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919 N.E.2d 560 (2009) BROWN v. STATE. Supreme Court of Indiana. December 17, 2009. Transfer denied. All Justices concur. (Appellant's Petition for Transfer.).

Case: 13-11873 Date Filed: 05/27/2014 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-11873 Non-Argument Calendar ________________________ D.C. Docket No. 6:12-cr-00228-RBD-KRS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CASEY DICKERSON, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (May 27, 2014) Before MARCUS, MARTIN and FAY, Circuit Judges. PER CURIAM: Casey Dickerson appeals following his convictions for aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a) (Count One), and sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a) (Count Two). Dickerson was sentenced  Case: 13-11873 Date Filed: 05/27/2014 Page: 2 of 9 240 months’ imprisonment for Count One and 120 months’ imprisonment for Count Two, to run concurrently. On appeal, Dickerson argues that: (1) the court’s supplemental jury instruction indicating that force could be implied from a disparity in coercive power or size impermissibly lowered the government’s burden to prove force; (2) his convictions violate the Fifth Amendment’s prohibition against double jeopardy; and (3) his trial attorney provided ineffective assistance of counsel. After careful review, we affirm. Typically, we review de novo the legal correctness of a jury instruction, United States v. Webb, 655 F.3d 1238, 1249 n.8 (11th Cir. 2011), and a double jeopardy challenge, United States v. Smith, 532 F.3d 1125, 1126 (11th Cir. 2008). However, issues raised for the first time on appeal -- like Dickerson’s claims concerning the jury instruction and double jeopardy -- are reviewed for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain error review, the defendant must show: (1) error; (2) that is plain; and (3) that affects substantial rights. Id. We may then exercise our discretion to notice a forfeited error, but only if “‘the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.’” Id. (citation omitted). There is no plain error if no statute, rule, or binding precedent directly resolves the issue. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). 2  Case: 13-11873 Date Filed: 05/27/2014 Page: 3 of 9 First, we are unpersuaded by Dickerson’s claim that the district court plainly erred in instructing the jury on force. We review alleged errors in a jury instruction to assess whether the court’s charge, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues involved and were not misled. United States v. Shores, 966 F.2d 1383, 1386 (11th Cir. 1992). Under 18 U.S.C. § 2241(a), an individual is guilty of aggravated sexual abuse by force or threat where that person: (1) in a United States jurisdiction; (2) knowingly causes another person to engage in a sexual act; (3) by using force or by using threats or the fear of death, serious bodily injury, or kidnapping. As the record before us shows, the district court responded to a jury question about the legal definition of “force” with the following: The element of force, as with all the elements of the offense charged in Count One of the Indictment, must be proven beyond a reasonable doubt. This additional instruction must be considered along with all of the Court’s previous instructions. To establish force, the government need not demonstrate that the defendant used actual violence. The requirement of force may be satisfied by a showing of restraint sufficient to prevent the victim from escaping the sexual conduct. Force may also be implied from a disparity in coercive power or in size between the defendant and the victim or from the disparity [in] coercive power combined with physical restraint. Dickerson now argues on appeal that this instruction erroneously suggested that force could be implied from a disparity in coercive power or size, and impermissibly lowered the government’s burden to prove force. 3  Case: 13-11873 Date Filed: 05/27/2014 Page: 4 of 9 However, Dickerson cannot show plain error here because, as he concedes, there is no controlling authority that supports his claim. See Lejarde-Rada, 319 F.3d at 1291. Dickerson asserts that the district court’s definition of force permits the jury to convict a defendant under § 2241(a) where no physical force beyond the act of penetration is present. But, importantly, he has not established that § 2241(a) requires an element of physical force. Moreover, even if we were to review Dickerson’s claim de novo, any error in the district court’s instruction would be harmless because the victim’s testimony was that Dickerson, along with two other males, used physical force in holding her down and making her have oral and vaginal intercourse with them. See Webb, 655 F.3d at 1249 n.8 (“Jury instructions are subject to harmless error review.”). As a result, there was no error, plain or otherwise, in the district court’s supplemental jury instruction. We also reject Dickerson’s argument that -- based on the supplemental jury instruction -- the district court committed plain error by convicting him in violation of the Fifth Amendment’s prohibition against double jeopardy. Where the defendant’s same conduct violated two statutory provisions, courts first must determine whether the legislature intended each violation to be a separate offense. Garrett v. United States, 471 U.S. 773, 778 (1985). Cumulative punishments for a single instance of criminal behavior are not prohibited if the legislature clearly intended to prescribe cumulative punishments. Id. 4  Case: 13-11873 Date Filed: 05/27/2014 Page: 5 of 9 When there is no clear indication of legislative intent, however, the courts must determine whether “each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). The Supreme Court has clarified that the Blockburger test asks whether each offense contains an element not contained in the other, and establishes that double jeopardy bars additional punishment and successive prosecution if they do not. United States v. Dixon, 509 U.S. 688, 696 (1993). Where each provision requires proof of an element that the other does not, the Blockburger test is satisfied, notwithstanding “a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975). Under 18 U.S.C. § 2243(a), an individual is guilty of sexual abuse of a minor where that person: (1) in a United States jurisdiction; (2) knowingly engages in a sexual act; (3) with another person who is between the ages of 12 and 16 and is at least 4 years younger than the offender. Describing both § 2241(a), which we’ve