hold that service on the former spouse was waived. In Askren, the husband's attorney of record, who had just instituted an attack on the final judgment of dissolution on behalf of his client, was served and appeared to defend against the wife's request for fees and costs. The court held that the husband waived any defect in the form of notice by appearing and defending against the fee request. (Ibid.) In this case, as we have noted, appellant did not appear. We are aware that counsel for a party seeking postdissolution relief might, in negotiating over continuance or settlement, mistakenly come to believe the opposing party intends to waive the requirements of section 4809. However, we are not free to fashion an exception to the statute when the unserved party has not appeared, and that party's counsel has neither stipulated to a continuance nor taken any other action unambiguously waiving compliance with section 4809. Respondent also contends that appellant had actual notice of the hearing and that his "technical noncompliance" with section 4809 should not, therefore, invalidate the orders. Dicta in Gortner v. Gortner (1976) 60 Cal. App.3d 996, 1001 [131 Cal. Rptr. 919], suggest that because the purpose of section 4809 is to provide the opposing party with notice of the proceedings, a technical failure to comply with the section would not invalidate the order if the party had actual notice. The court in In re Marriage of Roden (1987) 193 Cal. App.3d 939, 944 [238 Cal. Rptr. 687], expressed reservations about Gortner's broad suggestion. Gortner does not, the Roden court observed, indicate the content of the "`actual notice'" to which a party is entitled, nor does Gortner specify what type of failure to comply with section 4809 is so "`technical'" as not to invalidate an order. Moreover, Gortner relies on constitutional law decisions predating the enactment of former section 147. (Id. at p. 944; see Gortner v. Gortner, supra, 60 *1039 Cal. App.3d at p. 1001; Lewis v. Lewis (1957) 49 Cal.2d 389, 396 [317 P.2d 987]; Leverett v. Superior Court (1963) 222 Cal. App.2d 126, 134 [34 Cal. Rptr. 784].) We concur in the reservations expressed by the Roden court. Moreover, the record before us contains scant evidence that appellant had actual notice. The only proof respondent offers is his own declaration that appellant was "fully aware of the hearing at [sic] September 6, 1988 as I learned from my children prior to the hearing how much she wished to avoid being there." The declaration fails to establish that appellant knew of the date, time, and place of the hearing sufficiently in advance to appear or otherwise protect her interests. Although appellant does not offer contradictory evidence, respondent's nonspecific declaration does not persuade us to except this matter from the requirements of section 4809. Respondent asserts that Allen had an affirmative duty to advise Rinaldi before the scheduled hearing that he intended to rely on "technical noncompliance" with section 4809 as a defense to the motion. Respondent cites no authority recognizing such a duty, and our research discloses none. The terms of section 4809 are plain: no postdissolution order is valid unless any prior required notice is served on the party himself or herself; service on the party's attorney of record does not suffice. Section 4809 cannot be read as respondent urges. This case exemplifies the problem described in Roden: a party entreats us to recognize an exception to section 4809 that would "open the door to factual disputes over oral communications between counsel and often hostile parties." (In re Marriage of Roden, supra, 193 Cal. App.3d at p. 945.) To do so would be both unwise and outside our authority. (3) Respondent contends that even if respondent did not comply with section 4809 and appellant did not waive compliance, we must nevertheless affirm the orders because appellant failed to bring her motion to set them aside until after the time prescribed in Code of Civil Procedure section 473. That statute provides in relevant part as follows: "The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for such relief must... be made within a reasonable time, in no case exceeding six months, after such judgment, order or proceeding was taken...." Appellant contends that because respondent's noncompliance with section 4809 rendered the orders invalid, Code of Civil Procedure section 473 does not apply. We agree. Respondent's failure to serve appellant with notice of the motion is the equivalent of failure to serve summons and *1040 complaint, which renders a judgment void on its face and subject to collateral attack at any time. (See Nagel v. P & M Distributors, Inc. (1969) 273 Cal. App.2d 176, 180 [78 Cal. Rptr. 65].) DISPOSITION The order denying the motion of appellant Shirley M. Kreiss to set aside the orders terminating spousal support is reversed. On remand, appellant shall be entitled to an award of attorney's fees incurred in bringing this appeal to be determined by the trial court. Respondent's request for an award of attorney's fees incurred in this appeal is denied. Capaccioli, Acting P.J., and Premo, J., concurred. NOTES [1] Unless otherwise noted all further statutory references are to the Civil Code. [2] For clarity, we will refer to both the September 14 and the October 7 orders as the "order" or "orders" that are the subject of this appeal.

371 U.S. 186 (1962) AHOYIAN ET AL. v. MASSACHUSETTS TURNPIKE AUTHORITY ET AL. No. 473. Supreme Court of United States. Decided December 3, 1962. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. J. Fleet Cowden for appellants. Edward O. Proctor, Arthur E. Sutherland and Kevin Hern for appellees. PER CURIAM. The motion to affirm is granted and the judgment is affirmed.

42 Cal.App.2d 678 (1941) JULIA VICKERSON, Appellant, v. ALICIA WEHR, as Special Administratrix, etc., Respondent. Civ. No. 11471. California Court of Appeals. First Appellate District, Division One. January 29, 1941. Leo R. Friedman for Appellant. Clark & Heafey for Respondent. Knight, J. This is an appeal from an order granting respondent's motion for a change of venue. The question involved concerns the right of a party substituted as sole defendant to a change of place of trial upon the ground of residence. The action was filed in the Superior Court in and for the City and County of San Francisco by the appellant, Julia Vickerson, against A. Terkel, as administrator with the will annexed of the estate of Charles D. Wehr, deceased, on a rejected claim for money which appellant alleges she furnished and loaned to the decedent at various times during the two years preceding his death. The decedent was a resident of Alameda County, and his estate is pending settlement therein; but Terkel at all times mentioned in the complaint and at the time of the filing thereof was a resident of San Francisco; and summons was served on him therein on January 15, 1940. By written stipulation his time to appear in the action was extended to February 25, 1940; but prior to the expiration of the extended time and without having appeared in the action, to wit, on February 15, 1940, he resigned as such administrator and his letters were revoked; whereupon and on the same day the respondent, Alicia Wehr, widow of the decedent and a resident of Alameda County, was appointed special administratrix with full power of a general administrator. Thereafter and on February 21, 1940, pursuant to a motion made by her in that behalf and after notice to appellant, the court in which the action was pending made an order substituting respondent as sole defendant in the place and stead of Terkel; and two days later she filed notice of motion, supported by the necessary demand and affidavit, for change of venue to the county of Alameda. The grounds of the motion were: "That at the time of the commencement of this action defendant was, and since that time has continued to be and still is, a resident of the County of Alameda, State of California, and *680 that said Superior Court in and for the County of Alameda, State of California, is the proper court for the trial of the above entitled cause." The motion was contested by appellant, and after a hearing the same was granted. [1] In some states the venue of actions against executors and administrators is specially declared to be where it would have been necessary to sue the deceased, but in this state it has been definitely held, in conformity with the common law rule, that the proper county in which to institute an action on a rejected claim is in the county in which the executor or administrator resides, regardless of where the estate is pending settlement or where the decedent might have been sued (Thompson v. Wood, 115 Cal. 301 [47 P. 50], Chiapella v. County National Bank & Tr. Co., 217 Cal. 503 [19 PaCal.2d 983]), and section 395 of the Code of Civil Procedure declares in part that except as noted therein "and subject to the power of the court to transfer actions or proceedings as provided in this title [Title 4, Part 2, Code Civ. Proc.], the county in which the defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action." [2] It is appellant's contention that the wording of the foregoing code provision is plain, explicit, and unambiguous; and that since it is expressly declared therein that the county in which the defendant resides at the commencement of the action is the proper county for the trial of the action, the trial court's ruling granting the change clearly contravenes the mandate of the statute. Appellant concedes, however, that the statutory rule embodied in said section is not absolute, nor in all cases controlling as against a party substituted as sole defendant; that two of the well recognized exceptions thereto are where a party "is substituted involuntarily as sole defendant, or ... comes in as the real party in interest", and that under those circumstances he may apply for a change of venue (67 Cor. Jur., p. 140). The case of Howell v. Stetefeldt Furnace Co., 69 Cal. 153 [10 P. 390], has been cited by both sides as showing that such is the rule in this state. There is, however, a sharp disagreement between the parties as to whether the present case falls within either of the exceptions noted. Respondent argues that it is in all material respects similar to Howell v. Stetefeldt Furnace Co., supra, and that therefore the decision therein is here controlling. *681 A comparison of the cases demonstrates, however, that they are essentially different. In that case the furnace company, whose place of business was in San Francisco, was in possession of a certain sum of money which was claimed respectively by John Howell, a resident of Santa Clara County, and James Thompson, a resident of San Francisco; and Howell brought suit in Santa Clara County against the furnace company to recover the money. The furnace company made no defense, but pursuant to the provisions of section 386 of the Code of Civil Procedure and after notice to Howell and Thompson, paid the money into court, obtained an order substituting Thompson in its place as party defendant, and ceased to have any further connection with the action. Thereupon Thompson filed a demand for a change of venue to San Francisco, where he resided; and the motion was denied. He appealed, and the order was reversed, the ground of the reversal being that he was brought into the action in invitum under section 386; that he had not come in as a voluntary intervenor; that the appearance of the corporation was not his appearance, and that not until he became a party to the action did he have the opportunity nor was he entitled to move for a change of venue. In the present case respondent was not brought in as an interpleader under the provisions of said section 386, nor as the result of any move whatever on the part of the appellant. She came in voluntarily. At her request she was appointed special administratrix, and upon her motion she was substituted as sole defendant. Respondent points out that having been appointed special administratrix with full power of a general administrator, it was her legal duty to defend the action, and that if she had not obtained the order of substitution it would have been necessary for appellent to have done so, before proceeding with the case. Conceding that to be true, the undisputed facts show, nevertheless, that she came into the action voluntarily. Whether a different conclusion would be reached if the order of substitution had been obtained by appellant rather than by respondent involves a situation not here present; consequently whatever might be said in this regard would amount to nothing more than dictum. Nor can it be successfully maintained that respondent came into the case as the real party in interest, for the reason that the action does not involve any personal liability *682 of the party sued. The relief is sought against the decedent's estate; and any judgment which appellant might obtain as the result of the action can go no further than to direct that the claim be paid in the course of administration, out of the assets of the estate (Prob. Code, sec. 730); no judgment can be rendered against the representative in personam (11B Cal.Jur., p. 342). It follows, therefore, that since from the beginning the estate and not the legal representative has been the real party in interest, no new or different interest was brought into the case by respondent's substitution. [3] In further support of the order of transfer respondent relies on certain language used in deciding the cases of McClung v. Watt, 190 Cal. 155 [211 P. 17], Kallen v. Serretto, 126 Cal.App. 548 [14 PaCal.2d 917], and Ah Fong v. Sternes, 79 Cal. 30 [21 P. 381], to the effect that the right of a moving party to a change of venue to the place of his residence is to be determined by the condition of things existing at the time the moving party first appeared in the action, as those conditions are revealed by the pleadings at the time the demand for change of venue is made. In this connection respondent contends that upon the revocation of Terkel's letters of administration he ceased to be a party to the action as absolutely as if he had died (More v. More, 127 Cal. 460 [59 P. 823]), and that since his relation to the case terminated and she was substituted before he appeared in the case, she was entitled as a matter of right to have the place of trial of the action removed to the county of her residence. An examination of the three cases respondent relies upon discloses, however, that in none of them was the court, as here, dealing with the situation of a substituted defendant, and it is apparent that the language there employed has no application to such a case. To be more specific, in McClung v. Watt, supra, the action was filed in San Francisco against a corporate defendant and the appellant Watt. The corporation maintained its place of business in San Francisco; but Watt was a resident of Sacramento, and he moved for a change of place of trial to Sacramento County on two grounds: that he was a resident of that county, and that the corporation was joined as a party defendant solely for the purpose of having the action tried in San Francisco. The motion was denied, and in affirming the order the court stated that a motion for a *683 change of place of trial to the county of the party's residence must be made by the moving party and determined by the court in advance of any other judicial action in the case; hence that the right to a change of place of trial to the residence of the defendant must necessarily be determined by the status of the parties joined as defendants in the action as revealed by the pleadings existing at the time the party claiming the right first appeared in the action. The court then went on to hold that the complaint therein, in apparent good faith, attempted to state a cause of action against the parties so joined as defendants, and that therefore the moving defendant had not the right to have the place of trial changed to the county of his residence. Obviously, in so holding there was no intention to deviate from the statutory rule embodied in said section 395, because, referring especially thereto the court said: "Section 395 of the Code of Civil Procedure, under which defendant here claims the right to have the action transferred, provides that 'the action must be tried in the county in which the defendants, or some of them reside'. If under this section an action is commenced in the county of the residence of one of the defendants, another defendant resident of a different county does not have the right to have the action changed to the county of his residence, and this is so even though it may happen that all of the defendants join in the demand." In the second case, Kallen v. Serretto, supra, an action for damages growing out of an automobile collision was instituted in San Francisco wherein the appellants Serretto and two fictitious persons were joined as parties defendant. The accident happened in San Mateo County, and the Serrettos were residents thereof. They filed a demand and motion for change of venue to that county, and thereafter the plaintiff was permitted to file an amended complaint wherein she changed the allegations relating to the operation of defendants' car and in an affidavit filed in opposition to appellants' motion averred that "First Doe" was one Irani, a resident of San Francisco. Apparently, so the decision states, Irani was never substituted as a party defendant. The trial court denied appellants' motion, and on appeal the order was reversed, mainly on the authority of McClung v. Watt, supra, the court holding in conformity therewith that the right of a moving party to a change depended upon the conditions existing at the time the demand *684 was made, as those conditions were then revealed by the pleadings. In the third case, Ah Fong v. Sternes, supra, an action for damages was filed in Nevada County against a resident of Sutter County, who moved for a change of venue on the ground of residence, and the motion was denied. On appeal the court pointed out that if the action were to be regarded as one for false imprisonment, appellant was entitled to a change of venue; and that if it were to be regarded as one for the recovery of a penalty under section 1505 of the Penal Code, for having disobeyed a writ of habeas corpus, appellant was not entitled to a change of venue. With respect to that matter the court said that it believed the complaint stated a good cause of action for false imprisonment, and that it doubted whether it stated a cause of action for a penalty under section 1505 of the Penal Code. It was held, however, that the plaintiff in thus framing the complaint with the double aspect could not deprive the defendant of his right to have the cause tried in the county of his residence; and furthermore that for the reasons set forth in the opinion the result would be the same even though the complaint be regarded as stating two causes of action upon one of which the defendant was entitled to a change of venue, and not upon the other. It will be seen, therefore, that in each of the foregoing cases the factual situation was entirely different from the one here presented, and that the language there used has no application to a case involving the status of a substituted defendant. Finally, in support of the order appealed from, respondent cites and quotes from the cases of Smith v. Smith, 88 Cal. 572 [26 P. 356], and Brown v. Happy Valley Fruit Growers, Inc., 206 Cal. 515 [274 P. 977], to the effect that the general spirit and policy of said section 395 is to give a defendant the right of having all personal actions tried in the county of his residence, and that such right has always been safeguarded by a long line of judicial decisions. The soundness of that doctrine is, of course, not questioned; and beyond doubt it is applicable in cases such as the two cited, wherein a personal judgment was sought against a sole defendant who had been sued in a county other than the one in which he resided. Here it is conceded that the action was properly brought in the county in which the sole defendant resided at the time of the commencement of the action; therefore, by virtue of the express provisions of said *685 section 395, such is the proper county for the trial thereof, subject, of course, to the power of the court to transfer the same as provided in title 4, part 2, of said code. It follows that since no legal ground has been shown upon which the order appealed from may be sustained, it must be reversed; and it is so ordered. Peters, P. J., and Ward, J., concurred.

J lfn tbe Wniteb ~tates Qeourt of jfeberal Qelaitns No. 17-541C FILED (Filed: September 14, 2017) SEP 1 4 2017 ************************************* U.S . COURT OF FEDERAL CLAIMS * BARTN. VELARDE, * * Plaintiff, * * v. * * THE UNITED STATES, * * Defendant. * * ************************************* OPINION AND ORDER Bart N. Velarde, a pro se plaintiff, alleges that the United States has committed violations of law as a result of its conduct in the Philippines throughout its history. The Government has filed a motion to dismiss for lack of subject matter jurisdiction. For reasons explained below, the Court GRANTS the Government's motion to dismiss Mr. Velarde's claims. Background Mr. Velarde is a U.S. citizen and a resident of the State of Michigan. Compl. at 2. He alleges that the United States has committed three violations of law resulting from its involvement in the Philippine Revolutionary War, the Spanish-American War and the American-Filipino War: "[m]urder, [g]enocide [and] [c]rimes [a]gainst [h]umanity." Id. at 3. Mr. Velarde further alleges that the United States is responsible for the deaths of 2.5 million innocent Filipino men, women and children through the use of armed forces and that from 1899 to the present, the United States has covered up and perpetuated these alleged violations by adopting a policy of "neocolonialism." Id. at 4-5, 9. On April 17, 2017, Mr. Velarde filed a complaint before this Court against current U.S . President Donald J. Trump, seeking $1 million in compensatory damages and $10 million in punitive damages from the Government for the alleged violations described above. Id. at 11. The Government filed a Rule 12(b)(l) motion to dismiss on June 9, 20 17. 7017 1450 ODDO 13 46 4162 Gov.'s Mot. at 1. The parties completed briefing on the motion to dismiss on August 28, 2017 and the Court has deemed oral argument unnecessary. Discussion The Tucker Act ordinarily is the focus of subject matter jurisdiction in this Court, and states: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(I). The Tucker Act itself "does not create a cause of action." RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998). Thus, a plaintiff must identify a "separate source of substantive law that creates the right to money damages" in order to invoke the Court's jurisdiction over a claim. Greenlee County, Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir. 2007) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)). Failure to establish jurisdiction under the Tucker Act requires the Court to dismiss under Rule 12(b)(l). Outlaw v. United States, 116 Fed. Cl. 656, 658 (2014). When deciding a Rule 12(b)(l) motion to dismiss, a court must assume all the undisputed facts in the complaint are true and draw reasonable inferences in the non- movant' s favor. Erikson v. Pardus, 551 U.S. 89, 91 (2007). Courts hold pleadings made by pro se plaintiffs to a less stringent standard and liberally construe language in the plaintiffs favor. Erickson, 551 U.S. at 94; Haines v. Kerner, 404 U.S. 519, 520 (1972). However, Mr. Velarde's claims do not survive the 12(b)(I) motion to dismiss. This Court only has jurisdiction to entertain claims against the United States. 28 U.S.C. § 149 l(a)(I ); United States v. Sherwood, 312 U.S. 584, 588 (1941); Moore v. Public Defenders Office, 76 Fed. Cl. 617, 620 (2007) ("When a plaintiffs complaint names private parties, or local, county, or state agencies, rather than federal agencies, this court has no jurisdiction .... "). Mr. Velarde has not named any federal agency or the United States as a defendant; rather, he has named the current President of the United States, Donald J. Trump, as the sole defendant. Therefore, this Court does not have jurisdiction over Mr. Velarde's claims. Additionally, Mr. Velarde fails to identify any separate source of substantive law creating a right to monetary damages. In his complaint, the only source oflaw Mr. Velarde 2 refers to is A1iicle II, Section 4 of the U.S. Constitution, which states, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. art. II, § 4. However, this Court does not have jurisdiction over invocations of Article II, Section 4 of the Constitution because monetary damages are not available under this provision. Delmore v. United States, No. l l-556C, 2011 WL 5120484, at *1 (Fed. Cl. Oct. 30, 2011 ). Further, in his response to the Government's motion to dismiss, Mr. Velarde points to "the new [e]conomic definition of Modern Politics" to establish this Cami's jurisdiction over his claims. Pl. 's Resp. at 6. However, this is not a valid source of substantive law creating a right to monetary damages. Therefore, this Court does not have jurisdiction over Mr. Velarde's claims. Conclusion For the reasons stated above, the Government's motion to dismiss is GRANTED. The Clerk of the Court shall enter judgment accordingly. No costs. 1a IT IS SO ORDERED. wWW"~ c_ THOMAS C. WHEELER Judge 3 