paraphrased above, and § 2243(a), the House Report for the Sexual Abuse Act of 1986 states: Whether a sexual act involving a minor less than 16 years old is criminal (and, if it is, the severity of the offense) will depend upon the circumstances involved. If the young person is between the ages of 12 and 16, and if force is used or if threats of death, serious bodily harm, or kidnapping are involved, the applicable provision is proposed section 2241(a). If the child is less than 12 years old and if force is used or threats of death, serious bodily harm, or kidnapping are involved, both proposed section 2241(a) and proposed section 2241(c) are applicable. If the young person is between the 5  Case: 13-11873 Date Filed: 05/27/2014 Page: 6 of 9 ages of 12 and 16, and other threats are used, the applicable provision is proposed section 2242(1). If the child is less than 12 years old, the applicable provisions are proposed sections 2241(c) and 2242(1). If the offender renders a young person between the ages of 12 and 16 unconscious or administers a drug to that young person (by force, threats, or without the knowledge or permission of the child), then the applicable provision is proposed section 2241(b). The applicable provisions are proposed sections 2241(b) and 2241(c) if the child is under 12. If none of those factors are involved, however, then the ages of the participants are important. If the victim is less than 12 years old, then there is an offense whatever the age of the other party. If the young person is at least 12 but not 16 years old, however, the age of the other party becomes relevant. If the other person is 4 or more years older than the young person, then there is an offense under proposed section 2243(a). If the young person is not 4 or more years younger than the other person, then there is no offense. H.R. Rep. 99-594 at 17. Here, Dickerson once again cannot show plain error because there is no controlling authority that supports his claim. See Lejarde-Rada, 319 F.3d at 1291. Looking to the legislative intent, it is ambiguous whether Congress intended to allow cumulative punishments for his underlying conduct. Regardless, under the Blockburger test, § 2241(a) and § 2243(a) require proof of an element that the other does not. See Iannelli, 420 U.S. at 785 n.17. Under § 2241(a), a defendant is only guilty if he uses some sort of force or threats to cause another person to engage in a sexual act, and there is no age element. Under § 2243(a), no such force or threat of force is required, but there is an age element in that the other person must be between the ages of 12 and 16 and be at least 4 years younger than 6  Case: 13-11873 Date Filed: 05/27/2014 Page: 7 of 9 the defendant. Accordingly, the district court did not err, plainly or otherwise, concerning Dickerson’s double jeopardy claim. Finally, we decline to consider Dickerson’s claim that his trial counsel provided ineffective assistance by conceding that he committed the act of having sex with a minor but failing to argue the affirmative defense that he believed that the victim was older than 16. We generally do not consider claims of ineffective assistance of counsel raised on direct appeal “where the district court did not entertain the claim nor develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). An appellate court usually cannot adequately decide an ineffective-assistance-of-counsel claim raised for the first time on direct appeal because the focus at trial was not whether defense counsel’s actions were prejudicial or supported by reasonable strategy. Massaro v. United States, 538 U.S. 500, 504 (2003). The preferable means for deciding a claim of ineffective assistance of counsel is through a habeas corpus petition, “even if the record contains some indication of deficiencies in counsel’s performance.” Id. The ineffective-assistance-of-counsel test is comprised of two prongs: (1) deficient performance; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687-89 (1984). The Supreme Court has identified three exceptions to the prejudice requirement, in situations that were “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v. Cronic, 7  Case: 13-11873 Date Filed: 05/27/2014 Page: 8 of 9 466 U.S. 648, 658 (1984). One of Cronic’s exceptions is where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659. In the context of a 28 U.S.C. § 2255 motion to vacate, we have held that counsel’s tactical decision to concede a defendant’s guilt designed to lead the jury toward leniency on other charges and to provide a basis for a later argument for a lighter sentence is deemed to be effective assistance. Darden v. United States, 708 F.3d 1225, 1230 (11th Cir.), cert. denied, 133 S.Ct. 2871 (2013). Under 18 U.S.C. § 2243(c)(1), it is a defense that the defendant reasonably believed that the other person was at least 16 years old. The defendant must establish this defense by a preponderance of the evidence. 18 U.S.C. § 2243(c)(1). Here, the district court did not address the issue of ineffective assistance of counsel, and the record is not sufficiently developed for us to review whether Dickerson’s trial counsel was ineffective. See Massaro, 538 U.S. at 504-05. Given the strategic choice to make the concession that Dickerson had sex with a minor, it is possible that counsel also made a strategic decision to forego the affirmative defense that he believed the victim was over the age of 16. There simply is no evidence in the record to substantiate or disprove Dickerson’s assertions regarding counsel’s investigation and consideration of the defense. Because a factual record has not been sufficiently developed for an ineffective- 8  Case: 13-11873 Date Filed: 05/27/2014 Page: 9 of 9 assistance claim against Dickerson’s trial counsel, we will not address such a claim on direct appeal. Accordingly, we affirm. AFFIRMED. 9 

257 F.2d 760 UNITED STATES of Americav.Joel ROSENBERG, Appellant. No. 12554. United States Court of Appeals Third Circuit. Argued June 9, 1958. Decided July 22, 1958. Rehearing Denied August 15, 1958. COPYRIGHT MATERIAL OMITTED Bernard Tompkins, New York City (Herbert Edelhertz, New York City, Stanley Bernard Singer, Philadelphia, Pa., on the brief), for appellant. Louis C. Bechtle, Asst. U. S. Atty., Philadelphia, Pa. (Harold K. Wood, U. S. Atty., Philadelphia, Pa., on the brief), for appellee. Before KALODNER, STALEY and HASTIE, Circuit Judges. HASTIE, Circuit Judge. 1 For a second time in the course of this litigation we must determine whether withholding from the defendant certain data, which defense counsel had asked the government to surrender for inspection and possible use in the cross-examination of witnesses, has amounted to reversible error under the principles announced in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. On the first appeal we set aside appellant Rosenberg's conviction, holding that the "failure of the trial judge to permit counsel for the defendant to inspect at the trial the witness' grand jury testimony and statement to the F. B. I., as required by the rule announced in the Jencks case, compels us to grant a new trial." 3 Cir., 245 F.2d 870, 871. 2 A new trial followed. The defense again asked that the government produce for its examination reports and statements which might facilitate cross-examination of two prosecution witnesses. The prosecution produced all of the records it had of its dealings with these witnesses. The trial judge then examined the data to determine how much of it was relevant and potentially useful for the purposes of the defense. As a result of this examination the court permitted defense counsel to examine and use most of the data. However, the court ruled that certain items were irrelevant and, over objection, denied the defense permission to examine them. At the same time, the court did make the documents in question part of the record for our consideration on appeal. 3 The crime for which appellant has been convicted was the transporting of a check in interstate commerce after participating in the fraudulent scheme by which the check had been obtained. 18 U.S.C. § 2314. The government's theory was that the appellant had collaborated with one Meierdiercks in the entire criminal enterprise. Meierdiercks appeared and testified as an important government witness. At the conclusion of his direct testimony the defense asked that it be permitted to examine the government's records of and concerning prior statements by the witness. A similar request was made for data concerning statements of the prosecuting witness, Florence Vossler, who had been the victim of the fraudulent scheme. 4 We have examined all of the items which the defendant was not permitted to examine. Several of the documents contain no reference to, much less the text or any summation of, anything said by either witness. For example, two are office memoranda concerning the progress and procedure of a then pending prosecution of Meierdiercks. Another paper contains a detailed physical description and summary personal history of Meierdiercks. Still another is a record of an unsuccessful search for certain names on hotel registers at or about the time of the crime. These and other miscellaneous items from the prosecutor's files were obviously not germane to the request of the defendant. Why the prosecution produced them is not clear. Their surrender could not have been responsive to the defense request or to any proper request for whatever records the government had made, in verbatim text or otherwise, of prior statements of certain witnesses. 5 There was also a minute or office notation stating as a fact that, on first questioning, Meierdiercks had denied any involvement in the alleged wrongdoing. In some circumstances it might well have been improper to withhold this summary record of what the witness had said. But here Meierdiercks' first verbatim statement to the Federal Bureau of Investigation, denying implication in the wrongdoing, was among the papers surrendered to the defense. There was no point, therefore, in adding a general notation that he had made a denial of this kind. Similarly, the court withheld a typewritten copy of a later detailed statement of the witness about the crime. This too was surplusage, because the original longhand text of that very statement was surrendered to the defendant. 6 More troublesome is the fact that the court withheld from the defense a letter written to the prosecutor by the victim, Miss Vossler, just before the second trial of the case, in which she expressed concern that the lapse of time had made her recollection of details of relevant transactions hazy so that she would have to rely upon her previous detailed statement to refresh her memory. Certainly an admission by a witness to the prosecutor that time has thus dimmed her recollection of events as to which she is to testify is a type of statement which should be made available to the defense under the Jencks rule. But after examination of the actual testimony of Miss Vossler we think it clear that the defendant suffered no prejudice from this error. First, on cross-examination this witness was in fact questioned as to whether she had used any prior statement or testimony in preparing for this second trial. She admitted quite forthrightly that she had read her former statement a few days before the trial. Moreover, defense counsel was allowed great latitude on cross-examination in testing what the witness said on this trial by comparing her testimony with earlier statements made in and out of court. There was no pretense by the witness that she remembered details of remote transactions as well as one would remember a very recent occurrence. And, absent any effort of the witness to create such an impression of unusually good memory, her pre-trial statement that time had dimmed her recollection merely admitted a fact of universal experience and common knowledge, of which the jury must have been aware in any event. Finally, no contested issue in this case depended upon the exactitude of this witness' recollection of details of remote transactions. In all the circumstances, we are unable to see any way in which the defense may have been prejudiced by the withholding of this statement. 7 Appellant is also dissatisfied with the timing of the surrender of the documents he was permitted to examine. He says that he should have received these records before the beginning of the trial rather than after the witness in question was called to testify. The Jencks rule is designed solely to facilitate proper cross-examination. Cf. United States v. Grossman, D.C.D.N.J.1957, 154 F.Supp. 813. If the requested records are made available during the trial before cross-examination of the witness concerned, and counsel is allowed reasonable time to examine the data and analyze it in relation to the exigencies of of cross-examination, the Jencks rule is satisfied. Here the documents concerning Meierdiercks, aggregating thirty-five pages, were in the possession of the defense from adjournment on Monday afternoon until cross-examination of this witness began at 2 P.M. on Tuesday. This was a reasonable time in all the circumstances. The records concerning Miss Vossler consisted of only nine pages. A two hour luncheon recess and an additional forty minute recess were allowed for examination of this data before cross-examination began. And even on this appeal counsel does not point out any way in which the material concerning either witness would have been more useful, had more time been given to study and analyze it before cross-examination. Therefore, we think the appellant has no valid complaint on this score. 