159 Pa. Commonwealth Ct. 72 (1993) 632 A.2d 989 BELTRAMI ENTERPRISES, INC., Booty's Mining Company, Inc. and Beltrami Brothers Real Estate, a Pennsylvania Limited Partnership, Appellants, v. COMMONWEALTH of Pennsylvania, DEPARTMENT of ENVIRONMENTAL RESOURCES. Commonwealth Court of Pennsylvania. Argued September 15, 1993. Decided October 13, 1993. *74 Lawrence M. Klemow, for appellants. Janice J. Repka, Asst. Counsel, for appellee. *75 Before FRIEDMAN and KELLEY, JJ., and NARICK, Senior Judge. NARICK, Senior Judge. Beltrami Enterprises, Inc., Booty's Mining Company, Inc. and Beltrami Brothers Real Estate (collectively, Appellants) appeal from the order of the Court of Common Pleas of Schuylkill County that sustained the Department of Environmental Resources' (DER) objections to the petition for the appointment of viewers filed by Appellants. On December 17, 1974, Booty's Mining acquired 600 acres in Kline Township, Schuylkill County. This purchase included the 340-acre Kelayres Strip Mine, (abandoned mine). The abandoned mine had spoil banks consisting of piles of culm, silt, rock, coal and other materials adjacent to the highwall. A few years later, Booty's Mining merged with Beltrami Enterprises and Beltrami Brothers Real Estate, entering into a written lease agreement for the purpose of operating a stone quarry on the property adjacent to the abandoned mine. Appellants would use the surface rock from the abandoned mine's spoil bank in the operation of the stone quarry. Appellants applied to the DER for a non-coal surface mining operator's license and permit which the DER granted in 1986. Appellants repeatedly renewed the license application; however, the quarry never began operation. On December 23, 1988, the DER's Deputy Secretary for Resources Management informed Appellants that the DER intended to enter the land on which the abandoned mine was located and reclaim it pursuant to Section 16(a)(1) of the Land and Water Conservation and Reclamation Act, Act of January 19, 1968, P.L. (1967) 996, as amended, 32 P.S. § 5116(a)(1), Section 407 of the Act of August 3, 1977 (popularly known as the Surface Mining Control and Reclamation Act of 1977), 30 U.S.C. § 1237, and Section 1917-A of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by the Act of December 3, 1970, P.L. 834, 71 P.S. § 510-17. *76 Appellants resisted the DER's proposed reclamation, filing a timely notice of appeal with the Environmental Hearing Board (EHB). The primary thrust of the appeal was that the DER's action was an unlawful taking in that it did not provide Appellants compensation for the surface rock DER planned to use to fill the abandoned mine. Appellants asserted that because it had planned to quarry the rock that it was entitled to compensation. In 1989, the DER commenced reclamation using the surface rock to fill the abandoned strip mine.[1] On May 15, 1992, Appellants filed a petition for appointment of a board of viewers under Section 502(e) of the Eminent Domain Code (Eminent Domain Code), Act of June 22, 1964, P.L. 84, 26 P.S. § 1-502, with the trial court. On the same date Appellants filed a petition to stay its action before the EHB until the trial court ruled on its claim for compensation under the Eminent Domain Code. The EHB granted the stay; however, the DER opposed the petition for appointment of viewers contending that jurisdiction was with the EHB. Ruling on Appellants' petition, the trial court made two inconsistent holdings: 1) that the DER's action was not an eminent domain taking but an exercise of the Commonwealth's police power; and 2) that Appellants' request for appointment of viewers was not ripe because Appellants had failed to exhaust its administrative remedies before the EHB, adding that the "eminent domain action [was] not cognizable until a determination had been made by the Environmental Hearing Board." (55a). On appeal, Appellants argue that the trial court erred in: 1) determining without a factual basis that the DER's actions constituted an exercise of the police power; 2) determining that the EHB had primary jurisdiction; and 3) treating DER's response to the petition for appointment of viewers as preliminary objections. *77 Appellants first argue that the trial court erred in concluding that the DER's actions constituted an exercise of police power without a factual basis. Appellants had merely filed a petition for an appointment of viewers. In eminent domain proceedings, a court confronted with a petition for an appointment of viewers alleging a de facto taking which is objected to, must first decide as a matter of law, whether the averments of the petition, taken as true, are sufficient to state a cause of action. If the averments might establish a de facto taking, the trial court must then take evidence by deposition or otherwise, in order that a judicial determination can be made. Appeal of Krauss, 151 Pa.Commonwealth Ct. 619, 618 A.2d 1070 (1992). The trial court here did not take any evidence on the takings issue but still determined, on the merits, that the Commonwealth had exercised its police power. We hold that the trial court improperly concluded, without a factual basis, that the DER's actions were not a taking but fell under the Commonwealth's police power. Therefore, on this issue, we reverse. Appellants next argue that the trial court erred in determining that the EHB had primary jurisdiction. The Doctrine of Primary Jurisdiction allows a court to defer judicial action until an administrative agency has passed upon such aspects of a proceeding as may lie with the agency's competence and expertise. Jackson v. Centennial School District, 509 Pa. 101, 501 A.2d 218 (1985). The purpose of the doctrine is to create "a workable relationship between the courts and administrative agencies wherein, in appropriate circumstances, the courts can have the benefit of the agency's views on issues within the agency's competence." Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 131-32, 420 A.2d 371, 376 (1980). In Pennsylvania, as in other jurisdictions, this reconciliation between the administrative agencies and the judiciary is accomplished by staying the judicial action until the agency has passed on those issues that are within its competence and are collateral to issues before the court. E.L.G. Enterprises Corp. v. Gulf Oil Co., 291 Pa.Superior Ct. 414, 435 A.2d 1295 (1981). *78 Under the doctrine of primary jurisdiction, in determining whether or not a court should refrain from exercising its jurisdiction until after an administrative agency has determined some question or aspect of the proceeding, the Supreme Court in Elkin indicated that a court should consider: 1) the benefits to be gained by relying upon the agency's special experience and expertise in a complex area; 2) the statutory purpose in creating the agency; and 3) the fundamental administrative policy. Elkin. With this in mind, we shall turn to the language of the Eminent Domain Code. Section 303 of the Eminent Domain Code, 26 P.S. § 1-303, provides the "exclusive" procedure to govern condemnations of property and the assessments of damages. Under Section 401 of the Eminent Domain Code, 26 P.S. § 1-401, jurisdiction for all condemnation proceedings lies in the court of common pleas for the county in which the property is located. The Eminent Domain Code does not apply only to those instances where the property has been formally condemned. Section 502(e) of the Eminent Domain Code provides that a condemnee may petition for an appointment of viewers if there has been a "compensable injury" and "no declaration of taking therefore has been filed." We consider such a taking a "de facto taking." However, where an entity has power of eminent domain, but the alleged taking does not result, those injured must seek their recourse by some other vehicle other than the Eminent Domain Code. Persons who allege that their property has been "taken" by changes in zoning regulations have no recourse under the Eminent Domain Code, despite the fact that townships[2] as well as counties and boroughs[3] have the power *79 of eminent domain. Where property owners assert, for example, that flood plan ordinances restricting the use of their property constitutes a taking, we have held that their only recourse lies in the Municipalities Planning Code. See Merlin v. Commonwealth, 72 Pa.Commonwealth Ct. 45, 455 A.2d 789 (1983); Gaebel v. Thornbury Township, 8 Pa.Commonwealth Ct. 399, 303 A.2d 57 (1973). Section 17 of the Coal Refuse Disposal Control Act, Act of September 24, 1968, P.L. 1040, as amended, 52 P.S. § 30.101, gives the DER the power of eminent domain. Section 4 of the Environmental Hearing Board Act, Act of July 13, 1988, P.L. 530, 35 P.S. § 7514, specifically empowers the EHB to adjudicate disputes arising from orders issued by the DER. The EHB has the power to resolve both the procedural and substantive validity of actions by the DER. Charleston Township Municipal Authority v. Department of Environmental Resources, 29 Pa.Commonwealth Ct. 127, 370 A.2d 758 (1977). Thus, the sole question here is whether or not the Eminent Domain Code or the EHB can determine whether the DER's action was a taking, requiring compensation. In referring to the argument that the Eminent Domain Code deprives the EHB of jurisdiction to consider taking issues, the EHB in Mock v. Department of Environmental Resources, 1992 E.H.B. 537, affd, 154 Pa.Commonwealth Ct. 380, 623 A.2d 940 (1993), wrote: This argument is persuasive on its face, but ignores appellate court decisions construing the Eminent Domain Code. The seminal case, Gaebel v. Thornbury Township, [8 Pa.Commonwealth Ct. 399, 303 A.2d 57 (1973)], held that a claim for de facto taking cannot be filed under the Eminent Domain Code where the taking power involves the exercise of the police power. The property owner must first challenge the constitutionality of that exercise by the means provided by the Legislature. In the case of a zoning ordinance, as was involved there, the challenge must be *80 made through procedures contained in the Municipalities Planning Code. * * * * * * Any claim that the exercise of that power by the DER amounts to an unconstitutional taking of property must be pursued through the procedures contained in the statute — appeal to this board: 32 P.S. § 693.24(a). We clearly have the jurisdiction to consider it. Also in Machipongo Land and Coal Co. v. Department of Environmental Resources, 155 Pa.Commonwealth Ct. 72, 624 A.2d 742 (1993), we held that a petition for review of the designation by the Environmental Quality Board of certain lands as unsuitable for mining under 25 Pa.Code § 86.130(b)(14), was properly transferred to the EHB under the Doctrine of Primary Jurisdiction. In a case concerning two acts with potential overlapping jurisdiction, Department of Environmental Resources v. Burr, 125 Pa.Commonwealth Ct. 475, 557 A.2d 462 (1989), the issue was whether the EHB or the Board of Claims had jurisdiction where the Coal and Clay Mine Subsidence Insurance Board, a division of the DER, denied claims on mine subsidence insurance policies issued under subscription to the Mine Subsidence Fund Act.[4] Section 3 of the Board of Claims Act, Act of May 20, 1937, P.L. 728, as amended, 72 P.S. §§ 4651-4, provides, in pertinent part, that "[t]he Board of Claims shall have exclusive jurisdiction to hear and determine all claims against the Commonwealth arising from contracts hereafter entered into with the Commonwealth. . . ." Section 24 of the Coal and Clay Mine Subsidence Insurance Fund Act, Act of August 23, 1961, P.L. 1068, as amended, 52 P.S. § 3224.1, provides that "[a]ny party aggrieved by an action of the [Subsidence Board] hereunder shall have the right to appeal to the Environmental Hearing Board." Despite the exclusivity language of the Board of Claims Act, we concluded that the EHB did have jurisdiction to hear the appeal from the order of the DER. *81 The jurisdictional provisions of the Environmental Hearing Board Act and the Eminent Domain Code can be reconciled so as to give both effect in this case. The Environmental Hearing Board Act gives the EHB jurisdiction over appeals which, inter alia, raise constitutional challenges to an order of the DER based upon takings-related analysis and empowers the EHB to adjudicate the lawfulness of those orders and to set them aside if they amount to unconstitutional takings. The jurisdiction of the courts of common pleas under the Eminent Domain Code might then be invoked in order to determine the amount of damages, if any, that might have occurred as a result of the taking while it was ongoing. It is irrelevant that the EHB does not have the power to award damages. Whether a court has been empowered to hear or adjudicate a controversy and whether a court has the power to grant the particular relief sought in a case are separate and distinct questions. [E]ven though a plaintiff have no standing to bring his action, even though his complaint be demurrable, even though he fail to establish its allegations, even though the court should finally conclude that the relief he seeks should not be granted, not any or all of these circumstances would enter into, much less determine, the question whether the court had jurisdiction of the litigation. Sperry & Hutchinson Co. v. O'Connor, 488 Pa. 340, 345, 412 A.2d 539, 541 (1980) (quoting Studio Theaters, Inc. v. City of Washington, 418 Pa. 73, 77, 209 A.2d 802, 804 (1965)). That fact that the EHB may ultimately decide that the Appellants here may not be entitled to redress or that the EHB may not be able to afford the relief sought is of no moment to the determination of jurisdiction. Pennsylvania Coal Co. v. Luzerne County, 390 Pa. 143, 134 A.2d 657 (1957). Therefore, we hold that the trial court properly determined that the EHB had exclusive jurisdiction to determine *82 whether or not a taking had occurred.[5] We reverse the trial court in concluding without a factual basis that the DER's actions were not a taking but fell under the Commonwealth's police power. Accordingly, we affirm in part and reverse in part. ORDER AND NOW, this 13th day of October, 1993, the order of the Court of Common Pleas of Schuylkill County in the above-captioned matter is affirmed in part and reversed in part. FRIEDMAN, J., concurs in result only. NOTES [1] Appellants have alleged that some of the surface rock the DER planned to use in its reclamation was located on its adjacent property and not on the abandoned mine site. However, this fact is not clear from the record before us. [2] See e.g. Sections 1901 and 3001 of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 56901, 58001; and Sections 1001-1053 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 66001-66053. [3] See e.g., Section 2305(a) of the County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 2305(a); Section 2505(a) of the Second Class County Code, Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 5505(a); and Section 1501 of the Borough Code, Act of February 1, 1966, P.L. 1656, as amended, 53 P.S. § 46501. [4] Act of August 23, 1961, P.L. 1068, as amended, 52 P.S. §§ 3201-3226. [5] Appellants also argue that the trial court erred in treating DER's opposition to the petition for appointment of board of viewers and request for stay as preliminary objections. Appellants argue that DER failed to raise any legal issues upon which preliminary objections could be granted under the Eminent Domain Code. The Eminent Domain Code provides that preliminary objections shall be the exclusive method of making certain challenges which the DER did not make. However, because the trial court determined that the EHB had primary jurisdiction and that Appellants did not exhaust their administrative remedy, the trial court merely relinquished jurisdiction. Therefore, we hold that the trial court's ruling on DER's opposition to the petition for appointment of viewers was proper.