8 We have not commented upon the statute, 18 U.S.C. (Supp. V) § 3500, enacted since the Jencks case to define procedure in administering the Jencks rule, since, regardless of procedure, we have found no prejudicial withholding of anything to which defendant was entitled under the Jencks rule. We do note, however, that the government did not identify any particular documents or particular portions of documents which in its view should not be disclosed to the defendant. The statute seems to contemplate that the government shall thus particularize any objection it may have, rather than that the court search at large through whatever documents the prosecution may tender in an effort to determine what is relevant and what is not. And if the government does not thus particularize its objections, we see no reason why the court should not routinely permit the defense to inspect whatever the government produces in response to a proper request. 9 A wholly different matter is urged as a separate reason for a new trial. The appellant complains of the trial court's refusal to grant a continuance just before the beginning of the trial, when it appeared that one of counsel, upon whom the appellant had relied to take chief responsibility for conducting his defense, had become ill and could not be present at the trial. However, the force of appellant's argument is blunted by the fact of unwarranted delay in presenting this matter in the court below. The attorney in question is a Boston lawyer. This case was listed on the trial calendar to be called in Philadelphia Monday morning. The preceding day, Sunday, the defendant was in Boston and learned that his Boston attorney required immediate surgery and could not come to Philadelphia. This information was communicated that day by telephone to defendant's Philadelphia counsel. Yet, on Monday morning when the trial calendar was called, Philadelphia counsel answered "ready for trial". The judge who was administering the calendar then routinely assigned the case for trial to another judge, who happened to have presided at the first trial. It was not until the following day, Tuesday, that Philadelphia defense counsel asked for a continuance because of the necessary absence of chief counsel. Thus, for no apparent good reason the defendant postponed any request for continuance beyond the first and normal opportunity afforded by the calendar call and until it was determined which judge would try the case.1 For us as a reviewing court this circumstance alone is sufficient to preclude interference with the trial court's refusal to grant the delayed motion for a continuance. 10 Other trial errors are alleged on this appeal. Most of them concern the introduction of evidence and the giving of instructions to which trial counsel interposed no objection. In none of these episodes do we find that appellant has suffered prejudice or injustice, or that the trial court has committed reversible error. 11 The judgment will be affirmed. Notes: 1 Unquestionably the defense was unhappy about this trial assignment, for counsel in open court frankly expressed his fear that the assigned judge would not have an open mind about the case because of his experience in trying it before

930 F.2d 520 UNITED STATES of America, Plaintiff-Appellee,v.Bernardo PELAEZ, Defendant-Appellant. No. 89-2284. United States Court of Appeals,Sixth Circuit. Argued March 21, 1991.Decided April 16, 1991. Jennifer J. Peregord, Stephen J. Markman, U.S. Atty. (argued), Eric M. Straus, Asst. U.S. Atty., U.S. Dept. of Justice, Detroit Strike Force, Detroit, Mich., for plaintiff-appellee. Richard M. Lustig, Robyn B. Frankel (argued), Lustig & Friedman, Birmingham, Mich., for defendant-appellant. Before KEITH and MARTIN, Circuit Judges, and CONTIE, Senior Circuit Judge. CONTIE, Senior Circuit Judge. 1 Defendant-appellant, Bernardo Pelaez, appeals his jury conviction and sentence for conspiracy to possess with intent to distribute and distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. For the following reasons, we affirm in part and reverse in part. I. 2 On November 4, 1983, defendant was charged in a multi-count indictment, along with twenty-eight others, with conspiracy to possess with intent to distribute and distribution of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On December 8, 1983, defendant was arrested in Florida by DEA agents pursuant to an arrest warrant. Defendant was arraigned on the federal indictment in the Eastern District of Michigan on December 21, 1983. A surety bond in the amount of $200,000, which had previously been provided in a Florida proceeding, was transferred and defendant was released pending trial. 3 On January 27, 1984, defendant appeared in court with his attorneys for a hearing on several pretrial motions. A trial date of March 6, 1984 was set by the court. Shortly afterwards, defendant fled to Colombia. 4 The district court granted the government's motion for permission to proceed with the trial in absentia. A jury trial was begun on March 8, 1984, and on April 3, 1984, defendant was found guilty on count one. Defendant's bond was forfeited, and a bench warrant was issued for his arrest on May 18, 1984. Counsel for defendant filed a motion opposing the sentencing of defendant in absentia. The district court granted the motion. 5 On December 5, 1985, the Assistant U.S. Attorney filed a petition pursuant to a 1981 extradition treaty between the United States and Colombia to hold the defendant for purposes of extradition to the United States. The defendant was held in custody in Colombia for a period of 21 months until the Colombian Supreme Court ruled, in an Order dated July 30, 1987, that because the conspiracy in this matter occurred prior to the 1981 extradition treaty between the parties, the United States could not extradite the defendant from Colombia. Defendant was subsequently released from custody in Colombia in December 1987. 6 On September 13, 1989, Colombian authorities again arrested defendant in Colombia. On October 15, 1989, defendant was "extradited" to the United States for sentencing in the present case. On November 7, 1989, a sentencing hearing was held before the district court. 7 At the time of the sentencing hearing, a number of motions were before the court including defendant's motion to be returned to Colombia, alleging an illegal extradition, and a motion for the court to order that defendant be allowed credit for the time he had served while awaiting extradition in Colombia. Defendant's motion to be returned to Colombia was deferred until after sentencing. Defendant's motion for allowance of credit for time served was denied for failure to exhaust administrative remedies. 8 Upon completion of these matters, the court asked whether either the defendant or his attorney had anything to say about why the sentence of the court should not be imposed. Defendant's counsel responded, requesting that the sentencing hearing be delayed, but this request was denied. At the conclusion of the discussion, the court stated: 9 The relief that the defendant seeks [return to Colombia] can be done after sentence is imposed and I think more appropriate after I impose the sentence. Therefore, unless there is something more that either counsel cares to address the Court, I--and I think there isn't. Both counsel have addressed the Court as they're entitled to do. 10 The court proceeded to sentence the defendant to 15 years imprisonment and ordered him to pay a $25,000 committed fine. The court recessed at 10:42 a.m. 11 At 12:45 p.m. the court reconvened. The court then stated: 12 Let the record show that I have reconvened the Court to overcome, perhaps, not giving both the defendant and his attorney the opportunity to address the court with respect to the imposition of the sentence and the consequences.... 13 The court subsequently addressed both defense counsel and defendant and specifically asked whether or not the defendant wished to say anything to the court about mitigation of punishment. Lengthy statements were made by both defendant and his counsel. The defendant made statements regarding his personal life and minor role in the conspiracy and he pled for mitigation. 14 At the close of this proceeding, defense counsel asked that the court modify the sentence previously imposed based on his and his client's statements. The court replied that he could not conscientiously reduce the sentence and then stated "[as] far as reconsidering the sentence, that wasn't the purpose of having you back." On November 11, 1989, the final judgment was issued. Subsequently, on January 18, 1990, the district court denied defendant's motion to be returned to Colombia. 15 Defendant timely filed this appeal. II. 16 This court must first determine whether the district court insufficiently complied with Fed.R.Crim.P. 32(a)(1)(C) by failing to address defendant Pelaez concerning mitigating circumstances prior to the imposition of sentence. 17 Fed.R.Crim.P. 32(a)(1)(C) mandates that 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." This subsection of Rule 32 expressly incorporated the holding in Green v. United States, 365 U.S. 301, 304-05, 81 S.Ct. 653, 655-56, 5 L.Ed.2d 670 (1961), in which the Supreme Court stated that a sentencing court was required to afford the defendant an opportunity to speak personally in his or her own behalf. This circuit has stated in United States v. Thomas, 875 F.2d 559 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 189, 107 L.Ed.2d 144 (1989) that maximum compliance with Green is expected and that it would construe Rule 32 quite literally. "Before the conclusion of the sentencing hearing, the district judge must personally and unambiguously invite the defendant to speak in his own behalf." Id. at 563 (emphasis in original). 18 In the present case, the district court did address the defendant, stating: 19 Well, first of all I think I will inquire of the defendant and his attorney if either the defendant or his attorney have anything to say why the sentence of the Court should not be imposed other than what has been already referred to and is--by the Sentencing Memoranda and the two motions filed by the defendant. 20 However, the district court did not specifically invite the defendant to present any information in mitigation of the sentence. The Court of Appeals for the Fifth Circuit, in United States v. Sparrow, 673 F.2d 862, 864 (5th Cir.1982), disapproved of the omission of this specific language. In the present case, not only was this language omitted, but also at the conclusion of the hearing in which defendant had said nothing, the district court stated, "Therefore, unless there is something more that either counsel cares to address the court, I--and I think there isn't. Both counsel have addressed the court as they're entitled to do." Under these circumstances, we do not think the court sufficiently determined if the defendant wished to make a statement and present any information in mitigation of the sentence. See United States v. Byars, 290 F.2d 515, 517 (6th Cir.) (no inquiry was made directly to defendant whether he wished to make a statement in his own behalf before sentence was imposed), cert. denied, 368 U.S. 905, 82 S.Ct. 185, 7 L.Ed.2d 99 (1961); but see United States v. Franklin, 902 F.2d 501, 507 (7th Cir.) (court is not required to renew its invitation to defendant to make any statement he wanted in mitigation of sentence at end of hearing when neither defendant nor his counsel indicated that defendant wished to speak), cert. denied, --- U.S. ----, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). 21 The government argues that any deficiency in the application of Fed.R.Crim.P. 32(a)(1)(C) was cured when the district court reconvened and invited defendant to discuss mitigating circumstances. The court apparently became aware of its prior error, because two hours later it reconvened "to overcome, perhaps, not giving both the defendant and his attorney the opportunity to address the Court with respect to the imposition of the sentence and the consequences." The defendant accepted the invitation of the court and argued that he collected the money for the drugs but never delivered the drugs, that his minor role in the conspiracy was not to bring cocaine into the United States, and that he wanted to return to Colombia to be with his wife and child whom the drug lords had threatened to torture or kill. 22 Defendant's counsel asked to present witnesses to testify about defendant's minor role in the conspiracy, but the district court properly declined, stating that that would be going beyond the record and was beyond the scope of the hearing. The district court also listened to defense counsel's objections to statements made in the presentence report and agreed to several deletions and changes requested by defendant. 