546 F.Supp. 646 (1982) UNITED STATES of America, Plaintiff, v. Benjamin JAMIL, Defendant. No. 81 CR 687(S). United States District Court, E. D. New York. July 1, 1982. *647 *648 *649 Edward R. Korman, U. S. Atty., E.D.N.Y. by David V. Kirby, Asst. U. S. Atty., Brooklyn, N.Y., for plaintiff. Barry Ivan Slotnick, New York City, for defendant. MEMORANDUM AND ORDER WEINSTEIN, Chief Judge: Defendant is charged with the violation of statutes prohibiting the sale of electronic eavesdropping devices in this country and the export without a license of equipment with potential military use. 18 U.S.C. §§ 2512(1)(a), (b), (c); 22 U.S.C. §§ 2778(b)(2), (c). He moves to dismiss on the ground that the government violated his Sixth Amendment rights by recording a conversation among himself, his trial attorney and an informer. The latter had been equipped by government investigators with a Nagra recorder after the United States Attorney and the investigators became aware that the attorney had been retained in the matter. For the reasons stated below, the motion to dismiss on Sixth Amendment grounds must be denied. The court has considered less drastic relief warranted by ethical principles, power to supervise counsel, authority to redact and the balancing principles of Rule 403 of the Federal Rules of Evidence. For the reasons indicated below, the recording will not be admitted at the trial on the direct case of the government. FACTS A pretrial hearing established the following facts. An export shipment of defendant's merchandise had been seized at the airport by Customs. Customs agents had executed a search warrant for his place of business in the presence of both the defendant and his attorney retained for the matter. Defendant was a target of a pending grand jury investigation; an indictment was likely. There had been meetings between defense counsel and the Assistant United States Attorney concerning the probable prosecution. Government Customs agents who conducted the search were explicitly told by counsel not to speak to defendant without the attorney's permission. The Assistant United States Attorney did not have to be told — he was aware that to do so under the circumstances would be to violate plain ethical standards as well as policy of the United States Attorney's office for this district. (See Record June 7, 1982 at pp. 31, 83.) Fortuitously, some two weeks after the search of defendant's offices, the Customs agents on the case found themselves with a willing informer, one of defendant's customers, who volunteered to tape record a planned business meeting with defendant. The informer's action was in part self-protective, for he was concerned that defendant, *650 a purveyor of bugging and anti-bugging devices, would be recording the conference. This fear was not unfounded since the defendant was during this period arranging to record the conversation of a chief-witness against him at what that witness thought was a friendly reunion with a former fellow-worker. When the Customs officers outfitted the informer with a taping device he became an agent of the government for the purpose of recording the meeting. Suitably instructed and encouraged by these law enforcement officials the informer and his son had the meeting as planned — with one exception: defendant appeared with his attorney. As a result, both the attorney's and the defendant's voices as well as those of the informer and his son were captured on the tape. The transcript reveals a trilingual conversation — Arabic, French and English — among businessmen and the attorney of one of them with respect to future and past deals for electronic equipment, letters of credit, the need for export licenses and delays in shipments. Whenever the informer seeks to direct the discussion towards defendant's material already seized by Customs, or to put on the record defendant's prior knowledge about the need for export licenses, he is counselled by his attorney not to answer. Typical is the following: John Sayegh: Why the merchandise was seized why why did they do that? Ben Jamil [Defendant]: I can't talk about that. John Sayegh: (Arabic). Joe Sayegh: (Arabic). Barry Slotnick [Attorney for Defendant]: On advice of his attorney because this litigation going back and forth I don't want him to discuss it. Joe Sayegh: (French) Barry Slotnick: Ah the letter of credit expires October 31, 1979. Joe Sayegh: (French). John Sayegh: This is for the a second. Joe Sayegh: (Arabic). .... Ben Jamil: You said transit Jedda, I said in order for me to get a export license I need a final destination. He said I can't give you a final destination then I won't be John Sayegh: To Beruit destination Ben Jamil: You never said that, you never said that Joe Sayegh: To Beruit (Arabic), Ben Jamil: You decide. Joe Sayegh: To Beruit from shipment to transit Jedda to Beruit. Barry Slotnick: Can I do the following let me make a suggestion you obviously want the merchandise to Beruit I have to find out what proper and appropriate licenses that Mr. Jamil should submit and he'll do it legally. He is not going to do anything illegal that's why he wouldn't ship it in the first place. Now if you want this merchandise Mr. Jamil will check through my office to find out what licenses are necessary. Joe Sayegh: No problem. Barry Slotnick: It has got to be done legally. Joe Sayegh: (Arabic). John Sayegh: A he wants to get this done. Joe Sayegh: Inaudible. John Sayegh: As much as you can. Ben Jamil: Had he followed my advice 4 weeks ago he would have it because the export license only take 3 to 4 weeks we told this to Bastos he said no I can't wait three or four weeks I need it right away. John Sayegh: (Arabic) Joe Sayegh: No no (Arabic) John Sayegh: He told you that he would stay ten days Joe Sayegh: Ten days ten days John Sayegh: For the license if you need it, but you but you said no it can be shipped. Joe Sayegh: Arabic Ben Jamil: I don't remember, I don't remember you saying 10 days I remember you said I have to have it this weekend. John Sayegh: Okay whats the black guy why did he come to the office and *651 Barry Slotnick: Let me stop you John now I have not to stop you I am his lawyer I don't want you questioning Ben (inaudible). The United States Attorney was not privy to the electronic arrangements attending the investigation. But he is eager to use the fruits. Defendant, having had his anti-bugging net breached, and surprised that the government's sense of sportsmanship and trust among friends was no higher than his own, seeks protection from the law. LAW I. Sixth Amendment Defendant's contention that the indictment must be dismissed because his Sixth Amendment rights were violated is not supported by current federal caselaw. His Sixth Amendment right to counsel was not applicable. He was not in custody. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982). No adversarial proceedings had been commenced against him. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The fact that he had become the subject of a grand jury investigation is insufficient. United States v. Vasquez, supra. There was no impermissible intrusion of the government's ear into the privacy of the attorney-client relationship that might have revealed privileged information placing a Sixth Amendment taint on the entire prosecution. Cf. United States v. Levy, 577 F.2d 200 (3d Cir. 1978) (privy to defense strategy); United States v. Rispo, 460 F.2d 965, 977 (3d Cir. 1972) (per se exclusionary rule); United States v. Lusterino, 450 F.2d 572 (2d Cir. 1971) (privy to defense strategy); Caldwell v. United States, 205 F.2d 879 (D.C.Cir.1953) (government informer also defense assistant gained access to defense planning), cert. denied, 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1261 (1955); Coplon v. United States, 191 F.2d 749, 757 (2d Cir. 1951) ("private consultation" a requirement of "effective aid"), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952); United States v. Orman, 417 F.Supp. 1126 (D.Colo.1976) (intrusion itself without showing of prejudice suffices). The presence of a third party at what purported to be a business conference precludes the conclusion that what was said constituted a privileged communication. United States v. Melvin, 650 F.2d 641, 645-46 (5th Cir. Unit B. 1981); United States v. Gartner, 518 F.2d 633, 636-37 (2d Cir.), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975). II. Ethical Limitations A. Communication with Opposing Counsel's Client. Canon 7 and Disciplinary Rule 7-104(A)(1) of the ABA Code of Professional Responsibility prohibit an attorney from communicating with a person of adverse interest who is represented by counsel. The rule is a modern version of Hoffman's Resolution XLIII which had been followed from time immemorial by the Anglo-American bar, that "I will never enter any conversation with my opponent's client relative to his claim or defense except with the consent and in the presence of his counsel." D. Hoffman, A Course of Legal Study II, at 751 (2d ed. 1836). The principle as it now appears in DR 7-104(A)(1) forbids a lawyer during the course of his representation of a client to: communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter, unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. The current American Bar Association proposed revision of the Code of Ethics retains the principle virtually unchanged. See ABA Commission on Evaluation of Professional Standards, Final Draft of Model Rules of Professional Conduct, Proposed Rule 4.2 with comments and notes (Oct. 1981). *652 This salutary rule is fundamental to the effective functioning of the legal profession. There could be no reliable attorney-client relationship without an ethical shield against improper approaches to opposing counsel's client. ABA Comm. on Professional Ethics, Opinions, No. 108 (1934). The ethical prohibition protects an adverse party from the imbalance of skill and knowledge between laymen and lawyers. Massiah v. United States, 377 U.S. 201, 211, 84 S.Ct. 1199, 1205, 12 L.Ed.2d 246 (1964) (dissent); Kurlantzik, The Prohibition on Communication with an Adverse Party, 51 Conn.B.J. 136, 138-45 (1977). So vital is this standard to ethical practice that an attorney must guard against even an inadvertent or negligent bypass of opposing counsel. American Bar Foundation, Annotated Code of Professional Responsibility, Communicating With One of Adverse Interest, EC 7-18 and DR 7-104 Comment, 331, 332-33 (1979). B. Applicability to Government Prosecutors. As late as the nineteen-fifties there were apparently no reported court decisions and only two ethics opinions dealing with the applicability of Canon 7 (then Canon 9) to a criminal case. See Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963); Ricks v. United States, 334 F.2d 964 (D.C.Cir.1964); Mathies v. United States, 374 F.2d 312 (D.C. Cir.1967); ABA, Opinions of the Comm. on Professional Ethics and Grievances, Decision 249, at 640 (1957); ABA Comm. on Professional Ethics, Opinions, No. 150 (1936). Cf. H. Drinker, Legal Ethics 201-03 (1953) (citing civil examples only). See generally Broeder, "Wong Sun v. United States: A Study in Faith and Hope," 42 Neb.L.Rev. 483, 603 (1963); Note, "Criminal Law & Procedure, Right to Counsel, In-Custody Interrogation — Coughlan v. United States," 20 Hastings L.J. 958, 962 n.33 (1969). Now, however, there can be no doubt that the Code controls lawyers' behavior in both civil and criminal matters. See, e.g., DR 7-103 (duties of public prosecutor); DR 7-107(A), (B) (trial publicity); EC 7-13 (higher duties of prosecutor); EC 7-14 (same). There is unanimous and fully documented authority for the proposition that prosecutors are no less subject to the prohibition against communication with a represented person than are members of the private bar. See United States v. Thomas, 474 F.2d 110, 112 (10th Cir.) (accused; statement taken by agent after appointment of counsel; rule of ethics applies and statement "may not be offered"), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); United States v. Springer, 460 F.2d 1344, 1354 (7th Cir.) (ethical code applicable "to both civil and criminal [cases as] .. part of supervisory power"), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); Coughlan v. United States, 391 F.2d 371, 376 (9th Cir.) (dissent), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); People v. Green, 405 Mich. 273, 274 N.W.2d 448, 452 (1979) (dissent); State v. Yatman, 320 So.2d 401, 403 (Fla.Dist.Ct.App.1975) (knowing communication constitutes "grossest form of unethical conduct" by prosecuting attorney); People v. Skinner, 52 N.Y.2d 24, 30, 436 N.Y. S.2d 207, 209, 417 N.E.2d 501 (1980) ("We would be hard pressed logically to proscribe such conduct in the civil context yet blithely overlook it in the criminal sphere."); People v. Hobson, 39 N.Y.2d 479, 485, 384 N.Y.S.2d 419, 423, 348 N.E.2d 894, 898 (1976) ("grossly incongruous ... to blink its violation in a criminal matter"); ABA, Opinions of the Comm. on Professional Ethics and Grievances, Decision 249, at 640 (1957); ABA Comm. on Professional Ethics, Informal Opinions, No. 1373 (1976); ABA Standards, The Prosecution Function § 1.1(d) (1971) ("It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined in codes and canons of the legal profession ...."); American Bar Foundation, Annotated Code of Professional Responsibility, Communicating With One of Adverse Interest, EC 7-18 and DR 7-104 Comment, 331, 339 (1979). Exempting lawyers in the public service from the rules of ethical conduct would put the legal professional in the "indefensible and intolerable position," Broeder, *653 "Wong Sun v. United States: A Study in Faith and Hope," 42 Neb.L.Rev. 483, 602 (1963), of demanding greater propriety in money matters while abiding lesser rectitude in criminal matters where life and liberty are at stake and the policy considerations are "stronger." ABA Comm. on Professional Ethics, Informal Opinions, No. 1373 (1976). Public prosecutors are not above the law of the profession any more than they are above the law of the land. Cf. Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). "The judiciary as well as the public is dependent upon professional ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice," whether civil or criminal. Middlesex County Ethics Committee v. Garden State Bar Association, ___ U.S. ___, ___, 102 S.Ct. 2515, 2523, 73 L.Ed.2d 116 (1982). C. Client is a "Represented Party" Before Criminal Proceeding Commences. A person who retains counsel to protect him when he is a target of a grand jury investigation is, within the definition of DR 7-104(A)(1), a "represented party." Any more exclusive definition of a party as a person or entity by or against whom a proceeding has been commenced is not serviceable for purposes of construing the ethical rule. While for many purposes a person may not become a party to a criminal action (that is an "accused" with Sixth Amendment rights) until some adversarial proceeding has been commenced, in the context of the ethical code it is sufficient that the client is being investigated as a possible defendant in a potential criminal proceeding. Cf. ABA Comm. on Professional Ethics, Informal Opinions, No. 1149 (1970) (insured in subrogation action may not be contacted by opposing counsel although insured is not the real party in interest); ABA Comm. on Professional Ethics, Opinions, No. 95 (1933) (once claim against municipality has been "put in the hands of an attorney for attention" it is improper for police officers, clients of the municipal attorney, to obtain written statements from represented claimant); NYCBA Comm. on Professional Ethics, Opinions, No. 302 (1934) (attorney for defendant may not make settlement offer directly to injured party who has retained an attorney although no suit has been instituted); NYCBA Comm. on Professional Ethics, Opinions, No. 101 (1928) (attorney may not interview for fact-finding purposes opposing party represented by counsel in connection with a demand for money damages although suit has not been commenced). The rule proscribes communication on the "subject of representation." Cf. ABA Canons of Professional Responsibility No. 9 (1908) (prohibiting communication on the "subject of controversy"), reprinted in H. Drinker, Legal Ethics 312 (1953). Its application depends upon the existence of the attorney-client relationship, not upon the existence of a pending lawsuit. See NYCBA Comm. on Professional Ethics, Informal Opinions, No. 79-13 (1979) (proscription continues post-judgment so long as the attorney-client relationship has not terminated). A contrary view cannot be based on the fact that DR 7-104(A)(1), dealing with communications, uses the term "represented party" while DR 7-104(A)(2), covering advice, employs the term "represented person." Ethical Consideration 7-18 itself eschews the formalistic distinction in favor of an admonition to the attorney not to "communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter." (Emphasis added.) See also Clark & Wolfran, "Professional Responsibility: Issues for Minnesota Attorneys," Minn. State Bar Ass'n Continuing Legal Education 726-27 (1976) (word adverse in heading of the disciplinary rule should be ignored as a limitation on the application of the rule). Here the defendant had clearly become the target of the investigation and prosecution by indictment was imminent. Had the government at that time sought his testimony before the grand jury, the prosecutor would have been obliged to inform him that he might be charged and *654 that he would be well advised to seek independent legal counsel. United States v. Jacobs, 547 F.2d 772 (2d Cir. 1976) (suppression and dismissal on the basis of supervisory powers), cert. dismissed as improvidently granted, 436 U.S. 31, 98 S.Ct. 1873, 56 L.Ed.2d 53 (1978); ABA Standards, The Prosecution Function § 3.6(d) (1971). This practice of advising targets of their right to counsel, while not constitutionally mandated, United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), is followed voluntarily and by court order in this circuit. United States v. Jacobs, supra. It evinces an understanding of both prosecutors and courts that becoming the target of a grand jury proceeding, while not an adversarial event of constitutional dimension, is a grave enough development to warrant retention of an attorney. It hardly needs to be added that advising a target of the need for counsel and then undercutting that counsel by direct contact between government agents and the client vitiates the Jacobs rule. This expansive definition of a party to include a person who is a potential litigant is reflected in such cases as that covered in ABA Comm. on Professional Ethics, Informal Opinions, No. 1373 (1976). The Committee on Professional Ethics found that DR 7-104(A)(1) prohibited a district attorney from sending an attorney's client a copy of a plea offer letter, the original of which was sent to the attorney; the matter was only under investigation and the client had yet to be indicted. But cf. ABA Comm. on Professional Ethics, Informal Opinions, No. 908 (1966); W.T. Grant Co. v. Haines, 531 F.2d 671, 674 (2d Cir. 1976) (it is not unethical behavior for attorney for potential plaintiff to interview potential defendant "so long as the latter knows that the statement is being taken by the lawyer in his status as attorney for the plaintiff"). A court exercising its supervisory powers in the service of DR 7-104(A)(1) should enforce the rule even though there are no formal parties to a pending litigation. See In re FMC Corp., 430 F.Supp. 1108 (S.D.W. Va.1977). Viewing the rule in light of its purpose makes clear that a rigid notion that ethical obligations commence only when a criminal proceeding begins is not in harmony with the spirit of the Code. The rule is crafted to protect a client from squandering a possible claim or defense and to insure against disclosure of privileged information. These concerns are fully implicated by the time a client becomes aware that he is a focus of suspicion, and the government attorney knows he is represented and undertakes to confer with counsel on the matter. In white-collar crimes — and the instant case reflects a growing emphasis on such matters by federal prosecutors — the most critical phase is often before indictment; it is then that the skilled attorney uses persuasion and negotiation to forestall or shape the potential prosecution. Under DR 7-104(A)(1) it is not material ethically that the client has not technically become a party by indictment, arraignment or arrest. D. Communication — Direct or Indirect — Moment of Violation. Any direct communication between the Assistant United States Attorney, or a representative of his office, and the defendant occurring after the government became aware that he was represented by counsel would constitute a violation of DR 7-104(A)(1). The government notes, however, that the meeting was with a Customs officer's informant and all of the arrangements were made by Customs personnel, who as non-lawyers are not subject to the Code. See Massiah v. United States, 377 U.S. 201, 210-11, 84 S.Ct. 1199, 1205, 12 L.Ed.2d 246 (1964) (dissent) (co-defendant); United States v. Ferguson, 243 F.Supp. 237, 238-39 (D.D.C.1965) (FBI agent; suggesting, however, possible inadmissibility of evidence); State v. White, 494 S.W.2d 687, 692 (Mo.Ct.App.1973) (police); ABA Comm. on Professional Ethics, Informal Opinions, No. 1193 (1971) (lay investigators). While the United States Attorney's office neither authorized nor participated in the plan, it is arguable that the Customs agents were constructively under the control of, *655 and acting as the agents of, the United States Attorney. Cf. ABA Comm. on Professional Ethics, Opinions, No. 95 (1933) (municipal attorney responsible for acts of police officers under his supervision and control; officers are agents of the client municipality and attorney cannot sanction acts by his client which he himself may not perform). The circumstances of this case do not warrant such a legalistic approach. Fairness here prevents finding the Assistant United States Attorney guilty of a violation. He should not be held to have operated unethically when it is apparent that he was quite unaware of the eavesdropping until after the event. There is nothing to suggest that he indirectly encouraged the contact or intentionally shut his eyes to improprieties he knew others would commit. Cf. Broeder, "Wong Sun v. United States: A Study in Faith and Hope," 42 Neb.L.Rev. 483, 602 (1963). The Customs agents were not acting as the alter ego of the prosecutor. See United States v. Massiah, 307 F.2d 62, 66 (2d Cir. 1962), rev'd, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The prosecutor cannot, however, avoid responsibility for what he himself does at trial. An ethical violation would occur at the moment the evidence is introduced over defendant's objection. He cannot, under the Canon, "take advantage of statements obtained from ... a person represented by counsel in the absence of counsel." State v. White, 494 S.W.2d 687, 692 (Mo.Ct.App.1973). See also United States v. Thomas, 474 F.2d 110, 112 (10th Cir.) (excluding on ethical grounds statement taken by agent, who may not have known defendant was represented, without the knowledge of the United States Attorney, when the latter did know counsel was in the case), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973). In seeking to use the transcript, the United States Attorney would make himself a party to the conversation after the fact. He cannot seek to benefit from what would have been an impropriety had he approved the wire. United States v. Four Star, 428 F.2d 1406 (9th Cir.) (prosecutor who "takes advantage of its results violates professional ethics"), cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253 (1970); Schantz v. Eyman, 418 F.2d 11, 13 (9th Cir. 1969) (prosecutor cannot use confrontation with state psychiatrist), cert. denied, 397 U.S. 1021, 90 S.Ct. 1259, 25 L.Ed.2d 530 (1970); Coughlan v. United States, 391 F.2d 371, 376 (9th Cir.) (dissent), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); United States v. Wedra, 343 F.Supp. 1183, 1188 (S.D.N.Y. 1972). By introducing the tape the prosecutor effectively places himself, the jury, and even the court, at the keyhole, listening to the conversation. In effect, each of them is a party to the surreptitious recording as it is reproduced in the courtroom, thus becoming "accomplices in wilful disobedience" of rules of ethics. McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 615, 87 L.Ed. 819 (1943). Cf. Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960); Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 8, 1 L.Ed.2d 1 (1956). The position is one almost any American lawyer, whether in a civil or criminal case, would find uncomfortable to the point of embarrassment. See, e.g., United States v. Sam Goody, Inc., at 4 n.3, CR 80-507 (E.D. N.Y. July 27, 1981). ("[W]e believe that it was unethical for the government to `wire' an informant and send him to one of the defendants' offices in an attempt to elicit incriminating statements after that defendant's attorney had presented himself to the prosecutor and told him to deal with his client only through him (the attorney). See Code of Professional Responsibility, DR 7-104.") (Emphasis in original). E. Federal Rule. Nevertheless, a number of federal cases suggest that DR 7-104(A)(1) is coextensive with the Sixth Amendment. See, e.g., United States v. Henry, 447 U.S. 264, 275 n.14, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980) (citing disciplinary rule but noting "it does not bear on the constitutional question"); Massiah v. United States, 377 U.S. 201, 210, 84 S.Ct. 1199, 1205, 12 L.Ed.2d 246 (1964) (dissent) (ethical canons "are not of *656 constitutional dimension"); United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981); United States v. Lemonakis, 485 F.2d 941 (D.C.Cir. 1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974); United States v. Springer, 460 F.2d 1347 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); Mathies v. United States, 374 F.2d 312 (D.C.Cir.1967) (relying on supervisory power to exclude evidence obtained in violation of ethical rule but United States v. Lemonakis, 485 F.2d 941, 955 n. 21 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974), construed the violation in Mathies as one of "constitutional dimension"); Ricks v. United States, 334 F.2d 964 (D.C.Cir.1964) (same). Cf. United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); Coughlan v. United States, 391 F.2d 371, 376 (9th Cir.) (dissent), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); United States v. Wedra, 343 F.Supp. 1182 (S.D.N.Y.1972). Other cases indicate that exclusion of evidence obtained in violation of the rule in the absence of a constitutional infringement is not warranted. See, e.g., United States v. Henry, supra; Massiah v. United States, supra; United States v. Vasquez, supra; Stringer v. State, 372 So.2d 378 (Ala.Crim.App.), cert. denied, 372 So.2d 384 (Ala.S.Ct.1979); State v. Hall, Iowa, 297 N.W.2d 80, 90, cert. denied sub nom. Hall v. Iowa, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979); State v. McConnell, 529 S.W.2d 185 (Mo.App.Ct.1975) Cf. United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); Coughlan v. United States, 391 F.2d 371, 376 (9th Cir.) (dissent), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); United States v. Wedra, 343 F.Supp. 1182 (S.D.N.Y.1972). See also Obser v. Adelson, 96 N.Y.S.2d 817 (Sup.Ct. New York County 1949) (civil case suppressing evidence procured in violation of court rule prohibiting communication with adverse party), aff'd, 276 App.Div. 999, 95 N.Y.S.2d 757 (1st Dep't 1950). For example, in United States v. Kenny, 645 F.2d 1323 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), defendant Kenny sought to exclude one of the "more dramatic" pieces of evidence, a tape recording made by a codefendant as a government informer of conversations between the two. The recording occurred prior to Kenny's indictment but after the government knew that he was represented by counsel. Predictably, the Sixth Amendment provided no basis for suppression. Also unsuccessful, however, was Kenny's ethical violation argument in view of the recording's factual setting, that is, "a non-custodial environment, prior to ... charge, arrest or indictment." Id. at 1339. Cf. ABA Comm. on Professional Ethics, Opinions, No. 337 (1974) ("mere fact that secret recordation in a particular instance is not illegal will not necessarily render the conduct of a public law enforcement officer in making such a recording ethical," but in "extraordinary circumstances" government attorney might ethically make and use secret recordings if acting within statutory limits conforming to constitutional requirements). See also NYSBA Comm. on Professional Ethics, Opinions, No. 328 (1974) (even if electronic recording by private attorney is not illegal "it offends the traditional high standards of fairness and candor that should characterize the practice of law and is improper except in special situations"). In Ricks v. United States, 334 F.2d 964 (D.C.Cir.1964), the Court of Appeals for the District of Columbia reversed a conviction for the improper admission of pre-indictment statements made to the police by the unrepresented defendant after his arrest and prior to his unduly delayed preliminary hearing. The court refused to put the matter on the ground of constitutional mandate, relying instead on "the exercise of ... local supervisory power." Id. at 971. Cf. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Nevertheless, *657 in the subsequent case of Lemonakis v. United States, 485 F.2d 941 (D.C.Cir. 1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974), it concluded that a surreptitious recording made in a noncustodial setting constituted no ethical breach. Drawing a Sixth Amendment distinction for ethical purposes between the investigatory and accusatory stages of criminal proceedings, the court found that the Code did not "embrace" communications between the government informer and the represented but unindicted suspect. Id. at 955-56. At the same time the court refused to extend the Sixth Amendment by redefining the "critical stage" at which the right to counsel attaches. It relied heavily on a Second Circuit case, United States v. Massiah, 307 F.2d 62 (2d Cir. 1962), rev'd on other but related grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), arriving at much the same result. Cases failing to discern an ethical infraction, such as Lemonakis and Kenny, also fail to find a constitutional violation. Conversely, most cases finding an ethical violation have been those explicitly finding a simultaneous constitutional infringement. Schantz v. Eyman, 418 F.2d 11 (9th Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1259, 25 L.Ed.2d 530 (1970); Lee v. United States, 322 F.2d 770 (5th Cir. 1963); United States v. Wedra, 343 F.Supp. 1183 (S.D.N.Y. 1972). In only a few cases have federal courts suggested that an ethical violation occurred in the absence of a constitutional infraction. In United States v. Four Star, 428 F.2d 1406 (9th Cir.), cert. denied, 400 U.S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253 (1970), for example, although the defendant voluntarily waived his Miranda rights the court cautioned that an in-custody interrogation of a represented accused in the absence of counsel violated professional ethics. The ethical violation was apparently not suggested as a ground for suppression. United States v. Thomas, 474 F.2d 110 (10th Cir.) cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973), likewise considered it to be an ethical violation to communicate with a represented accused in custody, after the filing of a criminal complaint and arraignment without consent of counsel regardless of whether the government agent knew the accused was represented. Some of the language in Thomas is very broad, suggesting that custody would not be a controlling factor. Because the issue was first raised on appeal, the court refused to reverse and set down a prospective prophylactic rule. The suggestion in Thomas is strong, however, that had the trial court suppressed, it would have been affirmed. Although nowhere does the Thomas court speak of constitutional rights, resting its decision instead on ethical considerations, subsequent cases have apparently viewed Thomas as establishing a principle of constitutional dimension. See, e.g., People v. Pierson, 633 P.2d 485, 488 (Colo.Ct.App.1981). While the cases tenaciously link the scope of DR 7-104(A)(1) in criminal matters to that of the Sixth Amendment, this unity is neither apparent nor compelling. The two principles are not Siamese twins. The Constitution and the Code of Ethics stem from different sources, serve independent, although sometimes congruent, interests, and may require different means to effectuate their goals. The Constitution, for all its grandeur, represents only the "minimal historic safeguards ... summarized as `due process of law'." McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 613, 87 L.Ed. 819 (1943). The Code embodies more. It articulates a lawyer's obligation "to maintain the highest standards of ethical conduct." ABA Code of Professional Responsibility Preamble. See ABA Comm. on Professional Ethics, Opinions, No. 203 (1940); NYSBA Comm. on Professional Ethics, Opinions, No. 328 (1974); NYSBA Comm. on Professional Ethics, Opinions, No. 272 (1972) (application of the Code is not necessarily affected by statutes or regulations prescribing less stringent standards); NYSBA Comm. on Professional Ethics, Opinions, No. 323 (1974) ("Professional standards adopted in the public interest often condemn the doing of what the law has not forbidden."). And in a number of contexts, *658 the Sixth Amendment and DR 7-104(A)(1) have been afforded disparate limits. For example, even before the Sixth Amendment right was held to attach at the early pretrial stages, for purposes of DR 7-104(A)(1) a defendant was deemed represented from the time he requested the assistance of counsel. 28 Ore.S.B.B. 10, Opinion No. 155 (1967). See also Abeles v. State Bar, 9 Cal.3d 603, 108 Cal.Rptr. 359, 363 & n.7, 510 P.2d 719 (1973) (rule applies to attorney of record regardless of whether he was authorized in fact to act for the party in the matter). Present federal law apparently permits a defendant to waive his constitutional rights and to communicate with the authorities with or without the presence of his attorney so long as the waiver is an intelligent and voluntary one. See Brewer v. Williams, 430 U.S. 387, 405-06, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424 (1977); United States v. Brown, 569 F.2d 236 (5th Cir. 1978) (en banc); United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978). Such a waiver in the absence of counsel does not violate the defendant's constitutional rights. The rule necessarily is otherwise with respect to DR 7-104(A)(1) because it is not directed solely at protecting the defendant's rights. The ethical rule is also intended to enhance an entire profession's ability to perform its essential functions effectively through the protective screen it places around the client and the attorney-client relationship. This relationship may arise at any time; its existence does not depend upon the stage of investigation or adversarial proceedings. Once it is established, the attorney has assumed the duty to zealously and competently represent the client and he may be held accountable for faithful performance. See ABA Canons of Professional Ethics Nos. 6, 7 and 9. To assign him such broad responsibilities implies that he will have some measure of control over developments concerning his client, whether in the nature of investigation, discovery, settlement or otherwise. No attorney can insure that his client will not imprudently sign a release, for example, or divulge privileged information whether by reason of ignorance or susceptibility to undue pressure. The Code supplies the necessary restraint in order to make the attorney's duty tenable by controlling the conduct of the adversary's counsel. Thus, the communication prohibition remains operative even where a represented party requests or agrees to communicate in the absence of his own attorney with opposing counsel. ABA Comm. on Professional Ethics, Opinions, No. 108 (1934). Unlike Sixth Amendment rights, the Canon "is not something the defendant alone can waive." United States v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973). F. New York Rule. Whatever the rule may be in the federal cases discussed above, New York State courts would apply the New York State Bar Association Code DR 7-104(A)(1) — which is identical with the American Bar Association's version — to interviews before indictment of a represented person. See People v. Skinner, 52 N.Y.2d 24, 436 N.Y. S.2d 207, 417 N.E.2d 501 (1980); People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976). Cf. Tabbi v. Town of Tonawanda, 111 Misc.2d 641, 444 N.Y. S.2d 560 (Sup.Ct. Erie County 1981) (civil case; exclusion of evidence is not proper remedy for a violation of DR 7-104(A)(1) absent infringement of constitutional rights). The present United States Attorney and all of the judges of this court are admitted to practice in New York State's courts. They are subject to the State's disciplinary rules. An attorney disciplined by the state courts for an ethical violation is almost invariably treated in the same way when he has also been admitted in this court. See Local Rules United States District Court, Eastern District of New York, General Rule 5. For all practical purposes New York's ethical decisions are treated as binding when this court exercises control and supervision *659 over those admitted to practice before us. It is hard to justify a practice whereby this court sanctions an action which would be unethical were it taken in a state court. III. Supervisory Powers. Federal courts have long been charged with the duty of overseeing the orderly administration of criminal justice and supervising the practice of attorneys before the federal bar including government attorneys and investigative officers. See, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Smith v. Katzenbach, 351 F.2d 810 (D.C.Cir.1965). The exercise of supervisory power is not limited to enforcing the minimal standards of conduct and procedure derived from the Constitution but extends to establishing and maintaining those higher standards necessary and helpful in promoting fair adjudications and securing the integrity of the federal court system. See, e.g., McNabb v. United States, supra, 318 U.S. at 340, 63 S.Ct. at 613; United States v. Payner, 447 U.S. 727, 744-51, 100 S.Ct. 2439, 2450-52, 65 L.Ed.2d 468 (1980) (dissent) (collecting cases); United States v. Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (dissent), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633 (1971). Thus, the court's inherent power may be applied to curb procedures with potential for abuse. United States v. Tantalo, 680 F.2d 903, 909 (2d Cir. 1982); United States v. Hinton, 543 F.2d 1002, 1010 (2d Cir. 1976), cert. denied sub nom. Carter v. United States, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976), cert. denied sub nom. Bates v. United States, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 783 (1977). Cf. United States v. Thibadeau, 671 F.2d 75, 77-78 (2d Cir. 1982). The supervisory power may be invoked "in any manner necessary to remedy abuses of a district court's process." United States v. Toscanino, 500 F.2d 267, 276 (2d Cir. 1974). Deception such as that practiced here on both the defendant and his attorney can be said to have constituted an abuse of the process of this court when the court becomes implicated — i.e., when fruits of the deception are sought to be used in court. Introduction at trial of evidence obtained in this way would make the court an instrument of the ethical violation. To countenance a procedure such as is sought to be used here encourages contempt for the disciplinary rules. A court should not ignore the government's disregard of an established attorney-client relationship lest it invite a devaluation of the entire judicial process. While the violation of DR 7-104(A)(1) has increasingly become an object of judicial concern, it has not been considered an adequate or appropriate basis for imposing supervisory sanctions such as exclusion after conviction. Stringer v. State, 372 So.2d 378 (Ala.Crim.App.), cert. denied, 372 So.2d 384 (Ala.S.Ct.1979); State v. Hall, Iowa, 297 N.W.2d 80, 90, cert. denied sub nom. Hall v. Iowa, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); People v. Green, 405 Mich. 273, 274 N.W.2d 448 (1979); State v. McConnell, 529 S.W.2d 185 (Mo.App.Ct. 1975). Cf. United States v. Thomas, 474 F.2d 110 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); Coughlan v. United States, 391 F.2d 371 (9th Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); United States v. Wedra, 343 F.Supp. 1182 (S.D.N.Y.1972). See United States v. Henry, 447 U.S. 264, 275 n.14, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980); Escobedo v. State, 378 U.S. 478, 487 n.7, 84 S.Ct. 1758, 1763, 12 L.Ed.2d 977 (1964). See generally Broeder, "Wong Sun v. United States: A Study in Faith and Hope," 42 Neb.L.Rev. 483, 603 (1963) ("[T]he fault lies not principally with the prosecutors but with the courts who have repeatedly countenanced prosecutor abuse of Canon [7] by affirming convictions in which such abuses were present ...."). See also Obser v. Adelson, 96 N.Y.S.2d 817 (Sup.Ct. New York County 1949) (civil case suppressing evidence procured in violation of court rule prohibiting communication with adverse party), aff'd, 276 App.Div. 999, 95 N.Y.S.2d 757 (1st Dep't 1950). At that *660 stage enforcement of the ethical rule through retroactive suppression would usually entail reversal. In light of the high cost to society of such reversals there is understandable reluctance to use after-the-fact action as a mode of discipline. See United States v. Morrison, 449 U.S. 361, 365-66, 101 S.Ct. 665, 668-69, 66 L.Ed.2d 564 (1981) (dismissal of indictment); United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3, 99 S.Ct. 2627, 2633, 61 L.Ed.2d 343 (1979); United States v. Ceccolini, 435 U.S. 268, 274-80, 98 S.Ct. 1054, 1059-62, 55 L.Ed.2d 268 (1978); United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). A trial court before trial has greater flexibility in fashioning appropriate remedies; the prosecutor may proceed but is merely restrained from acting unethically. Cf. Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964) (continuation of investigation of suspected criminal activities "entirely proper," but improperly obtained statements may not be used by prosecutor as evidence against defendant at trial). Moreover, the task of ensuring that attorneys comport themselves in accordance with recognized ethical precepts is a task which "falls primarily upon district courts." United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). It can be performed without overturning a validly arrived at unanimous jury verdict. Cf. United States v. Thibadeau, 671 F.2d 75 (2d Cir. 1982). United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980), does not require a trial court to refrain from exercising control over admission of evidence. Payner concluded that the supervisory power did not authorize suppression of unlawfully seized evidence "at the instance of a party who was not the victim of the challenged practices." Id. at 735 n.7, 100 S.Ct. at 2446. Despite the strong reasons for invoking DR 7-104(A)(1) as the basis for exclusion, reluctantly the court must conclude that it would be inappropriate for a trial court in this circuit to do so at this time. The Second Circuit Court of Appeals has apparently recently denied that power to its trial judges. See United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982). It wrote: Nor do we find merit in Vasquez's argument that, because he had at his own request been represented by counsel when he testified before the grand jury and prior to the time of the recording, Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility was violated, entitling him to invoke the Sixth Amendment. Such a principle would simply enable criminal suspects, by retaining counsel, to hamper the government's conduct of legitimate investigations. Even assuming this provision of the Code to be applicable to a criminal investigation, which is doubtful, it was not intended to lead to such a result. Moreover, the district court found that at the time of the recording Vasquez was not represented by counsel, and we have been presented with no evidence suggesting that this finding was in any way erroneous. Id. at 17. While the Vasquez opinion is sparse in explication and might be distinguished as dictum since 1) the trial court found that the defendant was not represented by counsel when he was surreptitiously recorded, and 2) the decision may have been based on the Sixth Amendment rather than on the Disciplinary Rule, this recent statement appears to have been intended as binding Second Circuit procedural law. It was at first an unpublished opinion but was published at the request of the government, apparently as an advisory to trial judges and the bar. Reconsideration of Vasquez at least to limit its scope seems desirable. IV. Redaction The court has unsuccessfully attempted redaction as a means of minimizing the *661 denigration of the attorney-client relationship which would be accomplished by use in court of the recording. Elimination of those portions in which defendant's attorney speaks tends, however, to give a more sinister cast to the conversation than it would have were the jury to hear the conversation without breaks and erasures. If the recording is played without redaction, it will be almost impossible for counsel — clearly recognizable by his voice as the trial attorney — not to be compromised in conducting the defense. It may be possible for counsel to avoid taking the witness stand in violation of DR 5-102, but his voice sounding through the courtroom as the tape is played will make him a witness in fact. Any argument on behalf of his client will necessarily be a justification and explanation of his own conduct — a situation frowned on by our ethical standards. V. Rule 403 of the Federal Rules of Evidence. The evidence of the recording can be justified under Rule 404(b) of the Federal Rules of Evidence grounds as showing the plan and practice of defendant in selling electronic equipment. But when used for this purpose, it is cumulative. There is no doubt that defendant was conducting a large and lucrative export business in electronic gear. Those passages suggesting that defendant knew he needed export licenses would be admissible since specific intent appears to be an element of the crime. But they are at least ambiguous in their import. Considering that the statements were made after defendant's merchandise was seized by Customs for failure to have licenses, they can be construed as an explanation to a customer of reasons for the delay in delivery and of the need for the customer to provide information about such matters as ultimate destinations in order to obtain an export license. The risk that the jury will misconstrue the conversation is substantial, particularly since use of a recording device reflected an intense interest of law enforcement officials in defendant. The slight probative force of the recording, its cumulative nature, the time required to deal with it in court, and its probable interjection of prejudice argue for exclusion under Rule 403 of the Federal Rules of Evidence. Difficulties in redaction, inhibition of trial counsel, and strong ethical doubts about the propriety of allowing the recording in evidence, even if not sufficient in themselves to warrant exclusion, support the Rule 403 result. Conclusion Defendant's motion to dismiss is denied. The evidence of the recording may not be used in the government's direct case. Whether it may be used on cross-examination or on rebuttal depends upon developments at the trial not now predictable. So ordered.

Case: 09-31095 Document: 00511117453 Page: 1 Date Filed: 05/20/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED May 20, 2010 No. 09-31095 Summary Calendar Lyle W. Cayce Clerk AMY WEIDIG SHOEMAKER, Plaintiff-Appellee v. MICHAEL SHOEMAKER, Defendant-Appellant v. EDWARD J. GONZALES, III; KYLA BLANCHARD ROMANACH; THERESA KONTOS; THE REVEREND CHARLES DEGRAVELLES; THE REVEREND JACQUELINE MEANS; EPISCOPAL CHURCH OF THE USA; VINCENT SAFFIOTTI; MICHAEL HACKETT; CINDY OBIER; BURL CAIN, Third Party Defendants-Appellees Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:09-CV-440 Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.  Case: 09-31095 Document: 00511117453 Page: 2 Date Filed: 05/20/2010 No. 09-31095 This case began in a Louisiana state court when Amy Weidig Shoemaker sued her ex-husband, Michael Shoemaker (Shoemaker), for child support. Shoemaker, an inmate at the penitentiary at Angola, Louisiana, added additional parties to the suit and removed the matter to federal court under the provisions of 28 U.S.C. §§ 1443 and 1446. He asserted that jurisdiction was proper because he had claims under 42 U.S.C. § 1983. The district court, holding that there was no federal jurisdiction to entertain the case, remanded it to state court. Shoemaker appeals the district court’s remand order. Because we are without jurisdiction to review that order, we must dismiss the appeal. Shoemaker contends that the remand order was erroneous because his amended complaint superseded the original demand filed in state court. He contends further that the family court had, after his attempted removal, already dismissed the case. Thus, he reasons, the case had never been removed pursuant to § 1443. He contends that remand was improper because his amended complaints supplied a basis for federal jurisdiction. An appellate court is without authority to review an order of remand to state court if the ground for remand is based on either (a) defects in the removal procedure or (2) lack of jurisdiction over the subject matter of the suit. Smith v. Texas Children’s Hosp., 172 F.3d 923, 925 (5th Cir. 1999) (citing, inter alia, 28 U.S.C. § 1447). This is so even if the district court’s decision was wrong. See id. In the instant case, the remand order was based on (1) the holding of the district court that removal was not proper because § 1443, the statute that Shoemaker originally invoked as his basis for removal, did not provide for federal jurisdiction to adjudicate his demand and (2) the alternative holding that the removed petition failed to present any other basis for federal question jurisdiction or any basis for diversity jurisdiction. We will review remand orders only if the district court affirmatively states a ground for remand that is not based on § 1447(c). See Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 408 2  Case: 09-31095 Document: 00511117453 Page: 3 Date Filed: 05/20/2010 No. 09-31095 (5th Cir. 1991). Consequently, we have no jurisdiction to review the order remanding this case to family court. See Smith, 172 F.3d at 925. This result is not changed by Shoemaker’s amended complaint. Even assuming that the amended complaint presents a basis for federal jurisdiction, that basis did not exist at the time of removal, as was required for removal to have been proper. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574 (2004); Caterpillar Inc. v. Lewis, 519 U.S. 61, 65, 68-69 (1996) MOTION TO CORRECT BRIEF GRANTED; APPEAL DISMISSED. 3 

428 F.2d 1274 The PILLAGER BANDS OF CHIPPEWA INDIANS IN the STATE OF MINNESOTAv.The UNITED STATES. Appeal No. 5-69. United States Court of Claims. July 15, 1970. Robert C. Bell, Jr., New York City, attorney of record, for appellants. Craig A. Decker, Washington, D. C., with whom was Asst. Atty. Gen., Shiro Kashiwa, for appellee. Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges. ON APPEAL FROM THE INDIAN CLAIMS COMMISSION DAVIS, Judge. 1 In the mid-1840's the United States embarked on a program of acquiring Indian lands in the Western Great Lakes region. During the next decade several treaties were made with different tribes which ceded their lands in return for varying considerations, including cash, goods, and resettlement on newly established reservations.1 Among the most desirable tracts was an area in Wisconsin inhabited by the Menominee Tribe. As a step in gaining possession of that land, the United States agreed with the Pillager Band of Minnesota Chippewas — the Treaty of August 21, 1847, 9 Stat. 908, involved here — to purchase some 700,000 acres in Minnesota from the Pillagers, upon which the Government hoped to relocate the Menominees in exchange for the latter's Wisconsin tract. The Pillagers, inveterate foes of the Sioux who lived next to the 700,000 acres in question, agreed "to sell and cede" that land, designated as "Royce 269."2 The consideration paid the Pillagers, the claimant-appellants, consisted of a supply of dry goods valued at approximately $19,000, and an unwritten promise to settle the Menominees, their allies, on the land, to serve as a buffer between them and the Sioux. The treaty, signed August 21, 1847 and effective April 7, 1848, was extremely brief, noting the friendship between the parties, the location of the land sold and ceded, and the consideration given. Article III, which forms the basis of appellants' suit, stipulated that 2 the country hereby ceded shall be held by the United States as Indian land, until otherwise ordered by the President. 3 A few months later in 1848, the United States sold Royce 269 to the Menominees in return for their Wisconsin property. Treaty of October 18, 1848, 9 Stat. 952. However, upon reconsideration, that tribe decided against abandoning its Wisconsin woodlands, and refused to accept the October 1848 agreement. Surrendering hope of successfully enforcing the compact's terms, the United States, in 1854, reacquired Royce 269 from the Menominees for $262,000 as well as acreage in the Wisconsin forest area on which the Menominees have since lived. Treaty of May 12, 1854, 10 Stat. 1064. Thus, the original plan to interpose the Menominees between the Sioux and the Pillagers was never carried out. The need for this buffer, moreover, soon evaporated. In 1851 the Sioux ceded to the Federal Government all their lands bordering or near to the tract on which the Menominees were to settle. Treaties of July 23 and August 5, 1851, 10 Stat. 949, 954. And in 1855, several Chippewa bands, including the Pillagers, gave up approximately 11,000,000 acres to the United States, and renounced all interest, title, and claim to any lands previously held in Minnesota. Treaty of February 22, 1855, 10 Stat. 1165. The Pillagers agreed to relocate on a reservation many miles from Royce 269. 4 In 1864, Royce 269 was opened to white settlers, and it has become a thriving part of the State of Minnesota. In that connection, during the late nineteenth century and the early 1900's, the Department of the Interior became concerned about this area over the subject of liquor. Under some Indian treaties involving Minnesota land, the United States had stipulated that liquor would not be sold on the ceded land. The 1847 Pillager treaty did not contain that express agreement, but it did say that Royce 269 was to be held "as Indian land"; under federal law, liquor could not be introduced into Indian country. Because of these apparent restrictions, controversy erupted over the right to sell spirits in that part of Minnesota. See Johnson v. Gearlds, 234 U.S. 422, 34 S.Ct. 794, 58 L.Ed. 1383 (1914). To remove these limitations as far as he could, President Taft, at the suggestion of the Interior Department, issued several Executive Orders in February 1911. Among them was a directive declaring that Royce 269 "shall no longer be held by the United States as Indian land." 5 Sometime after the Menominees refused to move to Royce 269, and the Federal Government paid them (in 1854) over $262,000 plus good Wisconsin land for that tract, the Pillagers (who had received, in 1848, only $19,000 and the implied promise of friendly neighbors) began to complain that they had been short-changed. These protests were repeated periodically, without much success, until in 1931 a special jurisdictional act allowed them to file suit in this court. Act of March 3, 1931, 46 Stat. 1487. That action was never concluded, however, and after the passage of the Indian Claims Commission Act the present claim was filed under that general statute. The theory is that the Government paid less than fair value for Area 269 and the claimants are now entitled under the Indian Claims Commission Act to a fair-value measure of compensation. 6 The issue of value has come to the fore because the Commission granted the appellants' motion for summary judgment, concluding "as a matter of law that the Pillager Band of Chippewa Indians was the owner by recognized title of the land (Royce Area 269) ceded by it to the United States by the Treaty of August 21, 1847." The case was ordered to "proceed [in the Commission] to a determination of the acreage and fair market value of Royce Area as of April 7, 1848" — the 1847 treaty's proclamation date, which the Commission held to be "the date of taking of the lands involved" — "and also to a determination of the value of the consideration given by defendant for the cession." See 19 Ind.Cl.Comm. 500 (1968). 7 The case is not before us on the tribes' entitlement to recover, but solely on the proper date of the "taking". After the Commission's ruling on their motion for summary judgment, the Pillagers submitted a motion for partial reconsideration, alleging that the cession in 1847 was "conditional", subject to Article III of the Treaty which provided that Royce 269 would be Indian land "until otherwise ordered by the President." The argument was that, as a result of this clause, the Government held the land in trust for the Pillagers until 1911, when President Taft abrogated the "Indian lands" status of the territory; at that time, and not in 1848, the United States gained absolute title; accordingly, compensation should be measured according to the fair market value of the land as of 1911. On the Commission's denial of this motion, 21 Ind.Cl.Comm. 1 (1969), the Indians took an interlocutory appeal to this court. See 25 U.S.C. § 70s(b). I. 8 Even if appellants were right in claiming that Article III of the 1847 Treaty put Royce 269 in trust for them, it would not follow that 1911 would be the proper date of valuation. The rule under the Indian Claims Commission Act is that the compensation for a "taking" by the United States is determined by the fair market value of the land no later than the date the Government actually takes over possession or exerts dominion. This is so whether the acquisition is by eminent domain; wrongful appropriation in invitum; a coerced, unfair, or invalid agreement; or a sale for a unconscionably low consideration. Whether the "taking" be constitutional (in the sense of a Fifth Amendment taking) or simply statutory (in the sense of the non-constitutional "takings" for which the Claims Commission Act allows recovery), the latest time for measurement of value is when the Federal Government ousts the Indians under claim of right, gets possession of the land, or otherwise asserts dominion. This is the principle which has consistently been followed. 9 In Sac and Fox Tribe v. United States, 315 F.2d 896, 901, 161 Ct.Cl. 189, 199, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963), we said in answer to a claim that, since an 1804 cession treaty was said to be invalid, the ceded land "would not have been acquired by the United States in 1804 but only at a later time (under post-1804 treaties or when actually disposed of to settlers) and would therefore have to be valued as of that subsequent date": 10 * * * If the treaty were invalid, the United States would have unilaterally deprived the Sac and Fox of their lands in 1804, not later; that would be the date of definitive taking, for there could have been little doubt in the minds of the Indians that the United States was continually asserting full ownership of the area after the Treaty. [Footnote omitted.] * * * The proper valuation date would, as we have said, be the date of deprivation, November 1804. It follows that, whether or not the Treaty was validly negotiated, the taking or acquisition by the United States, and the loss by the Indians, occurred in that year. It makes no difference to this proceeding whether the Treaty was invalid at its inception or whether it is now revised (under the Claims Commission Act) on the grounds of unconscionable consideration. In either event the lands found to have been held by the Sac and Fox are to be valued as of 1804, and not thereafter. 11 Later, in Sac and Fox Tribes v. United States, 383 F.2d 991, 179 Ct.Cl. 8, cert. denied, Iowa Tribe of Iowa Reservation in Okl., 389 U.S. 900, 88 S.Ct. 212, 19 L.Ed.2d 217 (1967), we noted that the measure of recovery for the sale of Indian land to the United States at an unconscionably low price must be based upon "the fair market value of the lands at the date of acquisition" by the Government, 383 F.2d at 1001, 179 Ct.Cl. at 27. To the same effect is Nooksack Tribe of Indians v. United States, 162 Ct. Cl. 712, 715 (1963), cert. denied, 375 U.S. 993, 84 S.Ct. 633, 11 L.Ed.2d 479 (1964); those Indians argued that, since they were not parties to the treaty involved, their rights remained unimpaired and there was no taking of their lands until much later when whites came into the area as homesteaders; the court ruled, however, that, since the Government always regarded the lands ceded by the treaty (which included the claimant's property) as public land disposable by the United States, the effective date of the treaty was the proper date of "taking". See, also, Sac and Fox Tribe v. United States, 383 F.2d 991, 1001-1002, 179 Ct.Cl. 8, 27-29, cert. denied, Iowa Tribe of Iowa Reservation in Okl., 389 U.S. 900, 88 S.Ct. 212, 19 L.Ed.2d 217 (1967); and United States v. Northern Paiute Nation, 393 F.2d 786, 183 Ct.Cl. 321 (1968). 12 Long before 1911, the Federal Government had asserted and exerted full dominion over Royce 269. As early as October 1848, some six months after the Pillagers' cession of the area to the United States, the Government ceded the land outright to the Menominees (Treaty of October 18, 1848, 9 Stat. 952), an act appellants concede was within the Goverment's authority. Subsequent transactions showing effective dominion over the tract by the United States include its reacquisition of the territory from the Menominees in 1854 (Treaty of May 12, 1854, 10 Stat. 1064), the renunciation by the Chippewa Indians, including the Pillagers, of all interest to land in Minnesota in 1855 (Treaty of February 22, 1855, 10 Stat. 1165), and the opening of Royce 269 to white settlers under the Homestead Act in 1864. It is undeniable that the United States exercised full sovereign rights over the land in question, inconsistent with the Pillagers' claim of a continuing interest, much before President Taft's executive order of 1911. The "taking" for which compensation is now asked must therefore have occurred at least several decades before the late date appellants select for measuring fair value. 13 It is not unjust to appellants to reject 1911. As we have already indicated, the executive order in February of that year had no connection whatever with any of the true concerns of this lawsuit. The order was issued (along with others) solely and merely to make it clear that liquor could be sold in a part of Minnesota long treated as an integral and non-Indian part of that state. No one was thinking, when the order was issued, of ending a "trust" held by appellants or of "taking" their property; indeed, it is obvious that no one was thinking of the Pillagers at all. If appellants could invoke that executive order for valuation purposes, it would be the sheerest type of unanticipated good fortune, a legal windfall. II. 14 Having decided in Part I, supra, that appellants' date of 1911 cannot be accepted, we must now consider whether the Commission was correct in choosing April 1848, the effective date of the Pillager treaty, rather than some later time (e. g., 1854, or 1855, or 1864). If the compact gave full and outright title to Area 269 to the United States, without creating any continuing trust for the Pillagers, it would be clear that the Commission's selection is right. Appellants' demand for a later cut-off date is, and can be, based only on the point that Article III established some sort of trust. Since the validity of that "trust issue" can be dispositive of the entire appeal, we first concentrate on it (as did the Commission below). 15 Putting Article III aside, the terms of the Treaty (9 Stat. 908) undoubtedly point to an outright cession without any continuing interest in the Indians. Article II provides: "The Pillager band of Chippewa Indians hereby sell and cede to the United States all the country within the following boundaries * * *" (emphasis added). Article IV says that "[i]n consideration of the foregoing cession, the United States agree to furnish to the Pillager band" specified articles (emphasis added). Even Article III3 refers to the "country hereby ceded" (emphasis added) as if the entire interest in the land was passing at that time to the Federal Government. As for the effect of Article III, assuming that the aim of the agreement to hold the area "as Indian land" was to assure the Pillagers of friendly Indian neighbors, this would normally on its face be a contractual understanding or undertaking, forming part of the consideration paid to the tribe, not the implicit creation of a trust by which the Pillagers continued to have an interest in land which they would not thereafter use or occupy. It would be unusual for a tribe to have a trust interest in a region to be inhabited by other Indians. 16 The only contemporaneous documentation now available consists of the guidance to the federal treaty commissioners, and their transmittal of the treaty to Washington. The instructions called for a "purchase", and referred to a treaty "ceding" the desired land. The transmittal also referred to "purchase" and the "lands purchased". See 21 Ind.Cl. Comm. 1, 8-9 (findings 13-14). Neither set of papers indicates any sort of trust or continuing interest on the part of the Pillagers. This contemporaneous history is thus more consistent with an outright cession than with the special trust appellants claim. The same is true of the Pillagers' relinquishment of their Minnesota lands in 1855, including Royce 269, without any claim as to 269 even though it was then known that the Menominees would not settle in the area. 17 Appellants lean most heavily on a statement made in 1889 by Henry Rice, the sole surviving government negotiator of the 1847 Treaty, in an address to the Pillagers.4 In response to a plea from the tribe for justice with respect to area 269 which was asserted to have only been "borrowed" by the United States, Mr. Rice characterized the tract as "the land that you loaned your Great Father forty-two years ago * * *." H.R.Ex.Doc. 247, 51st Cong., 1st Sess., pp. 124-25, March 6, 1890. But earlier, in 1880, the same Mr. Rice had stated in a letter to a chief of the Pillagers: "The sale [of Royce 269] was positive. The Pillagers have no legal claim to the land, but morally have a claim upon the Government, which claim I hope may at some suitable time be acknowledged by giving to this poor band such aid as will improve its condition." This same letter said: 18 In 1847 when the Pillager Indians by treaty sold to the United States [Royce 269] for a nominal consideration, it was understood that the country ceded had been selected for the future residence of the Menominee Indians who were friendly to the Chippewas, and the country would remain Indian territory (emphasis added). 19 From appellants' standpoint, there is, at best, a sharp conflict in Rice's post-Treaty appraisal of the Treaty's effect, and we would not be justified in elevating his single 1889 comment ("the land that you loaned") over his contrary 1880 statement, the words of the Treaty, the evidence contemporary with the Treaty, and the Pillagers' own conduct at a time much closer to the Treaty than the 1880's. As a whole, the history and the Treaty terms fit considerably better with the interpretation that (a) the agreement embodied a mutual intent to dispose of title, with the understanding (as part of the consideration) that the Menominees would settle in the ceded area; and (b) a not-surprising complaint by the Pillagers of unfair failure of consideration after the Menominees refused to come over but were nevertheless paid much more handsomely for the area than the Pillagers had received a few years before. The basis for implying a trust is far too slight, even though we read the Treaty liberally in favor of the Indians, as we must. Cf. Chippewa Indians of Minnesota v. United States, 307 U.S. 1, 5, 59 S.Ct. 687, 83 L.Ed. 1067 (1939); United States v. Choctaw Nation and Chickasaw Nation, 179 U.S. 494, 535-536, 21 S.Ct. 149, 45 L.Ed. 291 (1900); Sac and Fox Tribe v. United States, 383 F.2d 991, 1001, 179 Ct.Cl. 8, 27, cert. denied, Iowa Tribe of Iowa Reservation in Okl., 389 U.S. 900, 88 S.Ct. 212, 19 L.Ed.2d 217 (1967). 20 We see United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938) — on which appellants rely — as markedly dissimilar. That treaty for the cession of Indian property contained a clause reserving a portion of the land sold which would "until otherwise ordered by the President * * * be set part as a residence for said Indians. * * *" Treaty of October 14, 1864, 16 Stat. 707, 708. We can assume for present purposes that the Supreme Court upheld the Indians' contention that this provision created a trust in their behalf (see California & Oregon Land Co. v. Rankin, 87 F. 532 (C.C. D.Ore.1898)), requiring the United States to reimburse them for any taking of the trust property. The Court held that the plaintiffs were entitled to the fair market value of the property taken as of the date the United States acquired possession, including interest. Unlike the Klamath treaty, however, the Pillagers' compact did not reserve for them any portion of the land ceded and, as to 269, they were not thrown out of their land. As we know, one major purpose of the Government in obtaining Royce 269 was to exchange it for land owned by the Menominees, so that the latter would occupy 269. That, for this reason, the territory was to remain "Indian land" does not indicate a retention of any type of proprietary interest by the Pillagers whose concern would simply be in the character of the people living near them. Appellants rightly concede that the Government could vest title in the Menominees without permission from the Pillagers and without liability to them. A concern with who lives next door is very different from an interest in not being dispossessed from one's own land. 21 There may well have been a failure of consideration when the Menominee transfer failed, and the Pillagers may well have suffered unfair treatment insofar as they agreed to accept the sum of $19,000 because they expected the further advantage of having the Menominees as neighbors. But as the Commission said below: "* * * if the [appellants] did in fact agree to accept an unconscionably low consideration because of a desire to have friendly Menominees on the lands, they will now receive the full fair market value for the lands ceded (less the payments actually made by defendant). Thereby the plaintiffs will be fully compensated for any overreaching which they may feel occurred at the treaty negotiations." 21 Ind.Cl.Comm. 1, 5. They will, in short, receive as a result of this proceeding the amount to which they would have been entitled in 1848 if the settlement of the Menominees had never been a factor but the Government had simply wished to obtain for itself the land of Area 269. 22 For these reasons, we hold that the Commission correctly chose April 7 1848, as the valuation date and, insofar as appealed from, we uphold its order on the motion for summary judgment and the order denying appellants' motion for reconsideration. 23 Affirmed. Notes: 1 See, Treaty of October 13, 1846, 9 Stat. 878, with the Winnebagoes; Treaty of August 2, 1847, 9 Stat. 904, with the Mississippi Band of Chippewas; Treaty of August 21, 1847, 9 Stat. 908, with the Pillager Band of Chippewas (the treaty at issue here); and Treaty of October 18, 1848, 9 Stat. 952, with the Menominee Band of Wisconsin 2 The "Royce" designation comes, of course, "[f]rom Royce's maps in the 18th Annual Report of the Bureau of American Ethnology (part 2), Indian Land Cessions (1896-1897)." Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 908 n. 3, 161 Ct.Cl. 258, 261, n. 3 (1963) 3 "It is stipulated that the country hereby ceded shall be held by the United States as Indian land, until otherwise ordered by the President." 4 Mr. Rice was not a lawyer