23 However, when defendant's counsel requested that the court modify the sentence, the following colloquy took place: 24 THE COURT: Well, I've already imposed the sentence, and the sentence would stand unless I modify it. 25 MR. LUSTIG: [defendant's counsel] That's what we're asking you--I ask that you modify it, and-- 26 THE COURT: Well-- 27 MR. LUSTIG: --the Government asks-- 28 THE COURT: --frankly, Mr. Lustig, I can't conscientiously do that because I think the overall picture is that this defendant was the source of a large amount of cocaine coming into the United States, and I think it--where he fled the country and deprived himself of the right to be present to assist you and to even possibly testify. He fled, jumped his bail, and he's responsible for his own acts, so I don't think I--I can't conscientiously reduce that sentence if that's what you're asking the Court to do. 29 MR. LUSTIG: Well, then I don't understand the purpose of returning if you couldn't conscientiously do that. 30 THE COURT: Well, I was just seeing if there's anything you could modify here. That's only--I was--I--far as reconsidering the sentence, that wasn't the purpose of having you back because the posture of this case at the time that came up is that you were--I didn't want this defendant to be deprived of the right to address the Court. You addressed the Court at some length, and then you went on as--even this afternoon on the--renewed this sentencing procedure. You addressed the Court again and the defendant has addressed the Court, and that was the only purpose of having you back. 31 We find that the remark, "[as] far as reconsidering the sentence, that wasn't the purpose of having you back," indicates that although the district court agreed to listen to the defendant's statements in his behalf, the court had no intention of reconsidering the sentence and defendant's right of allocution was thus effectively denied. See Sparrow, 673 F.2d at 864-65. For this reason, we reverse the district court on this issue and remand the case for resentencing so that defendant may exercise his right of allocution under Fed.R.Crim.P. 32(a)(1)(C). III. 32 We must next determine whether the district court erred in refusing to credit defendant with time previously served in custody for this offense. 33 Defendant seeks sentencing credit under 18 U.S.C. Sec. 3568, which provides that "[t]he Attorney General shall give [a prisoner] credit towards service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." Although this section was repealed by the Sentencing Reform Act, its provisions remain applicable to offenses committed prior to November 1, 1987. 34 The government contends that the defendant must first exhaust administrative relief from the Bureau of Prisons before filing a motion for sentence credit in district court. We agree. Since the Attorney General had delegated the right to make the determination of sentence credit to the Bureau of Prisons,1 courts have held that the district courts are without jurisdiction to entertain sentence credit motions unless the defendant has first sought administrative relief through the administrative procedures within the Bureau of Prisons. Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985); United States v. Mathis, 689 F.2d 1364, 1365 (11th Cir.1982). 35 Defendant concedes that he has not yet received an initial determination from the Bureau of Prisons regarding credit for time allegedly served in the United States and Colombian prisons prior to sentencing. He asks this court to order the Bureau of Prisons to credit him with the time previously served for the offense. Only after defendant has received a determination from the Bureau of Prisons and exhausted the administrative remedies available to him does this court have jurisdiction to review that determination. The district court did not err in refusing to credit defendant with time previously served in custody for this offense because defendant has failed to exhaust administrative remedies. IV. 36 Finally, this court must determine whether the district court erred in denying defendant's motion seeking to be returned to Colombia. 37 Defendant argues that the district court erred in refusing to divest itself of jurisdiction over him and return him to Colombia because the Fifth Amendment's due process clause was violated by his alleged "forcible abduction" from Colombia. Defendant relies on United States v. Toscanino, 500 F.2d 267 (2d Cir.1974), a Second Circuit opinion in which the court recognized the possibility that the declination of jurisdiction might be required "as the result of the government's deliberate, unnecessary and unreasonable invasion of the accused's constitutional rights." Id. at 275. In Toscanino, the defendant alleged that he had been abducted and tortured by United States agents during extradition to the United States. 38 In contrast, in the present case, defendant did not contend below, and does not contend on appeal, that United States officials had any involvement whatsoever in his extradition from Colombia in September 1989. Instead, he acknowledges in his motion that he was rearrested by the Colombian authorities. In addition, as noted by the district court, defendant filed no affidavit in support of his motion nor did he allege or argue that any degree of physical force or brutality was involved in his arrest in Colombia as was the case in Toscanino.2 39 A forcible abduction in itself does not offend due process or require dismissal of an indictment. Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421 (1886) (the power of a court to try a person for a crime is not impaired by the fact that he has been brought within the court's jurisdiction by reason of a "forcible abduction"); Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952) ("This court has never departed from the rule announced in Ker "). Although notions of due process have been expanded since Frisbie, the Supreme Court has consistently reaffirmed the Ker-Frisbie doctrine by application of the rule that the body or person of a defendant is never "suppressible as a fruit of an unlawful police arrest" or detention. Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984); see also United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975). 