403 Mass. 722 (1989) 532 N.E.2d 660 MASSACHUSETTS FARM BUREAU FEDERATION, INC. vs. BLUE CROSS OF MASSACHUSETTS, INC., & another.[1] Supreme Judicial Court of Massachusetts, Middlesex. September 16, 1988. January 9, 1989. Present: HENNESSEY, C.J., ABRAMS, NOLAN, LYNCH, & O'CONNOR, JJ. Edward J. Dailey (Susan M. Gretkowski with him) for the defendants. William E. Ryckman, Jr. (Charles A. Goglia, Jr., with him) for the plaintiff. O'CONNOR, J. Massachusetts Farm Bureau Federation, Inc. (Farm Bureau), is a Massachusetts nonprofit corporation with a membership comprised of Massachusetts farmers. Farm Bureau provides various services to its members including the provision of health care insurance coverage. That coverage was provided from July 1, 1972, through June 30, 1982, by the defendant corporations Blue Cross of Massachusetts, Inc., and Blue Shield of Massachusetts, Inc. (Blue Cross-Blue Shield). Farm Bureau terminated its relationship with Blue *723 Cross-Blue Shield at the close of the policy year ending June 30, 1982. At that time, $448,557 was credited to Farm Bureau as a rate stabilization fund maintained by Blue Cross-Blue Shield. When Farm Bureau did not renew the coverage for the year beginning July 1, 1982, Blue Cross-Blue Shield transferred the $448,557 to its own members' reserve. After a jury-waived trial, a judge of the Superior Court concluded that Blue Cross-Blue Shield's "attempts to work a forfeiture" of the $448,557 constituted unfair or deceptive conduct proscribed by G.L.c. 93A (1986 ed.). He also concluded that the unfair or deceptive conduct was "deliberate, willful, and knowing" and, accordingly, he awarded damages in the sum of $897,114 (2 x $448,557), interest, and attorneys' fees for a total of $1,587,303.97. Blue Cross-Blue Shield appealed, and we transferred the case to this court on our own initiative. We reverse the judgment and remand for the entry of a judgment for Blue Cross-Blue Shield. Farm Bureau's amended complaint is in five counts. Counts 1 and 4 allege violations of G.L.c. 93A. The other counts assert breach of contract and deceit. We focus on counts 1 and 4 because the judge found for Blue Cross-Blue Shield on the other counts, and Farm Bureau has not appealed. Count 1 alleges in material part as follows: There was no written contract between the parties; the only written description of their relationship is contained in their correspondence. Since 1972, Blue Cross-Blue Shield consistently represented to Farm Bureau that its rates were based solely on Farm Bureau's own experience, using such terms as "self-rated" and "the group will make its own rate." By using such terminology, Blue Cross-Blue Shield "effectively represented... that its premiums were closely related to losses and expenses." In addition, Blue Cross-Blue Shield failed to provide Farm Bureau with timely and accurate information about claims paid, administrative expenses, and surplus generated. Count 1 alleges that from July 1, 1976, through June 30, 1979, Farm Bureau paid $716,117 in premiums in excess of the losses and expenses incurred by Blue Cross-Blue Shield for those years; that Farm Bureau was not told about that *724 "surplus" until July, 1979; and that "[t]he failure of Blue Cross-Blue Shield to disclose the true nature of its rate making process and to disclose in a timely fashion the true data concerning the Farm Bureau's claims experience, combined with its misleading insistence that the Farm Bureau was rated solely by its own experience, constitute unfair and deceptive practices within the meaning of Chapter 93A and Chapter 176D of the general laws." Claiming that the "cumulative surplus" on July 1, 1980, was $728,695, Farm Bureau in count 1 seeks judgment in that amount tripled, together with attorneys' fees and interest. We turn to the allegations in count 4 of the amended complaint: Sometime in 1976, an agent of Blue Cross-Blue Shield wrote to Farm Bureau that, on July 1, 1976, Blue Cross-Blue Shield "will begin to credit your account with claims reserves which in future periods may be used as a rate stabilization fund." Count 4 alleges that that letter "was deceptive in that it tended to lead the Farm Bureau and its members to believe they would receive some kind of direct credit for excesses of premiums over losses and expenses. The Farm Bureau and its members relied upon this statement by renewing their contract for the years 1976, 1977, 1978, 1979, and 1980." Count 4 further alleges that, in July, 1979, Blue Cross-Blue Shield filed with the Commissioner of Insurance a rate stabilization fund plan which was unfair and deceptive because (1) it gave no credit to the plaintiff for "surplus" generated from 1976 to 1979, contrary to its earlier letter to Farm Bureau, and (2) the plan "imposed a reserve minimum of 25% of one year's premiums; only the excess over 25% would apply towards next year's premiums as a credit." According to count 4, after an informal meeting involving the insurance commissioner's office in January, 1980, Blue Cross-Blue Shield "acknowledged its 1976 commitment to credit reserves beginning in 1976. However, Blue Cross-Blue Shield otherwise left the rate stabilization fund plan in effect as filed." The rate stabilization fund yielded no credits to the plaintiff for the year beginning July 1, 1979, "because the [$716,117] surplus was below 25% of the premiums for 1979." Farm Bureau received no credit for the following year either. *725 We continue the description of the allegations in count 4. On November 20, 1980, Blue Cross-Blue Shield sent Farm Bureau a letter outlining a "new methodology" for the rate stabilization fund. Blue Cross-Blue Shield calculated that for the policy year ending June 30, 1980, the reserve had increased from $716,117 to $728,695, and Blue Cross-Blue Shield promised that 50% of that amount ($364,368) "would be applied to prospective premiums for the policy year beginning July 1, 1981." On March 3, 1981, Blue Cross-Blue Shield wrote Farm Bureau that the figures contained in the November 20, 1980, letter were incorrect and that, correctly calculated, the reserve for the year ending June 30, 1980, was not $728,695, but instead was $655,634. Farm Bureau protested unsuccessfully to the Commissioner of Insurance. Farm Bureau alleges in substance that Blue Cross-Blue Shield unilaterally imposed the recomputed figures on Farm Bureau and its members for the policy year beginning July 1, 1981; that Farm Bureau was not free to reject those computations or to switch its coverage to another insurer "because Blue Cross-Blue Shield has taken the position that no part of the accumulated reserve would be refunded if the Farm Bureau and its members dropped their coverage." Count 4 concludes with an assertion that the "entire course of dealing outlined above constitutes a series of unfair and deceptive practices under chapter 176D and chapter 93A," followed by a request for judgment in the sum of $728,695, tripled, plus attorneys' fees, interest, and costs. The judge made detailed findings which we summarize. Each year from 1972 through 1975, Blue Cross-Blue Shield solicited the renewal of Farm Bureau's group health insurance business with letters indicating that Farm Bureau's premiums would be based on the group's experience. In the spring of 1976, Blue Cross-Blue Shield wrote: "For the rating period effective on your July 1, 1976 anniversary date Blue Cross-Blue Shield will begin to credit your account with claims reserves which in future periods may be used as a Rate Stabilization Fund...." In the spring of 1978, Blue Cross-Blue Shield again wrote to Farm Bureau that premium prices were reached "using your past experience." *726 During the period 1975 to 1979, Farm Bureau expressed its increasing concern about rising premium costs. Blue Cross-Blue Shield wrote a letter stating that Farm Bureau's rates were among the lowest of association groups and again indicating that rates for the year beginning July 1, 1979, would be based on "your experience." In June, 1979, the judge found, Blue Cross-Blue Shield filed with the Commissioner of Insurance a plan for a "Rate Stabilization Fund." The plan provided that each year's excess premiums would be carried forward until the accumulated reserve exceeded twenty-five percent of the annual premium, at which point the amount over twenty-five percent would be used to offset prospective premiums. The plan provided that "[i]n case of cancellation any unused rate stabilization fund will be transferred to the Blue Cross-Blue Shield members reserve." Farm Bureau met with Blue Cross-Blue Shield on June 27, 1979, and renewed its coverage for the year beginning July 1, 1979. On July 3, 1979, Blue Cross-Blue Shield sent Farm Bureau a letter confirming the existence of the rate stabilization plan for the year beginning July 1, 1979. As it worked out, because of the twenty-five percent floor, the plan did not benefit Farm Bureau in the policy years beginning July 1, 1979, or July 1, 1980. In February, 1980, Blue Cross-Blue Shield informed Farm Bureau that its premium payments from July 1, 1976, through June 30, 1979, had resulted in a "members reserve" surplus of $716,117. This was the first time that Blue Cross-Blue Shield had confirmed to Farm Bureau the existence of such a substantial surplus. In April, 1980, Blue Cross-Blue Shield wrote a letter reiterating that Farm Bureau's rates were "totally dependent on its own experience" and noting that Farm Bureau's "members reserve" had almost reached the twenty-five percent threshold. In June, 1980, Farm Bureau's lawyers wrote to the Commissioner of Insurance requesting an investigation of unfair and deceptive practices under G.L.c. 176D, § 6. The commissioner declined to take any action. The judge found that before December 1, 1980, Blue Cross-Blue Shield changed the method of computing the rate stabilization *727 fund for associations and chambers of commerce. The new plan, which was filed with the Commissioner of Insurance, would allow fifty percent of the accumulated surplus to be applied to the prospective premiums each year. This straight fifty percent credit was "marked liberalization" of Blue Cross-Blue Shield's policy with respect to Farm Bureau's rate stabilization fund. The final sentence of the memorandum by which the new plan was promulgated read: "The rate stabilization fund, negative or positive, carries forward ad infinitive with the fund, negative or positive, on termination of the account becoming an asset or liability of the corporations." By a letter dated November 20, 1980, Blue Cross-Blue Shield advised Farm Bureau that the new rate stabilization plan would apply to Farm Bureau as of July 1, 1981, and that $364,348 (1/2 x $728,695) would be applied to the premium for the policy year beginning on that date. Because of subsequent recomputations, the figure was reduced first to $327,817 (1/2 x $655,634) and then to $303,246. Farm Bureau did not renew its coverage after the expiration of the policy year ending June 30, 1982. At that time, the rate stabilization fund amounted to $448,557. Blue Cross-Blue Shield transferred that money to its own members' reserve. In treating the contract claims and the claim sounding in common law tort for deceit, the judge concluded that Blue Cross-Blue Shield's statements to Farm Bureau that its premiums would be "self-rated," based "on its own experience" and the like were not sufficiently definite to be enforceable or actionable. The judge observed that "[w]hile the phrases connote that the premiums will be established by some reference to prior losses, many other factors affect rates: defendant's expenses, reserves for late claims and length of time to be carried, minimum and maximum limits, state tax multipliers, defendant's profit if any, and, effect of cancellation." (Footnote omitted.) The judge also noted that the term "rate stabilization plan" "does not have a single fixed meaning, but is susceptible to negotiation in many variations." The judge was "not persuaded ... that defendant intended not to make plaintiff's rates retrospective based on experience" (emphasis added) and *728 therefore found no knowing falsehood on which to base a theory of fraud, deceit, or misrepresentation. Having concluded that Farm Bureau was not entitled to recover for breach of contract or in tort for fraud, misrepresentation, or deceit,[2] the judge then focused on G.L.c. 93A as providing Farm Bureau with a right of recovery. The judge reasoned that, while terms such as "self-rating" are imprecise, they nevertheless "connote that premiums will be adjusted so that defendant will make only a reasonable profit on the business, not that substantial surpluses will accumulate and be carried forward." Here, the judge found, the surplus had grown to $716,177 by May, 1979, and there was no evidence that Farm Bureau was aware of that. Turning, then, to the two rate stabilization plans, the judge noted that, in the first plan, Blue Cross-Blue Shield stated plainly that "in case of cancellation any unused rate stabilization fund will be transferred to the Blue Cross-Blue Shield members reserve." He contrasted with that "clear and easily understood language," the final sentence of the second rate stabilization plan: "the Rate Stabilization Fund, negative or positive, carries forward ad infinitive with the fund, negative or positive, on termination of the account becoming an asset or liability of the corporations." The judge characterized that sentence as "totally unintelligible," noting that "Farm Bureau is a corporation as are other associations and chambers of commerce, and the plan does not define `the corporations' to which it appears the fund should go `on termination' of `the account.'" The judge concluded that, by the time Farm Bureau ended its association with Blue Cross-Blue Shield, Farm Bureau "had a right to believe it had a vested interest in 50% of the surplus and [rate stabilization plan] credits. Had defendant meant the same as the sentence of the first [rate stabilization plan], it could have said so." *729 The judge "infer[red] the switch from [the] clear language of [the first rate stabilization plan] to the gibberish of [the second plan] was deliberate, willful, and knowing." He concluded: "The dealings between plaintiff and defendant were clearly business to business.... While I cannot quite find that defendant's failure to disclose to plaintiff the amassing of substantial surpluses in the years July 1976 to June 1979 was an unfair or deceptive act, I conclude, against that background, that defendant's attempts to work a forfeiture, upon plaintiff's failing to renew in June, 1982, of $448,557 based on the unintelligible last sentence of [the second rate stabilization plan] was. I therefore award plaintiff double the $448,557, or $897,114 plus interest and attorney's fees." General Laws c. 93A, §§ 2 and 11 (1986 ed.), make unlawful "unfair or deceptive acts or practices in the conduct of any trade or commerce" between two businesses.[3] An act or practice may be "unfair" within the statutory meaning without being deceptive or fraudulent. Service Publications, Inc. v. Goverman, 396 Mass. 567, 578 (1986). Furthermore, a violation of G.L.c. 93A, § 11, need not be premised on a violation of an independent common law or statutory duty. Linthicum v. Archambault, 379 Mass. 381, 383 (1979). Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693 (1979). Conduct may violate § 11 if it is "within `at least the penumbra of some common-law, statutory, or other established concept of unfairness ... [or] is immoral, unethical, oppressive, or unscrupulous.'" Zayre Corp. v. Computer Syss. of Am., Inc., 24 Mass. App. Ct. 559, 570 (1987), quoting Levings v. Forbes & Wallace, Inc., *730 8 Mass. App. Ct. 498, 503-504 (1979), S.C., 12 Mass. App. Ct. 990 (1981). See Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 777 (1980). The judge's findings establish that the defendants' acts and practices were free from fraud and deceit. He concluded, nevertheless, that "against [the] background" of "the amassing of substantial surpluses in the years July, 1976 to June 1979" the "defendant's attempts to work a forfeiture, upon plaintiff's failing to renew in June 1982, of $448,557 based on the unintelligible last sentence of [the second rate stabilization plan] was [unfair]." We need not decide whether the judge was warranted in concluding that the last sentence of the second rate stabilization plan, stating that "the Rate Stabilization Fund, negative or positive, carries forward ad infinitive with the fund, negative or positive, on termination of the account becoming an asset or liability of the corporations," was unintelligible gibberish as the judge characterized it, or whether he was warranted in finding that between 1976 and 1979 the defendants "amass[ed] ... substantial surpluses."[4] Even if we assume that the judge's finding relative to the last sentence of the second plan, a finding critical to his decision, was warranted, Farm Bureau is nevertheless not entitled to recover because there was no evidence that would warrant a further finding that there was a causal relationship between the "unintelligible" statement and any loss claimed by Farm Bureau. In the absence of a causal relationship between the alleged unfair acts and the claimed loss, there can be no recovery. See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 850 (1983); Kohl v. Silver *731 Lake Motors, Inc., 369 Mass. 795, 800 (1976). Farm Bureau makes no claim in its amended complaint that it misunderstood the terms of the second rate plan or that it expected that, upon termination of coverage, it would be entitled to any positive balance in the rate stabilization fund, and there was no evidence of any lack of understanding in that regard. To the contrary, James Slattery, Farm Bureau's administrator, testified that he understood that the first rate stabilization plan was to be replaced by another plan and that, under the second plan, "fifty percent would be applied against the rates." On inquiry by the judge as to how he understood the last sentence of the second plan, Slattery testified: "We understood at that point that it was Blue Cross's position that they were going to keep whatever funds had accumulated over the years in that rate stabilization fund if we terminated." The court asked, "Did you so understand that sentence?" and Slattery answered, "yes." We conclude that Farm Bureau is not entitled to recover on the single theory relied on by the judge, and, in view of the judge's findings, we perceive no other basis for recovery. Therefore, we reverse the judgment and remand for the entry of judgment for the defendants. So ordered. NOTES [1] Blue Shield of Massachusetts, Inc. [2] Because Farm Bureau has not appealed from the judgment in favor of Blue Cross-Blue Shield on the breach of contract count and common law tort for deceit, there is no occasion for us to consider those rulings. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n. 5 (1977). See also Mass. R.A.P. 16 (a) (4), as amended, 367 Mass. 919 (1975). [3] Blue Cross-Blue Shield cites in its brief language from Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 504 (1979), to the effect that in cases of dealings between businesses, liability under c. 93A requires "a level of rascality that would raise an eyebrow of someone inured to the rough and tumble of the world of commerce." Blue Cross-Blue Shield asserts that since Farm Bureau is a business, "with a background of knowledge, resources, and experience in the insurance industry," there is no reason to expect Blue Cross-Blue Shield "to modify [its] standard practices for dealing with major business accounts." In short, Blue Cross-Blue Shield's "standard practices" do not descend to the level of "rascality" necessary for liability. [4] Presumably, the fund would be positive or negative depending on whether paid-in premiums exceeded or did not exceed claims losses, administrative expenses, and other charges. It is at least arguable that the sentence in question means that the fund balance whether positive or negative, continues "ad infinitum," that is, without end or limit, and "on termination of the account [it becomes] an asset or liability of the corporations [Blue Cross of Massachusetts, Inc., and Blue Shield of Massachusetts, Inc.]." The amount of $728,695, accumulated over several years, was less than twenty-five percent of one year's premiums.

Third District Court of Appeal State of Florida Opinion filed October 14, 2015. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D13-189 Lower Tribunal No. 04-11283-B ________________ Javor Williams, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge. Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, and Daniel Tibbitt, for appellant. Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee. Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA, SALTER, EMAS, FERNANDEZ, LOGUE, and SCALES, JJ. En Banc (Court’s Own Motion)  PER CURIAM. Javor Williams appeals a circuit court order vacating his open plea and all of his convictions and sentences under a three-count information originally filed in 2004. Williams maintains that the trial court was required to vacate only the plea of guilt, judgment, and sentence on count 1 of the three original counts, based on a claim of ineffective assistance of counsel, and that the trial court erred when, instead, it vacated the plea as to all three counts. We have jurisdiction to consider this appeal. See Taylor v. State, 140 So. 3d 526 (Fla. 2014). We recede from this Court’s earlier opinion in Williams v. State, 83 So. 3d 906 (Williams II) (Fla. 3d DCA 2012), and our analysis in that opinion regarding the prejudice alleged to have resulted from the claimed ineffectiveness of Williams’ counsel. The Criminal Incidents The State’s proffer at the time of Williams’ plea, the stipulation by Williams during his colloquy, and the victim’s testimony at a deposition and at the sentencing hearing established the operative facts. In April 2004, Williams and his two co-defendants followed the victim’s car in their own vehicle as the victim drove from her grandfather’s store to her home. When the victim entered her driveway, the defendants blocked her car with their own car. Williams and one of the co-defendants got out of their car, and Williams 2 placed a firearm next to the victim’s face. Williams repeatedly demanded that she surrender her bag, but the victim did not have the bag in her hand and did not understand what was being demanded. The victim attempted to push back, and Williams then intentionally shot the victim in her abdomen. The Charges, Plea, and Post-Conviction Procedural History Williams and the two co-defendants were charged by information in 2004 with attempted felony murder, attempted armed robbery, and conspiracy to commit armed robbery. The attempted felony murder charge, count 1, later became the focus of the post-conviction pleadings. In pertinent part, count 1 alleged: [Co-defendants and Williams, on or about the crime date, in Miami- Dade County, Florida] did unlawfully and feloniously perpetrate or attempt to perpetrate a felony, to wit: robbery, and did commit, aid or abet an intentional act that is not an essential element of the felony and that could, but does not cause the death of another, to wit: [the victim], by POINTING A FIREARM AT [the victim], and during the course of the commission of the offense, said defendant discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon [the victim], a human being in violation of 782.051(1) and 775.087 & 777.011, Florida Statutes . . . . Attempted armed robbery was alleged to be the underlying felony for the attempted felony murder charge. Williams entered an open plea to all three counts in 2008 and was sentenced to: 50 years, with a minimum mandatory term of 25 years, followed by ten years of probation, on the attempted felony murder charge (count 1); and fifteen years each, to be served concurrently with the sentence on 3 count 1 and each other, on the attempted armed robbery and conspiracy to commit armed robbery charges (counts 2 and 3). As noted previously, Williams’ counsel stipulated to a factual basis for the plea based on his discovery and investigation in the case. Additionally, at the time of the sentencing the State proffered expert testimony that Williams’ firearm was purposefully discharged, based on the injuries to her abdomen and her internal organs. Williams’ plea and sentence were affirmed on direct appeal. Williams v. State, 36 So. 3d 109 (Williams I) (Fla. 3d DCA 2009). In 2010, Williams filed a pro se post-conviction motion under Florida Rule of Criminal Procedure 3.850 alleging, among other things, ineffective assistance of counsel for allowing him to plead guilty to an illegal information. Williams asserted that the intentional act relied upon for the attempted felony murder charge in count 1 (i.e., that Williams pointed a firearm at the victim), was the same act alleged in (and an essential element of) the attempted armed robbery in count 2. Williams’ pro se motion was denied by the trial court, but on appeal (in Williams II), this Court reversed and remanded. We concluded that Williams’ claim of ineffectiveness was well taken “[b]ecause the information filed against [Williams] and the facts proffered to support the information used the same act for both attempted felony murder and the underlying attempted armed robbery.” Williams II, 83 So. 3d at 907; see also § 782.051(1), Fla. Stat. (2004) (Attempted 4 felony murder statute provides that “[a]ny person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life . . . .”); Battle v. State, 837 So. 2d 1063 (Fla. 2d DCA 2003), approved, 911 So. 2d 85 (Fla. 2005) (holding that the offense of attempted felony murder requires proof of an intentional act that is not an essential element of the underlying felony). The analysis in Williams II did not clearly differentiate between the two perceived problems in the original information against Williams: (1) count 1, attempted felony murder, was arguably deficient because it failed to allege an intentional criminal act that was not an essential element of the attempted armed robbery charge (count 2),1 and (2) the information arguably violated double jeopardy on its face in charging counts 1 and 2.2 The analysis concluded: 1 Our analysis on this issue in Williams II cited Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003). Coicou was quashed and remanded on other grounds in Coicou v. State, 39 So. 3d 237 (Fla. 2010). 2 Our opinion in Williams II addressed double jeopardy only tangentially: “Also, unbargained-for pleas do not waive double jeopardy violations. See Novaton v. State, 634 So. 2d 607 (Fla. 1994).” Williams II, 83 So. 3d at 907. On remand, and in this appeal, Williams has not argued a double jeopardy claim. Instead, he has argued that the information is fatally defective as to count 1 because it does not allege, and the State could not prove, an intentional act that is not an essential element of the robbery. Williams has asked the trial court and this Court to 5  Finally, the State contends that [Williams] suffered no prejudice from his counsel’s failure, if any, because the State could simply have amended the information to correct any defect. This argument is unpersuasive. The facts presented below cannot support both a charge of attempted felony murder and attempted armed robbery, and no amendment of the information can correct this defect. Williams, 83 So. 3d at 908. We then remanded for a determination of whether, and the extent to which, Williams was prejudiced by his counsel’s ineffectiveness. Id. We appointed the public defender for the proceedings on remand. On remand, the trial court determined: Based therefore on the evidence presented and the argument of counsel, this Court finds that [Williams] was prejudiced by his counsel’s ineffectiveness. The Court further finds on the authority of Abbate v. State, 82 So. 3d 886 (Fla. 4th DCA 2011), that the proper remedy here is to vacate the judgment and sentence on all counts. The prosecutor may resume its prosecution of the Defendant on any charges deemed appropriate and legal. Williams’ original pro se post-conviction motion did not specify that the relief sought was limited to the vacation of the judgment and sentence on count 1 alone, nor did he specifically request that the plea, judgments and sentences on counts 2 and 3 remain in force. In the present appeal, however, and throughout the 2012 evidentiary hearing in the trial court on remand following Williams II, Williams’ appointed counsel has maintained that the open plea, judgments, and uphold, and not to alter, his plea, conviction, and sentences for counts 2 and 3. 6 sentences should not have been vacated on all three counts, and that only the judgment and sentence on count 1 should have been vacated. Following oral argument in the present appeal, and on our own motion, we are addressing the post-conviction issues in Williams’ case en banc. Analysis This is an unusual case with an unusual post-conviction history. Williams’ plea was open to the court on all three of the charges in the original information. He was colloquied in detail regarding the charges, the State’s proffered proof, and his legal representation. The victim testified in a deposition and again at the sentencing hearing, providing a detailed account of the crimes committed by Williams and his co-defendants. Although the information failed to allege an intentional act in count 1 that is not an essential element of the robbery, at best this made the information defective and subject to a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), or a demand for a bill of particulars under Rule 3.140(n). Had Williams’ counsel taken such steps, however, the State could have amended the information3 or supplied the particulars to support sufficient charges. Count 1, which gratuitously alleged that Williams pointed a firearm at the victim,4 could 3 Rule 3.140(j) permits the amendment of an information at any time prior to trial to correct formal defects. 7 have been deleted or could have been replaced by an allegation that he intentionally shot the victim with a firearm.5 Either of these measures would have been sufficient to state a valid charge supported by the victim’s testimony and the State’s proffered evidence at the plea colloquy, which included an expert’s opinion that the discharge of the firearm was intentional and not accidental. The gratuitous allegation in count 1 that Williams pointed a firearm at the victim does not vitiate the legally sufficient allegations in that count of attempted felony murder under section 782.051(1), Florida Statutes (2004): Attempted felony murder.— (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree . . . . The attempted armed robbery charged in count 2 is a felony enumerated in section 782.04(3), and the later act of shooting the victim in the abdomen is an intentional act separate and distinct from that of pointing the firearm at the victim’s head and demanding that she hand over her bag. State v. Blanton, 821 So. 2d 440 4 Although the allegation of “pointing a firearm at [the victim],” was an essential element of the attempted robbery charge (count 2), the State was not required, in charging attempted felony murder, to allege the specific intentional act that was not an essential element of the attempted robbery. See infra at 9. 5 Count 1 alleges that Williams “discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted on [the victim],” but it does not allege that Williams intentionally shot the victim with the firearm. 8 (Fla. 5th DCA 2002). This allegation satisfies the “not an essential element of the felony” requirement of the attempted felony murder statute quoted above. The sufficiency of count 1 is also demonstrated by the standard jury instruction regarding attempted felony murder. The three requisite elements of the crime are detailed in Florida Standard Jury Instruction (Criminal) 6.3, as approved by the Supreme Court of Florida in 2007:6 To prove the crime of Attempted Felony Murder, the State must prove the following three elements beyond a reasonable doubt: 1. (Defendant) [committed] [attempted to commit] a (crime alleged). 2. While engaged in the [commission] [attempted commission] . . . of (crime alleged), the defendant [committed] [aided or abetted] an intentional act that is not an essential element of (crime alleged). 3. This intentional act could have but did not cause the death of (victim). Williams was on notice that the State intended to prove that he shot the victim, as that is alleged in the same count 1 and was also elicited from the victim at her deposition and at the sentencing hearing. This record conclusively refutes the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984). At the sentencing hearing, the State also proffered a basis upon which it could have proven attempted felony murder, including expert testimony that 6 Battle v. State, 911 So. 2d 85 (Fla. 2005). 9 Williams shot his firearm intentionally and not accidentally. Williams and his counsel stipulated that the proffer, if proven, provided a factual basis for the plea, and the trial court then found the proffered factual basis sufficient to establish the crime of attempted felony murder. Finally, the burden of establishing fundamental error in a defective information cannot be met in Williams’ case, because the information did not “wholly fail to state a crime.” Count 1 of the information not only tracked the statutory language (though including the unnecessary phrase, “by pointing a firearm at the [victim]”), it also cited the specific statute placing Williams on notice of the nature and elements of the charge of attempted felony murder. See Duarte v. State, 59 So. 3d 313, 315 (Fla. 3d DCA 2011); Lawshea v. State, 99 So. 3d 603, 606 (Fla. 2d DCA 2012); Figueroa v. State, 84 So. 3d 1158, 1161 (Fla. 2d DCA 2012). Conclusion We recede from our conclusion in Williams II that “no amendment of the information can correct this defect,” and from our remand to provide Williams “an opportunity to prove that he was prejudiced by his counsel’s ineffectiveness.” We vacate the trial court order finding prejudice and vacating Williams’ plea on all three counts. Even if trial counsel’s failure to challenge the attempted felony murder count could be deemed deficient performance under the Strickland 10 standard, Williams cannot establish the requisite prejudice. Under the facts and procedural posture of the case, there is no “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 695. Indeed, had trial counsel properly and timely challenged the improperly-pled attempted felony murder count (the failure of which Williams claims constitutes trial counsel’s deficient performance), it is clear that the outcome would have been the same—an open plea to an amended charge of attempted felony murder that alleged Williams’ intentional act of shooting the victim, an allegation that is not an essential element of the attempted robbery and is fully supported by the record. We thus affirm the denial of Williams’ original motion for post-conviction relief. 11 

27 B.R. 713 (1983) In re Philip Francis DEBEAUBIEN, Jr. and wife, Mildred Susan Blevins Marlow Debeaubien, d/b/a Continental Trading Co., Eldorado Trailer Co. and Sign Distributors, Debtors. UNITED AMERICAN BANK IN WASHINGTON COUNTY, Plaintiff, v. Philip Francis DEBEAUBIEN, Jr., and wife, Mildred Susan Blevins Marlow Debeaubien, d/b/a Continental Trading Co., Eldorado Trailer Co. and Sign Distributors; United States of America; William L. Lancaster, III, Trustee; Elizabethton Federal Savings & Loan Association, Defendants. Bankruptcy No. 3-82-00777, Adv. No. 3-82-0771. United States Bankruptcy Court, E.D. Tennessee. February 7, 1983. Bryant, Price, Brandt, Fox, Booze & Beeson, Earl R. Booze, Johnson City, Tenn., for plaintiff. Johnson & Davis, Walter Lee Davis, Jr., Johnson City, Tenn., for defendants Philip Debeaubien and Mildred Debeaubien. Guy W. Blackwell, Greeneville, Tenn., for defendant United States. William L. Lancaster, III, Johnson City, Tenn., trustee. Allen, Nelson & Bowers, John L. Bowers, Jr., Elizabethton, Tenn., for defendant Elizabethton Federal Sav. & Loan Ass'n. MEMORANDUM CLIVE W. BARE, Bankruptcy Judge. The jurisdiction of this court over both the subject matter in this case and the United States of America is at issue. Plaintiff United American Bank in Washington County[1] alleges the court has jurisdiction over the subject matter and the United States, pursuant to the provisions of the Bankruptcy Code and 26 U.S.C.A. § 7426(a)(1) (1967).[2] Citing § 505[3] of the *714 Bankruptcy Code, plaintiff requests the court to determine the tax liability to the United States of the debtors and if an obligation is owing to further determine whether that obligation has been discharged in bankruptcy.[4] Plaintiff also requests the court to void a prepetition IRS lien enforcement sale of the debtors' marital residence. The United States contends its sovereign immunity has not been waived under Bankruptcy Code § 106[5] in this case. The United States also denies that 26 U.S.C.A. § 7426 (1967) confers jurisdiction upon this court. This Memorandum is limited to the question of jurisdiction raised by the motion to dismiss filed by the United States. Findings of fact relevant to this question are based on uncontroverted allegations. I The debtors, Philip Debeaubien and Susan Debeaubien, filed their joint chapter 7 petition on June 1, 1982. The complaint of plaintiff United American Bank in Washington County (Bank) against the debtors and the other defendants was filed on August 27, 1982. The subject matter of this dispute involves the debtors' marital residence, located in Washington County. The marital residence of the debtors is subject to a first deed of trust in favor of defendant Elizabethton Federal Savings & Loan Association. This first deed of trust, duly recorded on January 18, 1979, was executed by the Clyatts, remote grantors of the debtors. The Clyatts conveyed the disputed property to Continental Trading Co., a trade name under which Philip Debeaubien formerly did business, on a date undisclosed in the present record. On September 3, 1980, Internal Revenue Service filed a notice of federal tax lien in the Register's Office of Washington County against the property of Philip F. Debeaubien and Constance L. Debeaubien, the former wife of the debtor. On September 22, 1980, Continental Trading Co. conveyed the property in question to the debtors. On October 7, 1980, the debtors executed their note for $17,726.26 plus interest to the plaintiff Bank. Contemporaneously with the making of their note, the debtors executed a second deed of trust to the Bank to secure the payment of their $17,726.26 note. This second deed of trust was duly filed for record on October 29, 1980. On or about May 17, 1982, agents of the Internal Revenue Service sold the marital residence of the debtors at public auction in an attempt to collect the unpaid assessment against Philip Debeaubien and Constance Debeaubien. (The amount of the unpaid assessment stated in the September 3, 1980, notice of federal tax lien is $45,006.44, according to the Bank.) The property was sold to the United States on the basis of a bid of $4,000.00. The Bank contends its second deed of trust is entitled to priority vis-a-vis the federal tax lien despite the fact that the *715 notice of the federal tax lien was recorded prior in time. Citing 26 U.S.C.A. § 6323 (1967), the Bank contends its lien is a purchase money deed of trust entitled to priority. The Bank requests the court to find its second deed of trust has priority vis-a-vis the federal tax lien and to declare the IRS sale of the debtors' marital residence void, since the sale was not conducted subject to the Bank's second deed of trust. Alternatively, alleging the debtors own the marital residence as tenants by the entirety, the Bank asks the court to find the IRS levy and sale affected only the survivorship interest of the debtor Philip Debeaubien. The Bank also requests this court, as authorized by Bankruptcy Code § 505, to determine the liability of Philip Debeaubien with respect to the taxes described in the notice of federal tax lien and to further determine the tax obligation is dischargeable. The debtors deny they procured the $17,726.26 loan from the Bank to enable them to purchase their marital residence.[6] The debtors also deny the Bank's allegations that the IRS sale should have been held subject to the Bank's deed of trust and that the sale was void. It is further denied by the debtors that the survivorship interest of Philip Debeaubien was the only interest in the debtors' marital residence against which IRS could legitimately levy and sell. The United States maintains the waiver of sovereign immunity provided by Bankruptcy Code § 106 is limited to claims against the government arising from the same transaction or occurrence which produced the government's claim. Since no claim has been filed on its behalf, the United States insists there has been no waiver of its sovereign immunity in this case. The United States further insists 26 U.S.C.A. § 7426(a)(1) (1967) confers jurisdiction of plaintiff's dispute with IRS upon the district court, not the bankruptcy court. II The legislative history of § 106(c) of the Bankruptcy Code refutes the assertion of the United States that the waiver of sovereign immunity afforded under § 106 is limited to claims against the government arising from the same occurrence or transaction producing the government's claim. Section 106(c) relating to sovereign immunity is new. . . . The provision is included to comply with the requirement in case law that an express waiver of sovereign immunity, is required in order to be effective. Section 106(c) codifies in (sic) re Gwilliam, 519 F.2d 407 (9th Cir. 1975), and in (sic) re Dolard, 519 F.2d 282 (9th Cir.1975), permitting the bankruptcy court to determine the amount and dischargeability of tax liabilities owing by the debtor or the estate prior to or during a bankruptcy case whether or not the governmental unit to which such taxes are owed files a proof of claim. Except as provided in sections 106(a) and (b), subsection (c) is not limited to those issues, but permits the bankruptcy court to bind governmental units on other matters as well. For example, section 106(c) permits a trustee or debtor in possession to assert avoiding powers under title 11 against a governmental unit; contrary language in the House report to H.R. 8200 is thereby overruled. 124 Cong.Rec. S 17406 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 6505, 6509. Remke, Inc. v. United States, 5 B.R. 299 (Bkrtcy.E.D.Mich.1980), involved a motion to dismiss an action to recover an alleged preferential transfer to IRS. The government contended it was insulated from suit under the doctrine of sovereign immunity because it had not filed a proof of claim. *716 Judge Brody rejected the government's contention in view of the congressional intent expressed in the legislative history of § 106(c). The jurisdiction of this court to adjudicate the dispute between the Bank and IRS over the priority of their competing interests and the legitimacy of the IRS levy and sale is questionable, even aside from any consideration of the holding in Northern Pipeline Constr. v. Marathon Pipe Line Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The bankruptcy trustee's report of no distribution was filed on December 6, 1982. This report contains the following statement: "The trustee further reports that by the filing of this report the trustee has abandoned as burdensome assets or (sic) of inconsequential value to the estate all scheduled property not heretofore abandoned." Thus, the subject property of the dispute between the Bank and IRS, the debtors' marital residence, is no longer property of the debtors' estate. (Although the IRS sale of the debtors' marital residence preceded the commencement of their bankruptcy case, the property of their bankruptcy estate included a right of redemption, provided under 26 U.S.C.A. § 6337(b) (1967).) Maddox v. United States (In re Lunsford), 12 B.R. 762 (Bkrtcy.M.D.Ala.1981), involved a priority dispute between the debtor's landlord, Maddox, and Farmers Home Administration (FmHA). Maddox sought to recover proceeds paid by the debtor to FmHA[7] from crops grown on property he had leased to the debtor. FmHA claimed priority to the crop proceeds on the basis of a perfected security interest in the debtor's crops. Maddox contended he had a landlord's lien entitled to priority under state law. The court, after observing the proceeds were neither property of the estate nor claimed by the trustee, concluded it did not have subject matter jurisdiction and granted the government's motion to dismiss.[8] In re Bernd, 20 B.R. 338 (Bkrtcy.E.D.Wis. 1982), involved a priority dispute between Energy Shed, Inc. and the United States Small Business Administration (SBA). The proceeds held by SBA from the sale of inventory, abandoned by the trustee in bankruptcy, were the subject of the conflicting claims. The bankruptcy case had been closed; the administration of the case could not possibly have been affected by the outcome of the dispute between Energy Shed, Inc. and SBA; and other courts had jurisdiction of the priority conflict. These factors convinced Judge Shapiro he should abstain from exercising jurisdiction. See 28 U.S.C.A. § 1471(d) (Supp.1982).[9] Although the bankruptcy case of the debtors is not closed, the outcome of the dispute in the instant case between the Bank and IRS is inconsequential to the administration of the debtors' estate. The property which is the subject of the controversy is no longer a part of the debtors' estate. Considering the aggregate amount of the liens against the property, there is no equity available for exemption by the debtors. Finally, 26 U.S.C.A. § 7426 (1967) permits commencement in the district court of a challenge to an IRS levy and sale by a party claiming a lien or other interest in the property levied upon by IRS. Considering these factors, the court finds it unnecessary to determine whether it has jurisdiction of the Bank's challenge to the *717 legitimacy of the IRS levy and sale of the debtors' marital residence. Assuming arguendo the court has jurisdiction over the controversy, it is appropriate for the court to abstain from adjudicating that aspect of the instant case. The complaint of the Bank shall be dismissed. The dismissal will not prejudice any right of the debtors to have this court determine their tax liability, pursuant to 11 U.S.C.A. § 505 (1979) or any right of the debtors or the United States to seek a determination of nondischargeability of the debtors' federal tax obligations. 11 U.S.C.A. § 523(a)(1) (1979). NOTES [1] Plaintiff is presently doing business as City & County Bank of Washington County. [2] Civil actions by persons other than taxpayers (a) Actions permitted.— (1) Wrongful levy.—If a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States. 26 U.S.C.A. § 7426(a)(1) (1967). [3] Determination of tax liability (a)(1) Except as provided in paragraph (2) of this subsection, the [bankruptcy] court may determine the amount or legality of any tax, any fine or penalty relating to a tax, or any addition to tax, whether or not previously assessed, whether or not paid, and whether or not contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction. (2) The court may not so determine— (A) the amount or legality of a tax, fine, penalty, or addition to tax if such amount or legality was contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction before the commencement of the case under this title; or (B) any right of the estate to a tax refund, before the earlier of— (i) 120 days after the trustee properly requests such refund from the governmental unit from which such refund is claimed; and (ii) a determination by such governmental unit of such request. 11 U.S.C.A. § 505(a) (1979). [4] The order of discharge of debtors was entered by the court on September 14, 1982. [5] Waiver of sovereign immunity (a) A governmental unit is deemed to have waived sovereign immunity with respect to any claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which such governmental unit's claim arose. . . . (c) Except as provided in subsections (a) and (b) of this section and notwithstanding any assertion of sovereign immunity— (1) a provision of this title that contains "creditor", "entity", or "governmental unit" applies to governmental units; and (2) a determination by the court of an issue arising under such a provision binds governmental units. 11 U.S.C.A. § 106 (1979). [6] The debtors assert they purchased their marital residence from Robert M. Griffith, Jr. and that the "Promissory Note, Security Agreement, and Disclosure Statement" of the Bank reflects the proceeds of the loan to them were applied in substantial part to pay off loan # XXXXXXXXXX, which was a loan from the Bank to Griffith. A determination of Griffith's former interest, if any, in the debtor's marital residence is not a necessary predicate to resolving the jurisdiction issue before the court. [7] The challenged payment preceded the bankruptcy filing. [8] The holding of In re Lunsford was followed in a similar FmHA case involving a priority dispute between FmHA and a bank, claiming priority under a subordination agreement, in United States v. Bottles, 20 B.R. 947 (Bkrtcy.C.D.Ill. 1982). The bankruptcy court in Bottles noted the adjudication in state court of the priority dispute between FmHA and the bank would not affect the administration of the estate. The property at issue in Bottles had also been abandoned by the trustee in bankruptcy. [9] Subsection (b) or (c) of this section does not prevent a district court or a bankruptcy court, in the interest of justice, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. 28 U.S.C.A. § 1471(d) (Supp.1982).

91 F.3d 162 Maddixv.Burton* NO. 95-6845 United States Court of Appeals,Eleventh Circuit. July 05, 1996 1 Appeal From: N.D.Ala., No. 93-00498-CV-N-M 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

18 So.3d 545 (2009) KEYES v. McCARTHY. No. 5D08-3570. District Court of Appeal of Florida, Fifth District. September 22, 2009. Decision without published opinion Affirmed.

Filed 8/21/13 CERTIFIED FOR PUBLICATION SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO APPELLATE DIVISION THE PEOPLE OF THE STATE OF ) Appellate No. APP-12-007357 CALIFORNIA, ) ) Court No. 11031999 Plaintiff/Respondent, ) ) FINAL JUDGMENT ON APPEAL vs. ) ) TIM LEE ESTES, ) ) Defendant/Appellant. ) ) This matter came on for hearing on May 10, 2013. After considering the evidence, arguments, and applicable law, on July 23, 2013 we issued a judgment affirming-in-part and reversing-in-part the trial court’s judgment. Pursuant to California Rule of Court 8.888, we then modified that judgment to add the below “Introduction” and “Factual Background” sections to the original text, in preparation for publication of this final judgment. INTRODUCTION Tim Lee Estes appeals after having been found strictly liable on a charge of violating California Fish and Game Code § 8278(a) for the taking of undersized Dungeness crabs, and sentenced to a probationary term with fines, fees and penalties, and the forfeiture of $47,000. On 1 appeal, Estes asserts two bases of reversible error: 1) the trial court ruled and instructed the jury that a charge of violating § 8278(a) is a strict liability offense not requiring criminal intent or criminal negligence; and 2) the forfeiture in the amount of $47,000 from the proceeds of his legal Dungeness crab catch constitutes an excessive fine in violation of the Eighth Amendment to the United States Constitution. In this case of first impression as to the mental state required to prove a misdemeanor violation of § 8278(a), we hold that the trial court properly determined the taking of undersized Dungeness crabs in violation of this section to be a public welfare offense not requiring proof of a mens rea. However, we also hold that under the circumstances of this case, the $47,000 forfeiture was excessive and disproportionate to the harm Estes caused in violation of the Eighth Amendment. FACTUAL BACKGROUND Estes is a commercial fisherman who has operated a commercial crab boat for twenty-one years. During the 2010-2011 Dungeness crab season Estes owned and operated the commercial fishing vessel, JesAn. As captain, Estes navigates the vessel from the wheelhouse which is located one level up from the deck where the crab are measured on a sorting table by the crew. Although he has installed a camera to communicate with the crew, Estes is unable to personally observe the measurement of the crabs while directing the placement of the crab pots and navigating the vessel. Estes does instruct the crew on the proper measurement of crab and requires each crew member to sign a contract which contains a provision that the crew member is liable for all fines and penalties associated with the taking of undersized crab. The crew members are also 2 provided with gauges to measure the crabs and an experienced crew member supervises the crew. On the morning of November 23, 2010, Estes and his crew offloaded their crab harvest for the JesAn at Caito Fisheries on Pier 45 in the City and County of San Francisco. Wardens Bryan Patrick and William O’Brien of the California Department of Fish and Game arrived to inspect the JesAn and its crab harvest. Warden Patrick inspected the commercial fishing licenses issued to Estes and his crew, Estes’ Dungeness crab permit and the boat registration for the JesAn, all of which were found to be in order. Meanwhile, O’Brien made a brief inspection of the crab catch and found some “short” crabs. Section 8278 prohibits the taking of any Dungeness crab less than six and one-quarter inches in breadth, except that no more than one percent of the load of Dungeness crabs may be less than six and one-quarter inches in breadth, but not less than five and three-quarters in breadth.1 Patrick joined O’Brien to look at the catch and the wardens found an uncommonly high percentage of illegal crabs. Based on these initial findings, Patrick and O’Brien determined that they would need to check the entire load and called in additional wardens to assist in measuring over 40,000 pounds of crab. Estes was cooperative and assisted the wardens by providing them with the gauges to measure the crabs. Ultimately, the wardens determined that 991 pounds of the total load of 44,943 pounds, or approximately 2.2 percent of the total load, was undersized. The undersized crabs were returned to the San Francisco Bay. Estes was cited for possession of a load containing more than one percent undersized Dungeness crab. The 1 Fish and Game Code § 8278 reads in its entirety: “(a) Except as otherwise provided, no Dungeness crab less than six and one-quarter (6 ¼) inches in breadth, and no female Dungeness crab, may be taken, possessed, bought, or sold, except that not more than 1 percent in number of any load or lot of Dungeness crabs may be less than six and one-quarter (6 ¼) inches in breadth but not less than five and three-quarters (5 ¾) inches in breadth. (b) Dungeness crab shall be measured by the shortest distance through the body from edge of shell to edge of shell directly from front of points (lateral spines).” 3 wardens sold the remaining 43,952 pounds of legal crabs at market rate as required by Fish and Game Code § 12160. The net total of this sale, in the amount of $75,962.24, was placed in the Fish and Game Preservation Fund. In the trial that followed, the parties briefed the court and argued the mental intent required to show a misdemeanor violation of § 8278(a). Relying on the discussion and holding of the California Supreme Court in People v. King (2007) 38 Cal.4th 617, the trial court determined the statute to state a public welfare crime in that its purpose is to protect the health and safety of the public. As such the trial court found the statute to be primarily regulatory in nature, and not one for punishment or correction, and, therefore, strict liability is the appropriate standard. Accordingly, the trial court instructed the jury that the misdemeanor charge of violating Fish and Game Code § 8278(a) is a strict liability crime using CALCRIM instruction 254. On March 15, 2012, the jury returned a verdict of guilty for this charge. Thereafter, on April 20, 2012, the trial judge sentenced Estes to a suspended sentence of three years unsupervised probation, a fine in the amount of $1,000, plus the mandatory fines, fees and penalties, and also forfeiture of $47,000.2 DISCUSSION A. Strict Liability The language of Fish and Game Code § 8278 does not indicate what culpable mental state the statute requires. However, as the California Supreme Court in People v. King, supra, 38 Cal.4th at 623, noted the fact that no mental state is specifically mentioned does not mean that the legislature did not intend to require one. Citing In re Jorge M. (2000) 23 Cal.4th 866, 872, the court notes that “[a]s a general rule, no crime is committed unless there is a union of act and 2 Estes’ profit for the trip was approximately $48,000; thus, the $47,000 forfeiture effectively took Estes’ entire profit. 4 either wrongful intent or criminal negligence.” (King (2007) 38 Cal.4th at 623.) Notwithstanding this general rule, certain crimes, which are purely regulatory in nature, do not require any proof of criminal intent for a violation. (Id.) Rather, one may be strictly liable upon the mere proof that a violation occurred and the person was the one responsible for the violation. Such crimes are denominated “public welfare offenses” in that they are purely regulatory in nature and seek to protect the health and safety of the public. (Id.) In the words of the California Supreme Court, [Public welfare] offenses usually involve light penalties and no moral obloquy or damage to reputation. Although criminal sanctions are relied upon, the primary purpose of the statutes is regulation rather than punishment or correction. The offenses are not crimes in the orthodox sense, and wrongful intent is not required in the interest of enforcement. (Id., citing People v. Coria (1999) 21 Cal.4th 868, 877.) Public welfare offenses have been roughly classified to include violations of general police regulations, passed for the safety, health or well-being of the community. (1 Witkin, CALIFORNIA CRIMINAL LAW 4th (2012) Elements, § 18, p. 287, citing Morissette v. United States (1952) 342 U.S. 246.) The penalties imposed for violations of the offense are an indication of legislative intent: if the penalties prescribed are light, misdemeanor penalties, strict liability is more likely. (People v. Casey (1995) 41 Cal.App.4th Supp. 1, 6-7.) Based on these considerations, the trial court properly determined that § 8278 constitutes a public welfare offense and that strict liability applies. First, the purpose of the statute appears to be primarily regulatory. As the People point out, the Legislature included statements in support of this finding in the statutory scheme: 5  The Legislature finds and declares that the Dungeness crab fishery is important to the state because it provides a valuable food product, employment for those persons engaged in the fishery, and economic benefits to the coastal communities of the state (Fish & G. Code § 8280(a); see also In re Makings (1926) 78 Cal.App. 58, 61 [interpreting in dicta an earlier version of § 8278 as follows: “The statute expressly prohibits certain acts and by implication grants…limited rights to take certain crabs in certain waters. Theretofore the ownership was in the people of the state”].) This express intent behind the statutory scheme related to the Dungeness fishery indicates that the scheme is designed to regulate and protect the fishery and its economic benefits to the state, rather than to punish violators. Though, as Estes claims, the statute does not concern issues endangering public safety, the breadth of the case law defining public welfare offenses indicates that public welfare offenses are not so limited in definition. In addition, as a regulatory crime, there appears to be little risk to Estes’ reputation from his conviction. There is no evidence in the record that his fishing business has been unduly prejudiced since his conviction, nor is there indication that he has incurred other “reputational” penalties, such as losing his fishing license or being unable to sell his subsequent catch. The statutory penalty for violating § 8278 also weighs in favor of applying strict liability. A violation is punishable as a misdemeanor, subject to a maximum fine of $1,000 and a maximum jail term of six months. (Fish & G. Code §§ 12000 and 12002.) Finally, another factor also weighs in favor of applying strict liability to Estes’ offense. In considering the issue, the California Supreme Court has assessed the difficulty prosecutors would have in proving a mental state for the crime—“The greater the difficulty, the more likely it is that the legislature intended to relieve the prosecution of that burden so that the law could be effectively enforced.” (In re Jorge M. (2000) 23 Cal.4th 866, 873, citing 1 LaFave & Scott, SUBSTANTIVE CRIMINAL LAW (1986) § 3.8(a), pp. 342-344.) Here, the People persuasively argue 6 that it would be exceedingly difficult for the prosecution to prove that a defendant accused of violating § 8278 had the requisite mens rea. In situations like the Dungeness fishery, we agree with the People that “there would be little or no incentive for the crews to exercise any diligence in sorting through their catch” were a culpable mental state required. Instead, fishing crews would have an incentive toward ignorance: crew members would be wise not to measure the crabs at all and a shrewd captain would never leave his or her wheelhouse to ensure that crabs were not undersized. Indeed, it is the crew members, including captains like Estes, who are in the best position to ascertain the true facts prior to inspection, for they have the only access to their catch prior to docking. As described in Jorge M., these two factors favor lightening the burden on the prosecution and assigning fault to Estes for not knowing of his violation. Strict liability is the only means by which the intent of this law can be effectively implemented. The trial court did not err in determining § 8278(a) to be a strict liability statute. B. Excessive Forfeiture While we hold that the trial court correctly applied strict liability to Estes’ offense, we find incongruous with strict liability the court’s sentencing order requiring Estes to forfeit $47,000 in proceeds from his legal Dungeness catch. The question of whether a fine is constitutionally excessive is subject to de novo review, whereby the reviewing court must compare the amount of the forfeiture to the gravity of the defendant's offense. (U.S. v. Bajakajian (1998) 524 U.S. 321, 336-37.) The Eighth Amendment of the U.S. Constitution and Art. I, § 17 of the California Constitution both prohibit imposition of “excessive fines.” (3 Witkin, CALIFORNIA CRIMINAL LAW 4th (2012) Punishment, § 193, p. 326.) Forfeitures (payments in kind) are “fines” if they constitute punishment for an offense, even if they serve some other remedial purpose. (Bajakajian (1998) 524 U.S. at 328.) 7  A forfeiture constitutes an unconstitutional fine in violation of the Eighth Amendment if the amount of the forfeiture is grossly disproportionate to the gravity of the defendant’s offense. (Bajakajian (1998) 524 U.S. at 336-7.) In determining whether or not a forfeiture is grossly disproportionate, the court may look to four factors: (1) the nature and extent of the crime, (2) whether the violation was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused. (Id. at 337-340.) In the case before this Court, it is clear that the trial court had statutory authority to order the forfeiture as part of the punishment. (Fish and G. Code §§ 12159 and 12160.) The mandatory language of the statutes is such that the legislative intent is unambiguous that the forfeiture constitutes punishment to violators. Although the statutory scheme has a remedial component (the proceeds from the forfeiture are deposited with, and presumably benefit, the Fish and Game Preservation Fund), the forfeiture is clearly punishment under both the federal and California constitutions. We consider the facts of this case in light of the four factors enunciated in Bajakajian. The violation involved a single catch with short crabs constituting 2.2% of the total catch. This is only 1.2% above the amount of short crabs permitted by law. Estes was engaged in a legal activity with a valid commercial fishing license. The evidence is that Estes has owned his own boat for twenty-one years and that he takes care to avoid having short crabs in his catch: he instructs his crew on the law, provides them with gauges to measure the crab, has them sign a contract making the crew member liable for taking in short crabs, and periodically checks with the crew for compliance consistent with safe piloting of the boat. The particular harm caused in this case was minimal: the short crabs were returned to the waters. Further, a legal basis and justification for finding the violation of Fish and Game Code § 8278(a) to be a strict liability 8 offense, obviating the prosecution to prove mens rea, is that the penalty for violation is minimal. (In re Jorge M. (2000) 23 Cal.4th at 872-3.) The forfeiture of $47,000 constituting nearly two- thirds of the value of the entire load of crab is inconsistent with the legal justification for the elimination of wrongful intent as an element of the crime. We, therefore, conclude that in this case, as in Bajakajian, there is a disproportionate difference between the amount of the forfeiture and the maximum fine: while Estes was subject to a maximum fine of only $1,000, the court’s order required him to forfeit an amount forty- seven times that. In ordering the forfeiture, the trial court noted, among other factors, that Estes had expressed no remorse for his unlawful conduct. The court explained, “then I thought about, well, if there were remorse expressed in this case or full acceptance of responsibility, maybe I would [require forfeiture of a lesser amount].” Where no proof of a culpable mental state is required, however, evidence of neither remorse nor contrition nor any other mental state is appropriate in imposing punishment. We recognize that there is no precise formula for setting the amount of the forfeiture. The amount is one of proportion. Upon remand the trial court should be guided by the four Bajakajian factors as explained hereinabove, and the trial court is directed to modify the amount of the forfeiture accordingly. 9  CONCLUSION For the foregoing reasons, we affirm Estes’ conviction, but remand the matter to the lower court for resentencing consistent with this opinion. IT IS SO ORDERED. Charlene Padovani Kiesselbach, Acting Presiding Judge We Concur: Bruce E. Chan, Associate Judge Anne-Christine Massullo, Associate Judge 10 Trial Judge: Honorable Andrew Y.S. Cheng Counsel on Appeal: E. Michael Linscheid, Esq., for Appellant. George Gascón, District Attorney, and Lisa M. Culbertson, Assistant District Attorney, for Respondent. . 11 

July 23, 1996 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 96-1294 UNITED STATES, Appellee, v. ALEJANDRO DE JESUS GRANADA, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Carmen Consuelo Cerezo, U.S. District Judge] Before Selya, Cyr and Boudin, Circuit Judges. Irma R. Valldejuli on brief for appellant. Guillermo Gil, United States Attorney, Warren Vazquez and Nelson Perez-Sosa, Assistant United States Attorneys, and Jose A. Quiles- Espinosa, Senior Litigation Counsel, on brief for appellee. Per Curiam. Alejandro De Jesus Granada appeals his sentence on two grounds. We affirm. 1. Role in the offense. Appellant argues that the district court erred in failing to grant his request for a two-level reduction in the offense level based upon his minor role in the offense, pursuant to U.S.S.G. 3B1.2. The plea agreement entered between appellant and the government expressly provided that, beyond the adjustment for acceptance of responsibility, "no further adjustments to the defendant's base offense level shall be made." It might therefore be argued that appellant waived his right to request an adjustment for his role in the offense, but there is some difference among the circuits on when and whether such stipulations are binding on the district court and we have not resolved this issue. Compare United States v. Isirov, 996 F.2d 183, 186-87 (7th Cir. 1993), with United States v. Long, 77 F.3d 1060, 1061 (8th Cir. 1996). In all events, Granada was convicted of importing a specific shipment of heroin. He is the one who did the importing and while there is some indication that someone else furnished him with the drugs, there is almost nothing to indicate that his role in this importation was minor. Given that the burden was on Granada to show that he was entitled to the downward adjustment, the district court did not err in its conclusion that the adjustment was unwarranted. -2- 2. Departure Pursuant to U.S.S.G. 5K2.0. Appellant contends that the district court erred in failing to depart downward under U.S.S.G. 5K2.0, on account of his substantial assistance to the government, notwithstanding that the government did not move for a departure pursuant to 5K1.1. "It is by now axiomatic that a criminal defendant cannot ground an appeal on a sentencing court's discretionary decision not to depart below the guideline sentencing range." United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). In his brief, appellant does not argue that the district court misunderstood its legal authority to depart. The transcript of the sentencing hearing does not indicate that the court suffered from such a misunderstanding. Therefore, this court lacks jurisdiction to review the sentencing court's discretionary decision not to depart. 3. Pro Se Motion to Supplement Appellate Record. Appellant filed a pro se motion with this court seeking to supplement the record by adding a letter from a prison psychologist. In his motion, Granada suggests that the letter calls into question the validity of his guilty plea. The letter was never before the district court. Nor has Granada raised the issue of the validity of his guilty plea in district court. "It is a bedrock rule that when a party has not presented an argument to the district court, she may not -3- unveil it in the court of appeals." United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992). Appellant's sentence is affirmed. See Loc. R. 27.1. Appellant's pro se motion to supplement the record on appeal is denied. -4-