40 The Fifth, Seventh, and Eleventh Circuits have refused to adopt a "Toscanino exception" to the Ker-Frisbie doctrine. Matta-Ballesteros v. Henman, 896 F.2d 255, 263 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990); United States v. Darby, 744 F.2d 1508, 1531 (11th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985); United States v. Winter, 509 F.2d 975, 986-88 (5th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975). 41 Even if Toscanino were a valid exception to Ker-Frisbie, its rationale is wholly inapplicable to the case at bar. First, Pelaez was a fugitive from justice. There is a difference between a person who submits to the jurisdiction of a criminal court and then flees, and one who stays away and never appears in the criminal proceeding at all. See United States v. Reed, 639 F.2d 896, 903 (2d Cir.1981). Second, Pelaez acknowledges that United States officials had no involvement in his seizure and removal from Colombia. United States v. Lira, 515 F.2d 68, 70-71 (2d Cir.) (Toscanino not applicable if alleged mistreatment was not at the hands of United States officials), cert. denied, 423 U.S. 847, 96 S.Ct. 87, 46 L.Ed.2d 69 (1975). Third, Pelaez has not even alleged, much less demonstrated, that his extradition was accomplished through torture, brutality, or physical force. For all of these reasons, Toscanino is not applicable and the district court's denial of Pelaez's motion for return to Colombia should be affirmed. V. 42 To conclude, the decision of the district court is AFFIRMED in part and REVERSED in part. Until administrative remedies are exhausted, the district court does not have jurisdiction to make a determination on sentencing credit. The decision of the district court to deny defendant's motion to be returned to Colombia is AFFIRMED. The district court's imposition of sentence is REVERSED. Because defendant's right of allocution was denied, the case is remanded to the district court for resentencing. 1 28 C.F.R. Sec. 0.96 states that "[t]he Director of the Bureau of Prisons is authorized to exercise or perform any of the authority, functions, or duties conferred or imposed upon the Attorney General by any law relating to the commitment, control, or treatment of persons ... charged with or convicted of offenses against the United States." 2 On remand, the district court in Toscanino denied the defendant's motion to dismiss based upon a finding that the defendant had not submitted any credible evidence that United States agents had participated in Toscanino's abduction and torture. 398 F.Supp. 916, 917 (E.D.N.Y.1975). Furthermore, the Second Circuit narrowed the reach of Toscanino in a subsequent opinion by clarifying that a defendant must prove "torture, brutality, and similar outrageous conduct" by federal officials in order to establish a violation of the due process clause. United States ex rel. Lujan v. Gengler, 510 F.2d 62, 65 (2d Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975)

674 F.2d 1312 HORIZON MUTUAL SAVINGS BANK, formerly Bellingham FirstFederal Savings and Loan Association, Plaintiff-Appellant,v.FEDERAL SAVINGS & LOAN INSURANCE CORPORATION, an agency ofthe United States government, Defendant-Appellee. No. 81-3029. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1982.Decided April 21, 1982. John S. Ludwigson, McCush, Kinsbury, O'Conner, Ludwigson, Thompson & Hayes, Bellingham, Wash., for plaintiff-appellant. Paul W. Grace, Washington, D.C., argued, for defendant-appellee; Harvey Simon, Washington, D.C., on brief. Appeal from the United States District Court for the Western District of Washington. Before SNEED, ANDERSON and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 Horizon Mutual Savings Bank appeals from an order granting summary judgment in favor of defendant, the Federal Savings & Loan Insurance Corporation (FSLIC). Horizon terminated its insurance with FSLIC on November 9, 1979, but FSLIC did not return Horizon's reserve account funds until January 10, 1980. Interpreting its own regulations, FSLIC concluded that Horizon was not entitled to "a return" on this money. The district court limited its review to determining whether or not FSLIC's decision had a rational basis, and found that FSLIC's interpretation was not demonstrably irrational. We affirm. 2 Horizon converted from a savings and loan association to a mutual savings bank and terminated its insurance with FSLIC on November 9, 1979. Institutions insured with FSLIC are required to pay annual premiums into FSLIC's primary reserve account, and from 1962 until August 1973, additional payments of future premiums were paid into the secondary reserve fund. These reserves are the source of insurance payments to individuals should an institution fail. When insurance is terminated, FSLIC must refund an institution's pro rata share of the secondary reserve. After normal processing, Horizon's pro rata share of the secondary reserve fund was forwarded to it by FSLIC on January 10, 1980. 3 FSLIC is required by 12 U.S.C. § 1727(e) (1976) to credit the secondary reserve fund with "a return" on the outstanding balances in that account "as of the close of each calendar year," at a rate determined by FSLIC.1 A "return" represents FSLIC's earnings on funds held in the secondary reserve account. Horizon's pro rata share of the secondary reserve fund was computed on the basis of its interest in the fund account as it stood at the time Horizon terminated its insurance on November 9, 1979. Thus, the return for 1979 had not been credited to the secondary reserve fund at the time the computation was made. Accordingly, the pro rata share Horizon received did not include any "return" for 1979. 4 Horizon maintains that 12 C.F.R. § 563.16-2(a) (1981), a regulation adopted pursuant to section 1727(e), requires FSLIC to pay a return on funds not paid out to a terminated institution by December 31. This section provides as follows: 5 § 563.16-2 Secondary reserve. 6 (a) Annual credit to secondary reserve- 7 (1) General provisions. The Corporation shall credit to the secondary reserve, as of the close of each calendar year, a return on the outstanding balances of the secondary reserve, as determined by the Corporation, at a rate equal to the average annual rate of return to the Corporation during the year ending at the close of November 30 of such calendar year, as determined by the Corporation, on investments held by the Corporation in obligations of, or guaranteed as to principal and interest by the United States. The Corporation shall maintain records showing each insured institution's pro rata share of the secondary reserve and shall apportion the credit mentioned in the next previous sentence among all insured institutions on the basis of the average of the daily balances of their respective pro rata shares of the secondary reserve during the calendar year just closed, except as otherwise provided in this section. 