670 F.Supp. 1388 (1987) Mahendra Kumar JAIN, Plaintiff, v. UNIVERSITY OF TENNESSEE AT MARTIN, Defendant. No. 81-1122. United States District Court, W.D. Tennessee, E.D. August 17, 1987. *1389 Mahendra Kumar Jain, pro se. Beauchamp E. Brogan, Gen. Counsel and Ronald C. Leadbetter, Associate Gen. Counsel, Knoxville, Tenn., for defendant. MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT TODD, District Judge. In this 42 U.S.C. § 1983 action, plaintiff Mahendra K. Jain (Jain) contends that his employer, defendant University of Tennessee at Martin (UTM), made unlawful employment decisions infringing his constitutional rights. UTM previously moved to dismiss the complaint on the basis of sovereign immunity. On August 6, 1986, this court denied UTM's motion to dismiss, concluding that the record was inadequate to satisfy the nine-factor test for sovereign immunity articulated in Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1984). The August 6, 1986, order granted UTM leave to raise the defense of sovereign immunity in a properly supported motion for summary judgment. UTM now moves for summary judgment on the issue of sovereign immunity. Plaintiff has responded to the motion. This court has considered the pleadings, the materials in the record and the applicable law, and concludes that UTM's motion for summary judgment should be granted. ANALYSIS UTM's contends that it is an arm of the State of Tennessee, and therefore enjoys Eleventh Amendment immunity from suit. The standard in this circuit for analysis of sovereign immunity claims is set forth in Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir.), cert. denied, 469 U.S. 1113, 105 S.Ct. 796, 83 L.Ed.2d 789 (1984). In Hall, a former medical student of the Medical College of Ohio at Toledo (MCOT) brought a race discrimination action against MCOT and various university officials, alleging violations of 42 U.S.C. §§ 1981, 1983 and 2000d. One of the issues presented was whether the Eleventh Amendment barred the action against MCOT. Finding that it did in that case, the Hall court noted that the issue depended upon whether the university could "be characterized as an arm or alter ego of the state, or whether it should be treated instead as a political subdivision of the state." 742 F.2d at 301. To make this characterization, the Hall court used a nine-factor analysis first articulated by the Third Circuit Court of Appeals in Blake v. Kline, 612 F.2d 718 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980). The Blake factors are: 1) the university's status and nature under local law and decisions; 2) whether payment of any judgment would come from the state treasury; 3) whether the university has the funds or power to satisfy the judgment; 4) whether the university is performing a governmental or proprietary function; 5) whether the university has been separately incorporated; 6) the degree of autonomy the university has over its operations; 7) whether the university has the power to sue and be sued and to enter into contracts; 8) whether university property is immune from state taxation; and 9) whether the state has immunized itself from responsibility for the university's actions. *1390 Hall, 742 F.2d at 302. The most important factors, according to Hall, are whether payment of any judgment would actually come from the state treasury and whether the university has the funds or power to satisfy a monetary judgment. Id., 742 F.2d at 304. It is significant that "[t]he great majority of cases addressing the question of Eleventh Amendment immunity for public colleges and universities have found such institutions to be arms of their respective state governments and thus immune from suit." Hall, 742 F.2d at 301. A representative list of decisions holding public colleges and universities immune can be found in Hall, 742 F.2d at 301-02. Recognizing the marked tendency of the courts to find public universities and colleges immune under the Eleventh Amendment, this court must now analyze the present case with reference to the Hall nine-factor test for immunity. This court's inquiry is aided by information supplied in the affidavit of Emerson H. Fly, a University of Tennessee (UT) Vice President of Business and Finance (Fly Affidavit). The analysis proceeds as follows. I. UTM'S STATUS UNDER LOCAL LAW AND DECISIONS. UTM is an entity created by legislative charter. 1807 Pub.Acts ch. 64; 1839 Pub. Acts ch. 98. See also Tenn.Code Ann. §§ 49-9-101 et seq. and 1001. Case decisions have consistently held, with one exception, that UT and its various campuses were arms of the state for Eleventh Amendment purposes. See Shelton v. City of Newport, No. 2-86-296, Slip Op. (E.D. Tenn. Nov. 6, 1986) [Available on WESTLAW, DCT database]; Gross v. University of Tennessee, 448 F.Supp. 245, 247-48 (W.D. Tenn.1978), aff'd, 620 F.2d 109 (6th Cir. 1980); University of Tennessee v. Peoples' Bank of Martin, 157 Tenn. 87, 6 S.W.2d 328, 330 (1928). One case did hold that the legislature might have waived sovereign immunity with respect to the University of Tennessee as a result of ambiguity perceived by that court in a Tennessee statute allowing the university to sue or be sued. Soni v. Board of Trustees of the University of Tennessee, 513 F.2d 347 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976). However, Soni now has questionable validity. Following the Soni decision, the Tennessee legislature amended the state's sovereign immunity statute to provide: [n]o statutory or other provision authorizing the University of Tennessee and its board of trustees to sue and be sued shall constitute a waiver of sovereign immunity. Tenn.Code Ann. § 20-13-102(b). This court has since held "[t]he Tennessee General Assembly has expressed its specific intent that the charter provision not be construed as an implied waiver of Eleventh Amendment protection for the University," and has questioned "the continued vitality of Soni;" as a result, the university was accorded Eleventh Amendment immunity. Gross, 448 F.Supp. at 247-48, aff'd, 620 F.2d 109 (6th Cir.1980). This court adopts the reasoning in Gross, and concludes that UTM is an "arm of the state" for Eleventh Amendment immunity purposes. II. ANY MONETARY JUDGMENT AGAINST UTM WOULD BE PAID OUT OF THE STATE TREASURY. A determination that a monetary judgment against UTM would be paid from funds other than state treasury funds would exalt form over substance. UT derives more than one-third of annual funding from direct legislative appropriations. It does generate revenues from tuition; user fees; housing and food service operations; federal, state and private grants and contracts; and gifts (Fly Affidavit at 2); these non-legislative funds may be retained by the university pursuant to statute. Tenn.Code Ann. § 9-4-303. However, such a system which avoids the redundancy of having to turn over self-generated revenues to the state treasury, only to have those funds returned by appropriations to the generating agency, does not preclude sovereign immunity. Hall, 742 F.2d at 304-05. UT's financial affairs are closely structured and monitored by the legislature. The university is required to present annual *1391 reports to the state, Tenn.Code Ann. § 49-9-208; its finances are subject to state audit, Tenn.Code Ann. § 8-4-109; and it is accountable to the state for compliance with state comptroller regulations and directives. Tenn.Code Ann. § 8-4-109(c). While the university is empowered to issue bonds and borrow money, this power is confined to specifically enumerated, limited transactions which do not include borrowing money to pay judgments. Tenn. Code Ann. § 49-3-1201 et seq. While it is true that any outlay of money by UT might not be directly traceable to appropriations, any outlay of funds from a source not purely legislative would certainly have an impact upon legislative appropriations. Thus, diminution of non-legislative funds would require enlargement of appropriations to replenish the funds expended. In light of this relationship, this court must agree with the reasoning expressed by the Tennessee Court of Appeals: [i]n our opinion ... it [is] clear that private contributions, as well as revenues generated by a department of a state educational institution, become state funds and are thus protected by the sovereign immunity of a state. If a plaintiff were to be permitted to sift through the coffers of a state institution in order to discover which of its funds originated from private sources and which did not, the very purpose of sovereign immunity would be defeated. T.C.A. § 20-13-102(a) bars not only suits with a view to reach state funds, but also suits "with a view to reach the state" itself. Greenhill v. Carpenter, 718 S.W.2d 268, 272 (Tenn.Ct.App.1986) (Memphis State University athletic department funds, acquired from private sources, protected by sovereign immunity). This court concludes that, due to the financial system of UTM and its close link with state finances, any judgment against UTM has the effect of a liability payable from the state treasury. See Hall, 742 F.2d at 305; United Carolina Bank v. Board of Regents, 665 F.2d 553, 560-61 (5th Cir.1982); Jagnandan v. Giles, 538 F.2d 1166, 1176 (5th Cir.1976), cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977). III. WHETHER UTM HAS THE FUNDS OR POWER TO SATISFY A JUDGMENT. The Tennessee legislature has exhibited its specific intent that funds of the university be protected by sovereign immunity. Tenn.Code Ann. § 20-13-102(a) and (b). More recently, the legislature emphasized the restrictions upon UT's authority to pay judgments: [e]xcept where sovereign immunity has been or shall hereafter be expressly waived by the General Assembly, all appropriations of state funds and institutional revenues made in this Act and prior acts to institutions of higher education shall be state funds and shall be protected by the state's sovereign immunity from any court's judgment, decree, attachment, or other legal process, provided that any statutory or other provision authorizing any entity to sue and be sued shall not constitute a waiver of sovereign immunity. 1986 Tenn.Pub.Acts ch. 937 § 35, item 8. Absent waiver of sovereign immunity, no public money may be spent except by lawful appropriations. Tenn.Const. art. II, § 24. In view of the command of the cited Tennessee constitutional statutory and public law provisions, it is clear that UTM does not have the funds or power to satisfy a monetary judgment. IV. WHETHER THE UNIVERSITY IS PERFORMING A GOVERNMENTAL OR PROPRIETARY FUNCTION. "Providing facilities and opportunities for the pursuit of higher education is long recognized governmental function." Hall, 742 F.2d at 305; see Vaughn v. Regents of University of California, 504 F.Supp. at 1353. Therefore, with respect to UTM's employment decisions affecting plaintiff, the university was engaged in a governmental function. *1392 V. WHETHER THE UNIVERSITY HAS BEEN SEPARATELY INCORPORATED. UT has been conferred corporate status by the state legislature. However, the creation of the corporation was apparently a convenient means to allow the university to pursue the ends of higher education: [t]he state and the public represented by it must be considered as the owner of the property held by the University, and the sovereign character of the state's ownership is not changed by the creation of the corporation as a convenient means through which the state exercises the strictly governmental function of educating the young among its citizens. We are not able to find that the state has lost or divested itself of any element of sovereignty in the creation of this corporation which is subject to the will of the legislative branch of the state government in every particular, and the only purpose of which is to perform a governmental function. Peoples' Bank of Martin, 6 S.W.2d at 330. It is instructive that the corporate form of colleges and universities, or their incorporated governing boards, has not prevented courts from finding that these institutions possessed Eleventh Amendment immunity. See Jagnandan, 538 F.2d 1166, cert. denied, 432 U.S. 910, 97 S.Ct. 2959, 53 L.Ed.2d 1083 (1977) (Mississippi State University); Gross, 448 F.Supp. 245 (University of Tennessee). Accordingly, this court concludes that Tennessee's choice of a corporate form through which to pursue the goal of providing higher education, while retaining legislative control over the corporation, does not operate as a waiver of sovereign immunity with respect to that institution. See, e.g., Patsy v. Board of Regents, 457 U.S. 496, 521 n. 4, 102 S.Ct. 2557, 2570 n. 4, 73 L.Ed.2d 172 (1982) (Powell, J., dissenting). VI. THE DEGREE OF AUTONOMY THE UNIVERSITY HAS OVER ITS OPERATIONS. UTM is subject to extensive legislative control. The existence of the UT Board of Trustees automatically expires at specified intervals unless renewed by legislative enactment. Tenn.Code Ann. §§ 4-29-101, 108; Tenn.Code Ann. § 49-29-205 (UT Board of Trustees terminates June 30, 1984) (superseded); Tenn.Code Ann. § 4-29-211 (UT Board of Trustees terminates June 30, 1990). The governor, and individuals appointed by him (subject to senate confirmation), compromise all but two of the members of the Board of Trustees. Tenn.Code Ann. §§ 49-9-201, 202. Board members are bonded by a general surety bond obtained by the State Department of Finance and Administration. Fly Affidavit at 6; Tenn. Code Ann. § 4-4-108. As noted previously, the state controls many facets of the university's financial operations, including specifying accounting procedures, conducting audits, and requiring in-depth operational reports. State law controls the purposes and issuance of bonds by the university. The state legislature exercises authority over the university's compensation of employees [1986 Tenn.Pub.Acts ch. 937 § 35]; maintenance and operations of the university's physical plants [1986 Tenn.Pub.Acts ch. 937 § 35, item 3]; and tuition fee charges [1986 Tenn.Pub.Acts ch. 937 § 35, item 5]. Legislative control pervades many other aspects of the university's operations. See, e.g., Tenn.Code Ann. §§ 12-2-115; 12-3-103 (leases); 12-2-112 (dispositions of surplus property); 12-4-109, 110 (personal services contracts); 49-7-201 (Higher Education Commission); 9-8-109(b) (contributions to Claims Commission). It is apparent that any autonomy UTM might have is miniscule compared to the authority exercised by the state. VII. WHETHER THE UNIVERSITY HAS THE POWER TO SUE AND BE SUED AND TO ENTER INTO CONTRACTS. UT has the power to sue and be sued; however, in the aftermath of the Soni case (see discussion, § I, supra), the legislature negated any concern that the power to sue *1393 or be sued operated as a waiver of sovereign immunity: [n]o statutory or other provision authorizing the University of Tennessee and its board of trustees to sue and be sued shall constitute a waiver of sovereign immunity. Tenn.Code Ann. § 20-13-102(b). The university is empowered to enter into contracts, but this power is circumscribed and controlled by the legislature. See, e.g., Tenn.Code Ann. §§ 12-2-115 (leases); 12-3-103 (purchases); and 12-4-109 (personal service contracts). VIII. WHETHER UNIVERSITY PROPERTY IS IMMUNE FROM STATE TAXATION. All of the university's property belongs to the state; it is fully exempt from taxation. Tenn.Code Ann. § 67-5-203(a)(2). The university is exempt from sales tax also. Tenn.Code Ann. § 67-6-329(13); Fly Affidavit at 6. IX. WHETHER THE STATE HAS IMMUNIZED ITSELF FROM RESPONSIBILITY FOR THE UNIVERSITY'S ACTIONS. While the state has jealously sought to preserve the sovereign immunity of the university, it has provided mechanisms by which certain claims against the state, its agencies, officials and employees might be paid. Tenn.Code Ann. § 9-8-101 et seq. (Board of Claims Act); Tenn.Code Ann. § 9-8-301 et seq. (Tennessee Claims Commission Act). Legitimate claims under these acts are satisfied from a segregated fund of the state treasury. Tenn.Code Ann. § 9-8-109(a) and (c). The state has waived sovereign immunity to a certain degree by instituting the Board of Claims and the Claims Commission; however, it has specifically limited this waiver to preserve sovereign immunity for those areas of operation not specifically covered by the Claims Acts. Tenn.Code Ann. §§ 9-8-112(b); 9-8-307(g); and 9-8-112. Accordingly, although the state has not completely immunized itself from responsibility for the university's actions, it has specifically limited its waiver of immunity. CONCLUSION In light of the preceding Hall nine-factor analysis of the present case, it is clear that UTM is not autonomous from, and is financially dependent on, the state of Tennessee. This court concludes that UTM is an arm of the state entitled to Eleventh Amendment immunity from suit. Accordingly, UTM is entitled to summary judgment as a matter of law. UTM's motion for summary judgment is GRANTED. The complaint is DISMISSED. IT IS SO ORDERED.

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367 So.2d 910 (1979) GATES RUBBER COMPANY v. Eunice C. DUKE. No. 50590. Supreme Court of Mississippi. February 7, 1979. Rehearing Denied March 7, 1979. *911 Lott, Sanders & Gwin, Arnold F. Gwin, Greenwood, for appellant. Odom, Odom & McCain, Talbot O. McCain, Greenwood, for appellee. En Banc. LEE, Justice, for the Court: Mrs. Eunice C. Duke filed a products liability suit in the Circuit Court of Leflore County against Gates Rubber Company, seeking damages for the death of her husband. The jury returned a verdict in her favor in the sum of two hundred nine thousand nine hundred seventy-nine dollars twenty-five cents ($209,979.25). The trial judge entered a remittitur of fifty thousand dollars ($50,000), which was accepted by the plaintiff, and judgment was entered for her in the sum of one hundred fifty-nine thousand nine hundred seventy-nine dollars twenty-five cents ($159,979.25). Gates Rubber Company appeals and assigns fourteen (14) errors in the trial below. Mr. William Duke was employed as manager of the Farmers' Supply Cooperative at Schlater, Mississippi. The company sold, among other things, liquid anhydrous ammonia, and the plant was located near Schlater. On the afternoon of June 26, 1975, a customer brought his ammonia tank to the plant, and the tank was in the process of being filled with anhydrous ammonia from the Co-op's transfer rack. The transfer was effected by means of a hose leading from the supply tank to the customer's tank. Employee Love was handling the actual transfer of the ammonia. Mr. Duke and the customer (Overstreet) were sitting in the Co-op office building when they heard a loud explosion and looked up to see Love running from the tanks yelling that the hose had burst. Mr. Duke and Overstreet ran out of the office; Duke picked up a gas mask and attempted to approach the transfer rack, but was turned back by the spewing anhydrous ammonia which rapidly vaporized on contact with the air. Duke, Overstreet and Love were forced to leave the plant and retreat up a gravel road leading to the highway as the wind blew the ammonia toward the office. Duke was driven in an automobile to a nearby telephone where he called the Farmers' Supply Ammonia Plant for assistance. He and Roy Petty, who had driven to the area, then returned to the transfer rack with the windows of the automobile rolled up, Duke put on the gas mask, jumped out, ran to the rack and closed the valve thereby shutting off the flow of ammonia. He got back into the car and Petty drove to the highway. When Duke emerged from the car at the highway, he slumped to his knees and appeared to be sick. He was taken to the hospital where he remained for twenty-three (23) days and expired. His condition was diagnosed as pneumonitis caused by the inhalation of anhydrous ammonia and he also had suffered a myocardial infarction. I. The trial court erred in refusing appellant's request for a peremptory instruction. II. The verdict of the jury and judgment of the court were contrary to law and against the overwhelming weight of the evidence. The appellee contends that the transfer hose was defective as a result of the manufacturing process and that such condition existed when it was sold by appellant. After the accident, the hose was found to be discolored at the burst site, and appellee argues that this, along with other facts, indicates a defective condition in the hose. Appellant contends that the hose was properly manufactured; that it was not defective after the manufacturing process, or when it was sold by Gates; that the hose had been maintained in a bent position (near the spud) for a long period of time which weakened it; and that the hose burst as a result of deteriorating from that condition. Expert witnesses testified for the appellant and appellee in support of their respective theories of the case. Evidence as to whether or not the hose was defective when *912 manufactured and sold by appellant was in direct conflict. The rule on request for a peremptory instruction requires that all evidence favorable to the party against whom the peremptory instruction is requested must be accepted as true, all evidence in favor of the party requesting the peremptory instruction in conflict with that of the other party must be disregarded, and, if the evidence and the reasonable inferences to be drawn from same will support a verdict for the party against whom it is requested, then the peremptory instruction should be refused. Paymaster Oil Mill Company v. Mitchell, 319 So.2d 652 (Miss. 1975). When the evidence is in conflict the issues must be submitted to the jury for decision. Ricks v. Bank of Dixie, 352 So.2d 798 (Miss. 1977). In the present case, the evidence is in direct conflict and establishes an issue of fact for decision by the jury. We are of the opinion that the evidence supports the jury's verdict on the issue of liability, and that the first two assignments are without merit. III. The court erred in granting Instruction P-5 requested by appellant. Instruction P-5 was a sudden emergency instruction and told the jury that, if it believed Duke was confronted with a sudden emergency caused by the bursting of the hose and the escape of the ammonia, that such sudden emergency was not of Duke's making, that Duke was not the cause of the sudden emergency, and that he acted reasonably and prudently after being confronted with same, then Duke was not negligent in responding to the sudden emergency situation. Sudden emergency instructions have been granted frequently in automobile accident cases. In most situations, they are doubtful when requested and dangerous to a party's case when given. The recent case of Wood v. Walley, 352 So.2d 1083 (Miss. 1977), set forth the following requirements for applying the rule in an automobile accident case: "(1) The motorist seeking the instruction must be driving in a reasonable and prudent manner; (2) the driver must be suddenly confronted with an unexpected and sudden emergency; (3) the emergency cannot be created or contributed to by the negligence or the wrongful conduct of the driver claiming the benefit of the rule; (4) the driver must be placed in a position of peril to himself; (5) the driver cannot have sufficient time in which to determine by rational deliberation the best alternative; (6) and that the degree of care to be weighed by the jury under the said emergency doctrine is that which a reasonably prudent and capable driver would use under the `unusual' circumstances brought about by the sudden emergency." 352 So.2d at 1086-1087. The evidence in the present case indicates that Mr. Duke foresaw a situation might arise with reference to the escape of anhydrous ammonia because he kept a gas mask in his office; that he went out of the office and saw the vaporized ammonia being blown toward him by the wind; that he left the plant and went up a gravel road toward the highway; that he went to a nearby telephone and called the main ammonia plant for help; that he was driven back to the area where the ammonia was escaping; that he went to the ammonia transfer rack, put on the gas mask, got out and closed the valve which stopped the flow of ammonia, and then was driven back to the road where he became ill. Under those facts and circumstances, the trial court erred in granting the emergency instruction. Appellant requested and was given the following instructions: (1) Instruction D-7 told the jury that, if it believed the hose left the manufacturer in a reasonably safe condition and that the burst was due to the unreasonably long period of time with a bend in it where the hose left the spud, then the verdict should be for appellant. (2) Instruction D-8 told the jury that Farmer's Supply Cooperative was negligent in failing to have an excess flow valve on *913 the transfer rack and that, if such negligence was the sole proximate cause of Duke's death, the verdict should be for appellant. (3) Instruction D-10 told the jury that the hose had been attached to the transfer rack for more than two (2) years, that Duke had been instructed by his employer to change the hose at least every two (2) years, which he failed to do, and that, if such negligence was the sole proximate cause of Duke's death, the verdict should be for appellant. (4) Instruction D-13 was a direct response to Instruction P-5 and told the jury that if it believed Duke got away from the escaping ammonia onto the highway and that he did not act as a reasonable and prudent person in going back into the ammonia under all the circumstances, then the jury must find Duke to have been negligent. (5) Instruction D-14 told the jury that even though it believed the hose had a defect when it left the manufacturer, and that the defect caused the hose to burst, if the jury believed that negligence of Duke or Farmers' Supply Cooperative were the sole proximate cause of Duke's death, then the verdict should be for appellant. (6) Instruction D-17 told the jury that, if Duke could have avoided his death by the exercise of reasonable care, and that his failure to exercise reasonable care was the sole proximate cause of his death, then the verdict should be for appellant. (7) Instruction D-18 was a contributory negligence instruction and told the jury that, if it believed Duke committed a negligent act (or acts) under the other instructions given by the court, that proximately contributed to his injuries and death, then the damages should be diminished by that amount which otherwise would have been awarded to the plaintiff, in proportion to the negligence attributable to Duke. All justices agree that the sudden emergency instruction (P-5) should not have been given. Justices Patterson, Smith, Robertson, Sugg, Walker, Broom and Cofer think that the instruction was prejudicial and constituted reversible error. Justices Lee and Bowling think that the error was cured by the above mentioned instructions for appellant, that, reading all instructions together, appellant could not have been prejudiced and the instruction does not constitute reversible error. We all are of the opinion that the court committed no error in granting and refusing the other instructions complained of, under the facts presented by the record. IV. The court erred in permitting introduction in evidence by appellee of certain advertisements relating to the hose manufactured by Gates. Advertisements of Gates Rubber Company extolling the safety and construction of the Gates anhydrous ammonia hose were admitted in evidence. It may be argued that the advertisements constitute an admission against interest by appellant. 29 Am.Jur.2d Evidence § 597 (1967); 31A C.J.S. Evidence § 283 (1964). A majority of the justices think that the admission of such evidence does not constitute reversible error. Justices Lee and Bowling are of the opinion that the advertisements were properly admitted. However, on retrial of the case, appellee should carefully consider whether they should be offered in evidence again. We have carefully considered the remaining assignments of error and are of the opinion that either they do not constitute reversible error or that they will not occur on a retrial of the case, and we do not consider it necessary to discuss them here. The judgment of the lower court is reversed and the case is remanded for a new trial. REVERSED AND REMANDED. PATTERSON, C.J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and COFER, JJ., concur. LEE and BOWLING, JJ., dissent as to Parts III and IV.

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT NOV 14, 2007 No. 07-11528 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 05-00163-CV-5-RS-EMT CHRISTY MATHIS, Plaintiff-Appellant, versus WACHOVIA BANK, formerly known as Southtrust, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Northern District of Florida _________________________ (November 14, 2007) Before MARCUS, WILSON and FAY, Circuit Judges. PER CURIAM: Christy Mathis, an African-American female working as a teller supervisor for Wachovia Bank (“Wachovia”), appeals the district court’s grant of summary judgment in favor of Wachovia on her complaint alleging disparate treatment discrimination under Title VII; the Civil Rights Act of 1866, 42 U.S.C. § 1981; and the Florida Civil Rights Act of 1992, Chapter 760 of the Florida Statutes.1 For the reasons discussed below, we affirm the district court’s grant of summary judgment. Mathis specifically alleged the following instances of discriminatory failure to promote: (1) Jarod Griffin, a white employee, was hired for a Financial Services Representative (“FSR”) position instead of her; (2) Lynette Piper, a Native American employee, was hired for a Financial Center Manager (“FCM”) position instead of her; and (3) Jason McCormick, a white employee, was hired for a Branch Operations Manager (“BOM”) position that was not publicized or otherwise offered to her. Mathis also alleged the following instances of discriminatory discipline: (1) she was put on probation for cashing a $3,000 check without the requisite approval, thereby costing Wachovia $3,000 when the check was returned for insufficient funds, but Griffin was not put on probation for failing to apply the proper holds when depositing $1,600 and $1,100 credit card checks that later were 1 Along with the disparate treatment claim, Mathis also raised several other claims before the district court, including (1) a retaliation claim; (2) a disparate impact claim; (3) a pattern and practice claim; and (4) a hostile environment claim. On appeal, however, Mathis fails to address these claims. Accordingly, Mathis has abandoned these claims. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1114 n.1 (11th Cir. 1993) (declining to address appellants’ Title VII retaliation claim because they failed to address it in their appellate brief). 2 returned for insufficient funds; (2) she was put on probation for failing to run a money order through the check scanner, thereby costing Wachovia $76,000 because the money order was fraudulent, but Piper was not disciplined for her role in cashing the money order; (3) she was put on probation for processing a $1,800 check without applying the hold that was prompted by Wachovia’s computer system, thereby costing Wachovia $1,700 when the check was returned due to a “stop payment order”; (4) she was put on probation for not changing her hot pink hair within the ordered time frame, but Nicole Grzelka, a white employee, was not put on probation for dressing inappropriately, and Cassandra Goetz, a white employee, was not put on probation for ignoring requests to alter her appearance; and (5) she was reprimanded by her superior for arriving five minutes late to work because of traffic delays, but her superior routinely arrived late and allowed white employees to arrive late without reprimand. The evidence presented during discovery established the following. While Mathis was working as a teller supervisor at Wachovia, an FSR position became available. To be eligible for the position, applicants were required to score at least an overall “C” grade on the qualifying exam. Mathis took the exam and scored an overall “D” grade on the exam. She was not hired for the position. Instead, Griffin, who had been working as a teller and “roving FSR,” a position that 3 required traveling to other branches and assisting their FSRs, was given the position, even though he had not taken the qualifying exam. In August 2003, the FCM at Mathis’s Wachovia branch left the position. Wachovia posted information about the open position on its web site almost immediately. According to the post, the position required “[s]trong sales orientation; excellent communication skills; previous retail bank experience with emphasis in consumer and commercial banking; [and] previous loan production and business development experience.” Piper’s resume indicated that she had a combined five years’ experience as the General Sales Manager at two manufactured homes companies and two years’ experience as a Financial Specialist with Wachovia. Mathis’s application for the FCM position failed to reference any sales management experience. According to Wachovia’s Teller Operations Manual (“TOM”), as a teller supervisor Mathis was required to promote the bank branch’s sales by making service and product recommendations to clients. Mathis was rejected for the position the same month that it came open, and Piper was hired. Also while Mathis was working as a teller supervisor, a BOM position became available. Rather than post information on the opening on its web site, 4 however, a Wachovia superior approached McCormick and offered him the promotion. McCormick accepted. Pursuant to Wachovia’s TOM, a teller was subject to probation if he had a gross “cash outage” of more than $1,000 for the year, was “out of [balance]” more than 70 times for the year, had cashed “out of policy” checks totaling more than $1,000 for the year, and had cashed more than 5 out of balance checks for the year. On one occasion, Mathis cashed a $3,000 check without getting the appropriate approval. The check was returned for insufficient funds. Mathis was charged with an out-of-policy check violation and put on probation. Griffin deposited $1,100 and $1,600 credit card checks without applying the appropriate holds. While these credit card checks were returned for insufficient funds, the incident was charged to “fraud,” rather than to Griffin as an out-of-policy check violation. Thus, Griffin was not put on probation. On another occasion, a customer came into the branch with a $76,000 money order. Piper, recently hired as the FCM, dealt with the customer, but asked Mathis for assistance. According to Mathis, when she asked if a hold should be put on the money order, Piper said no and indicated that she knew that the customer had sufficient funds. Not wishing to be subordinate to her superior, Mathis wired the funds to the appropriate destination. Piper signed the appropriate paper work for 5 the transaction. When the money order turned out to be fraudulent, Mathis was put on probation. Piper was not disciplined for her involvement because she had been working at Wachovia only “a very few days” and had not been trained in Wachovia’s teller procedures yet. On another occasion, Mathis arrived at work with “hot pink hair.” Per Wachovia’s dress code, employees were to avoid “extremes in . . . hairstyles.” Accordingly, Mathis was asked to change her hair color on March 31. Mathis was told that if she did not comply with the request by April 1, she would be placed on probation and that if she did not comply with the request by April 4 she would be terminated. Mathis returned to work the next day with the same hot pink hair and was put on probation. When Mathis returned to work the following day without hot pink hair, however, her probationary status was lifted. Grzelka, who wore extremely heavy makeup and very tight clothing was asked to “kind of tone down her makeup.” Wachovia asserted that she returned to work the next day with less makeup on. Mathis, however, disputed this. We review the district court’s order granting summary judgment de novo. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir.1999). Summary judgment is appropriate only “where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of 6 law.” Id. at 1358 (citing Fed.R.Civ.P. 56(c)). In determining whether summary judgment is appropriate in a given case, we review the record and draw all reasonable inferences in the light most favorable to the non-moving party. Damon, 196 F.3d at 1358. Title VII2 prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff can establish a violation of Title VII on a disparate treatment theory through either direct or circumstantial evidence of discrimination. See Damon, 196 F.3d at 1358. We have defined direct evidence of discrimination as “evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee” and have held that “only the most blatant remarks, whose intent could be nothing other than to discriminate” satisfy this definition. Id. at 1358-59 (internal quotations omitted). We use the burden-shifting framework established in McDonnell 2 Along with her Title VII claim, Mathis also argued that Wachovia’s allegedly discriminatory conduct violated § 1981 and Chapter 760 of the Florida Statutes. Allegations of violations of these provisions are analyzed under the same framework as Title VII claims. See Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (“Where, as here, a plaintiff predicates liability under Title VII on disparate treatment and also claims liability under sections 1981 and 1983, the legal elements of the claims are identical”); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (suggesting that a claim under Chapter 760 of the Florida statutes is analyzed under the same standards as a claim under Title VII). 7 Douglas to analyze claims based on circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. To establish a prima facie case of discrimination on failure-to-promote grounds, the plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for and applied for the promotion; (3) she was rejected despite these qualifications; and (4) other equally or less qualified employees who were not members of the protected class were promoted. Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988). In Jones v. Firestone Tire and Rubber Co., Inc., 977 F.2d 527, 533 (11th Cir. 1992), we held that when an employer does not advertise a job opening or uses informal means for hiring, a plaintiff cannot be required to show that she applied for the job in question to satisfy her burden of establishing a prima facie case. We cautioned, however, that the plaintiff still must show that she was qualified for the job in question. Id. To establish a prima facie case of discriminatory discipline, the plaintiff must show that: (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) her employer treated similarly situated 8 employees outside of her protected class more favorably than she was treated; and (4) she was qualified to do the job. Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). Regarding the third element, that the plaintiff’s employer treated similarly situated employees outside of the plaintiff’s protected class more favorably than the plaintiff was treated, we have held that “the plaintiff must show that he and the employees [outside of the protected class] are similarly situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). We have explained that we require “the quantity and quality of the comparator’s misconduct be nearly identical to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999). If the plaintiff successfully establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the complained-of action. McDonnell Douglas Corp., 411 U.S. at 802-803, 93 S.Ct. at 1824. If the defendant meets this burden, then the burden shifts back to the plaintiff to show that the articulated reason was a pretext for discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). 9  Here, the record demonstrates that Mathis failed to establish a prima facie case of discrimination on failure-to-promote or discriminatory-discipline grounds. See McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. Concerning the FSR and FCM positions, it is not disputed that Mathis belonged to a protected class or that she was rejected for these positions. See Wu, 847 F.2d at 1483. However, Mathis has not shown that she was qualified for the FSR position or that she was equally qualified or more qualified than Piper for the FCM position. See id. As to the FSR position, the evidence shows that Mathis received a “D” grade on the qualifying exam, when a “C” or greater grade was needed. While Mathis has argued that Griffin should have been required to take the qualifying exam, Griffin’s own qualifications, or lack thereof, for the job do not alter the fact that Mathis was unqualified for the position and thus could not establish a prima facie case of discrimination as to this position. See id. As to the FCM position, the evidence shows that Piper was more qualified for the position, which required a “strong sales orientation,” because her resume indicated that she had five years of experience as a general sales manager, while Mathis’s application said nothing of sales management experience. The only evidence that Mathis had any sales experience was the description in the TOM of a teller’s responsibility to make product recommendations to customers. Moreover, 10 Mathis’s argument that she was more qualified for the position than Piper because she “helped run” the bank branch while Wachovia was looking for a new FCM is without merit, as the evidence shows that Mathis filed her FCM application and was rejected for the position in the same month that the then-FCM left, such that there was very little or no time for Mathis to “help run” the branch in the FCM’s absence. Thus, Mathis did not establish a prima facie case of discrimination as to this position. See id. Concerning the BOM position, while it was not detrimental to Mathis’s case that she could not show that she applied for the job, as it had not been advertised or offered to her, Mathis failed to offer any evidence that she was qualified for the job. Thus, Mathis failed to establish a prima facie case of discrimination on failure-to-promote grounds. See Wu, 847 F.2d at 1483. Concerning the alleged incidents of discriminatory discipline, it is not disputed that Mathis belonged to a protected class, suffered an adverse employment action, or was qualified for her teller supervisor position. See Burke-Fowler, 447 F.3d at 1323. However, Mathis has not shown that an employee outside of her protected class who was similarly situated to her in all relevant aspects was treated more favorably than her. See Burke-Fowler, 447 F.3d at 1323; Holifield, 115 F.3d at 1562; Maniccia, 171 F.3d at 1368-69. 11  As to the $3,000-check incident, the evidence shows that Griffin’s misconduct was not “nearly identical” to Mathis’s, in that she failed to get the requisite approval for a check, while Griffin failed to apply the proper holds to two credit card checks. See Maniccia, 171 F.3d at 1368-69. The evidence also shows that Wachovia treated their misconduct differently, labeling Mathis’s failure to get approval as an out of policy violation costing more than $1,000, and thereby meriting probation, but labeling Griffin’s failure to apply the proper holds as “fraud,” which was not a ground for probation in the TOM. Because their misconduct was not sufficiently similar, to judge Wachovia’s different response to each instance of misconduct would be to risk “confusing apples with oranges” and second guessing Wachovia’s decisions. See Maniccia, 171 F.3d at 1368-69. Moreover, Mathis and Griffin were not similarly situated in all relevant aspects because Mathis was a teller supervisor, while Griffin was a teller. See Holifield, 115 F.3d at 1562. As to the $76,000-money-order incident, the evidence shows that Piper’s experience was not similar to Mathis’s in all relevant aspects because Piper had been working at Wachovia only a short time and had yet to be trained, while Mathis had been working at Wachovia as a teller supervisor for three years. See Holifield, 115 F.3d at 1562. Piper’s familiarity with Wachovia’s money-order 12 processing procedures was relevant to determining who was at fault in costing Wachovia $76,000. See Holifield, 115 F.3d at 1562. Because of this relevant difference in experience, Mathis and Piper were not similarly situated, and Mathis could not establish a prima facie case of discrimination as to this incident. See Burke-Fowler, 447 F.3d at 1323 As to the $1,800-check incident, Mathis failed to identify a comparator employee who had processed a check without applying the computer-prompted hold. Accordingly, there is no evidence that a similarly situated employee outside of Mathis’s protected class was treated more favorably than her in this respect. See id. As to the hair-color incident, the evidence shows that Grzelka did not hold a similar position, as she merely was a teller while Mathis was a teller supervisor. The difference in Grzelka’s and Mathis’s was relevant to Wachovia’s handling of their allegedly inappropriate styles because Grzelka, unlike Mathis, was not in a position of authority at Wachovia. See Holifield, 115 F.3d at 1562. Because of this relevant difference in positions and duties, the two were not similarly situated in all relevant aspects, and Mathis could not establish a prima facie case of discrimination as to this incident. See Burke-Fowler, 447 F.3d at 1323. While Mathis argued before the district court that another employee, Goetz, also dressed 13 inappropriately without reprimand, she has not referred to this claim on appeal. Accordingly, she has abandoned the argument that she received disparate treatment compared to Goetz. See Fitzpatrick, 2 F.3d at 1114 n.1. Finally, as to the incident described before the district court in which Mathis was reprimanded for being late, Mathis has not made reference to this argument on appeal. Accordingly, Mathis has abandoned her argument of discriminatory discipline in this matter. See id. Because Mathis failed to establish a prima facie case of discrimination on any of the grounds alleged, she did not create a presumption of discrimination under the McDonnell Douglas framework, and the burden never shifted to Wachovia to rebut the presumption by demonstrating legitimate non-discriminatory reasons for its actions. See McDonnell Douglas Corp., 411 U.S. at 802-803, 93 S.Ct. at 1824. Thus, we affirm the district court’s grant of summary judgment in favor of Wachovia on Mathis’s complaint. See Damon, 196 F.3d at 1357; Stallworth, 777 F.2d at 1433; Harper, 139 F.3d at 1387. AFFIRMED. 14 

Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 1-22-2003 USA v. Davenport Precedential or Non-Precedential: Non-Precedential Docket 01-1524 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Davenport" (2003). 2003 Decisions. Paper 868. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/868 This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.  NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT NO. 01-1524 UNITED STATES OF AMERICA v DENNIS DAVENPORT, Appellant On Appeal from the United States District Court for the District of Delaware D.C. Criminal No. 00-cr-00033 District Judge Sue L. Robinson Argued September 17, 2002 Before: Becker, Chief Judge Scirica & McKee, Circuit Judges (Filed January 22, 2003) S. Timothy A. Crawford, Jr., Esq. (Argued) Crawford & Associates 1616 Walnut Street Suite 700 Philadelphia, PA 19103 Attorney for Appellant Keith M. Rosen, Esq. (Argued) Office of United States Attorney 1201 Market Street P.O. Box 2046, Suite 1100 Wilimington, DE 19899-2046 Attorney for Appellee OPINION OF THE COURT McKee, Circuit Judge:  Dennis Davenport appeals the district court’s denial of his suppression motion and the ensuing sentence that was imposed following his unconditional guilty plea to possession of powder cocaine and cocaine base with the intent to distribute in violation of 24 U.S.C. § § 841(a)(1) and 841(b)(1)(A). Davenport argues that the district court erred in not suppressing the physical evidence seized from his residence because no exigent circumstances justified the warrantless entry and search. He also claims that the district court erred in concluding that the controlled substance involved was crack cocaine, and in imposing a dangerous weapon enhancement under U.S.S.G. § 2D1.1(b)(1) For the reasons that follow, we will affirm. I. Background On January 6, 2000, a cooperating informant acting at the direction of the Drug Enforcement Agency, placed a series of monitored telephone calls to Davenport during which he negotiated the purchase of approximately 5.5 ounces of crack cocaine for $5,000. During those calls, Davenport stated that he would “cook” the cocaine himself from powder he had at his residence at 1006 Anchorage Street, Wilmington Delaware. Thereafter, the informant went to that address, and received approximately 153.2 grams of crack cocaine from Davenport for $5,000. Subsequent chemical analysis determined that the substance Davenport sold on that occasion was a mixture of cocaine base and benzocaine weighing 153.2 grams. From February 15, 2000, through February 17, 2000, Davenport had a series of monitored telephone conversations with the informant as well as another meeting at 2 Davenport’s residence. During those conversations, the informant negotiated the purchase of approximately nine ounces of “crack” from Davenport at a price of $1,050 per ounce. On March 3, 2000, DEA agents again monitored a telephone conversation between the informant and Davenport. During that conversation, Davenport stated that he had the nine ounces of crack and would deliver it to the informant later that same day at Davenport’s Anchorage Street residence. A few hours later, at approximately 5:00 pm, DEA agents arrested Davenport several blocks away from his home. Shortly thereafter, the agents entered Davenport’s residence without a warrant. Once inside, they apparently waited for confirmation that a search warrant had been obtained from a magistrate judge. After agents confirmed that a search warrant had been obtained, they began searching Davenport’s residence. While searching the kitchen they found approximately 240.8 grams of a substance they believed to be crack cocaine, approximately 125 grams of powder cocaine, a digital scale, a pot containing cocaine residue, a case for a handgun, and a magazine for a .9mm handgun. That magazine fit a .9mm handgun they subsequently found in Davenport’s second floor bedroom. Based upon this investigation and search, a federal grand jury returned a three count indictment charging Davenport with distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count I); possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count II); and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1))C) (Count III). Following indictment, Davenport moved to suppress the physical evidence that had 3 been seized during the search of his residence. He argued that since police entered his home without a warrant and without exigent circumstances, all of the “fruits” of that search were tainted and had to be suppressed. He insisted that the warrant that was subsequently obtained was irrelevant because police had nearly an hour to search and/or plant evidence before the warrant was ever obtained. The district court denied Davenport’s suppression motion. The court reasoned that, even assuming arguendo that the initial warrantless entry was illegal, the evidence was nevertheless admissible under the “independent source” doctrine pursuant to the holding in Segura v. United States, 468 U.S. 796 (1984). However, before making that ruling, the court gave Davenport an opportunity to present any evidence he had that police either seized evidence before obtaining the warrant, or that they “planted” some or all of the evidence they seized. Davenport responded to the court’s invitation for such a hearing by sending a letter advising that a hearing on that issue was not necessary because he had no proof to support those claims. Accordingly, the court declined to accept Davenport’s unsupported allegation. Rather, the court concluded that Davenport’s involvement with the informant furnished probable cause, and that the search warrant was not based upon anything police learned from their initial intrusion. Accordingly, the court concluded that the evidence was obtained independently of the initial warrantless entry, and denied the motion to suppress. Thereafter, Davenport appeared before the district court and pled guilty to Count II of the indictment pursuant to a written plea agreement that contained a stipulation as to the 4 weight and identity of controlled substances attributable to Davenport for purposes of sentencing. In that Plea Memorandum, Davenport and the government agreed that 394 grams of “crack” cocaine base were attributable to him along with 125 grams of powder cocaine. Moreover, during the Rule 11 colloquy, the district court specifically stated the weight of the drugs involved in Count II, and told Davenport that the substance involved was “crack” cocaine base. Davenport indicated that he understood the charge against him, and admitted that he was pleading guilty to knowingly possessing with intent to distribute the substance attributed to him. At no point during the colloquy did Davenport object to characterizing the substance as “crack” cocaine, or suggest that the “cocaine base” stipulated to in the plea agreement was anything other than “crack.” Following the court’s acceptance of the plea, but prior to sentencing, Davenport did request a hearing on the identity of the controlled substance attributed to him. The court responded by noting that Davenport had already stipulated to the identity of the substance and informing Davenport that it would not conduct a hearing on that issue so long as the government had disclosed its lab report to him. However, the court did give Davenport the option of proceeding with the sentencing under the terms of the plea agreement, or withdrawing his guilty plea and proceeding to trial. Following a brief recess, Davenport informed the court that he had decided to proceed to sentencing. At sentencing, Davenport objected to enhancing the sentence for possession of a firearm in connection with the drug distribution under the guidelines noting that he had not 5 agreed to any such enhancement in the plea agreement. However, after hearing testimony and argument on that issue, the court imposed a two level enhancement pursuant to U.S.S.G. § 2D1.1(b)(1). The court also granted a three-point downward adjustment based upon Davenport’s acceptance of responsibility. Davenport was then sentenced to 168 months of imprisonment followed by a term of supervised release. This appeal followed.1 II. Discussion As noted above, Davenport makes three arguments on appeal. We shall take each argument in turn. A. The Suppression Ruling Davenport argues that “the warrantless entry into [his] residence . . . was, ab initio, unreasonable and its unreasonable, ‘bad in law’ character should not change because it was followed by a search pursuant to a lawful warrant.” Appellant’s Br. at 23. However, Davenport did not preserve this argument by entering a conditional guilty plea. Rather, his plea was an unconditional one pursuant to a plea agreement that did not include any suggestion that Davenport was preserving the right to challenge the suppression ruling. Accordingly, his challenge to the suppression ruling has been waived. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Moreover, Davenport could not prevail on this argument even if he had not waived it. Even now, Davenport does not suggest that the DEA agents actually planted 1 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. 6 evidence, or that they used evidence from the initial warrantless entry to obtain the search warrant. Rather, he merely argues that the warrantless entry tainted anything that was seized thereafter because the search was void “ab initio.” However, since he concedes that there is no evidence that police either planted evidence or exploited the initial entry by relying upon it to obtain the warrant, it is clear that the district court’s application of the independent source doctrine was proper. See United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). B. The District Court Properly Attributed “Crack” to Davenport. Davenport argues that the district court erred in concluding that the cocaine base attributed to him was “crack” cocaine under the Sentencing Guidelines. “Cocaine base” as used in the guidelines “means ‘crack’ . . . the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually in a lumpy rock like form.” U.S.S.G. § 2D1.1 ©), Note (D). In order for the crack cocaine sentencing enhancement to apply under the guidelines, the government must establish by a preponderance of the evidence that the cocaine base attributable to the defendant is “crack” under U.S.S.G. § 2D1.1. United States v. Holman, 168 F.3d 655 (3d Cir. 1999). Davenport’s challenge to this enhancement is based upon our decision in United States v. James, 78 F.3d 851, 855 (3d Cir. 1996), wherein we noted that Congress did not intend to apply the § 2D1.1 enhancement to forms of cocaine base other than crack cocaine. In James, we stated that although a sentencing court can consider a defendant’s admissions during a guilty plea colloquy in determining if the crack enhancement applies, a 7 “casual reference” by the government to crack during a plea colloquy does not satisfy the government’s burden. See also, United States v. Dent, 149 F.3d 180 (3d Cir. 1997); and United States v. Roman, 121 F.3d 136 (3d Cir. 1997). Davenport therefore argues that the references to crack on this record are not sufficient to support the sentencing enhancement under the Sentencing Guidelines. The laboratory report establishes that sodium bicarbonate was not present in the cocaine base attributed to Davenport under Count II. Davenport reminds us that the report describes the 153.2 gram seizure as “cocaine base plus benzocaine,” and the report only refers to the 240.8 gram seizure as “cocaine base.” He then claims that since the DEA laboratory report does not conclude that the substance seized from him was crack cocaine, the government’s proof was not sufficient to apply the enhancement for crack cocaine. See Appellant’s Brief at 28. Davenport’s argument is therefore bottomed on the chemical analysis which concluded only that the analyzed substance was “cocaine base” and that a sample included benzocaine. Id., at 29. Davenport insists “One Hundred and Fifty Three point Two (153.2) grams of controlled substance were determined to be cocaine base plus benzocaine, which is not ‘crack’ cocaine.” Id. However, we recently clarified that the sentencing enhancement for what is commonly referred to as “crack” does not turn on the presence of any particular cutting agent. Thus, although crack is usually produced by “cutting” cocaine powder with sodium bicarbonate, the absence of any particular additive does not establish that a drug is something other than “crack.” United States v. Waters, 313 F.3d 151, 156-7 (3d. Cir. 8 2002). Moreover, the plea agreement that Davenport freely entered into with the government stipulates that 394 grams of “crack” cocaine base, and 125 grams of powder cocaine would be attributed to him for purposes of sentencing. See App. Exh. B at ¶ 3. Paragraph 2 of that agreement further provides that Davenport stipulated that he “possessed with the intent to distribute more than 50 grams of the ‘crack’ form of cocaine base.” Id., at ¶ 2. As noted earlier, Davenport’s plea was entered unconditionally and he has therefore waived any issue as to the identity of the controlled substance that he stipulated to. It is axiomatic that “[a] knowing and voluntary plea constitutes an admission of all material facts alleged in the indictment, even where those facts are not essential elements of the offense charged.” United States v. Faulks, 143 F.3d 133, 138-39 (3d Cir.1998). Ironically, we have tried to minimize the very problem exemplified by Davenport’s challenge to the enhancement by encouraging prosecutors to incorporate stipulations as to the identity of the drugs into plea agreements. In United States v. Roman, 121 F.3d 136, 141 n.4 (3d Cir. 1997), we stated: [W]here a written plea agreement is entered questions of notice and proof at sentencing could be greatly minimized by simply including language in the plea agreement by which a defendant acknowledges the identity of the drugs involved. That is precisely what occurred here, yet Davenport still attempts to argue the district court erred in concluding that the enhancement for crack cocaine applied. We reject Davenport’s eleventh hour attempt to rescind the stipulation he freely entered into in his plea 9 agreement.2 Accordingly, we conclude that the district court did not err in concluding that the record supported application of the “crack enhancement” under the Sentencing Guidelines.3 C. The Firearms Enhancement Was Properly Applied. Davenport argues that the district court erred in applying a two level enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). He claims that the evidence was not sufficient to establish the necessary nexus between the firearm and his drug activity. We review the court’s conclusion that Davenport possessed weapons in furtherance of his drug activity under a clearly erroneous standard. We will reverse that factual determination only if we are left with a definite and firm conviction that a mistake has been made. United States v. Demes, 941 F.2d 220 (3d Cir.1991). The relevant provision of the guidelines provides for a two level increase if a firearm is possessed in connection with the offense of conviction. U.S.S.G. § 2D1.1(b)(1). 2 Moreover, while negotiating the sale of these drugs with the DEA informant, Davenport consistently referred to the drugs as “crack,” and he also referred to himself as a “cooker.” This is clearly a reference to the process of converting cocaine powder into crack cocaine. See Waters, 313 F.3d at 156. 3 We also reject Davenport’s attempt to distinguish between drugs actually seized from him, and drugs attributable as “relevant conduct” for the same reasons. See Appellant’s Br. at 32. (“[T]he government intermingled the amount of controlled substances that should have been attributed for purposes of the underlying offense with amounts of controlled substance that might have been considered as ‘relevant conduct’ for purposes of enhancement.”). The distinction Davenport attempts to draw is illusory. The enhancement applies to drugs charged in a count of conviction as well as to drugs attributed as relevant conduct. U.S.S.G. § 1B1.3, United States v. Pollard, 986 F.2d 44, 47 (3d Cir.1993). 10 Application Note 3 to § 2D1.1.(b)(1) states that "[t]he adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was not connected with the offense." See U.S.S.G. §§ 2D1.1(b)(1), 2D1.1, comment. (n.3), 18 U.S.C.A. Thus, the government is not required to prove that a given weapon was actually used in relation to the charged offense. See, e.g., United States v. Price, 13 F.3d 711, 732-33 (3d Cir.1994). Here, the undisputed facts of record establish that Davenport was using his home to sell cocaine. Davenport sold the informant drugs there on one occasion, and the informant arranged another purchase from that location that was to take place on the day Davenport was arrested. While searching Davenport’s home police fond a .9mm handgun at the very time Davenport had arranged to sell more drugs to the informant. As noted above, that gun was found in a bedroom on different floor than the drugs and drug paraphernalia. However, during the sentencing hearing, Detective Henry Cannon, a fifteen year veteran police officer with experience in both the Wilmington Police drug unit and the DEA Task Force, testified that drug dealers typically use firearms to protect their product, cash and personal well being. Moreover, even though the gun was not found in close proximity to the drugs or drug paraphernalia, a loaded magazine that fit the gun was nearby as was other evidence that the firearm was used in connection with the drug business. Accordingly, we hold that the district court's factual findings were not clearly erroneous and that the court did not err in imposing the two-level firearm enhancement. 11  IV. For the foregoing reasons we will affirm the sentence imposed by the district court. TO THE CLERK: Please file the foregoing opinion. /s/ Theodore A. McKee Circuit Judge 12