8 (2) Exhaustion of pro rata shares of secondary reserve. In the event that the remainder of an insured institution's pro rata share of the secondary reserve is used to discharge a percentage of such insured institution's annual insurance premium pursuant to § 563.15(b)(2), such insured institution shall be entitled to share in the credit apportioned pursuant to paragraph (a)(1) of this section for the period between the date on which the remainder of such insured institution's pro rata share was used to discharge a percentage of that insured institution's annual insurance premium and the December 31 immediately preceding such date. Insured institutions entitled to credit pursuant to this paragraph (a)(2) shall be paid such credit in cash as soon as possible after the amount of such credit is determined by the Corporation. 9 (3) Termination of insurance. If, prior to the close of any calendar year, (i) an institution's insurance is terminated, and (ii) such institution's pro rata share of the secondary reserve is paid out of such reserve, such institution shall not receive a return on such pro rata share for such calendar year. 10 Subparagraph (1) provides for the crediting of returns, and their apportionment among insured institutions on an annual basis. It is the only part of the regulation which contains an affirmative provision for the crediting and apportionment of returns, except for a provision in subparagraph (2) which requires partial crediting and apportionment of the annual return in the case of institutions whose pro rata shares of the secondary reserve are exhausted during the calendar year as a result of the normal use of those shares for the payment of annual premiums. Horizon contends, however, that the subparagraph (1) clause "except as otherwise provided in this section," refers to subparagraph (3), thus making the provisions in subparagraph (1) subordinate to subparagraph (3). According to Horizon, subparagraph (3) prohibits payment of a return only when an institution's insurance is terminated and its pro rata share is paid out, both before the end of the year. Because Horizon terminated before year-end, but its money remained in the fund until after December 31, Horizon maintains that subparagraph (3), when read in light of the "except as otherwise provided" clause of subparagraph (1), requires the payment of a return on that money. 11 FSLIC interprets subparagraph (3) as only setting forth a prohibition, albeit a prohibition against paying a return in cases where an institution's coverage is terminated before year-end and its share is paid out. It claims that the subparagraph does not impose an affirmative duty to pay a return under any circumstances, and that the only language requiring a return is in subparagraph (1), which mandates year-end apportionment of returns only "among all insured institutions," and in subparagraph (2) which is not applicable here. FSLIC contends that an "insured institution" is one whose accounts are insured by FSLIC, and argues that because Horizon cancelled its coverage in November, it ceased to be an "insured institution" before the end of the year. Thus, FSLIC says, Horizon was not an institution entitled to be credited with a return at the time the returns for 1979 were required to be, and were, credited. 12 In response to Horizon's argument that the subparagraph (1) clause "except as otherwise provided in this section" makes the provisions in subparagraph (1) subordinate to subparagraph (3), FSLIC points out that subparagraph (3) does not provide for any crediting of payments, and that, therefore, the subparagraph (1) clause does not refer to subparagraph (3) and is not subordinate to it. FSLIC contends that the "except as otherwise provided in this section" clause refers to subparagraph (2), and only to that subparagraph, since subparagraph (2), unlike subparagraph (3), contains an affirmative provision requiring the crediting of returns.2 13 FSLIC's interpretation of its regulation is consistent with the District of Columbia Circuit's opinion in North New York Savings Bank v. Federal Savings and Loan Insurance Corp., 515 F.2d 1355, 1362 (D.C.Cir.1975), in which the court said that section 1727(e) specifically limits payment of returns. The court found that the statute permits crediting interest only at year-end, based on shares in the secondary reserve fund at that time. Horizon reads North New York as requiring only that an institution's funds remain in the secondary reserve through December 31, not that the institution remain insured with FSLIC through that date. However, the District of Columbia Circuit noted that, "there is nothing unusual about requiring a policyholder to retain its status as of a certain date in order to share in the earnings of an insurance company's reserves." Id. at 1363 (emphasis added). 14 Horizon also attempts to distinguish North New York on the ground that FSLIC's regulation, 12 C.F.R. § 563.16-2(a), was promulgated after North New York withdrew its funds, and that the regulation should now be interpreted to require FSLIC to pay Horizon a return. FSLIC has had a longstanding practice, both prior and subsequent to the adoption of the regulation, of refusing a return to institutions which terminate their insurance before the end of the year. North New York supports the proposition that there is nothing unreasonable about the common practice of paying interest, or in this case a "return," only to entities insured as of a certain date, and that FSLIC's practice conforms to the Congressional policy underlying the statute. 15 Horizon disputes FSLIC's reading of the regulation, contending that FSLIC's refusal to pay a return for 1979 was contrary to the clear intent of the regulation and that it is unreasonable to interpret subparagraph (3) in a manner contrary to its apparent meaning. 16 Horizon cites Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), in support of the proposition that a court need not defer to an agency's interpretation of a regulation where there are compelling indications that the agency is wrong. Espinoza, however, did not involve an error in an agency's construction of its own regulation but an erroneous application of an agency's interpretive guideline by a district court. A better example of an agency's misinterpretation of its own regulation, to which courts need not defer, is provided by Hart v. McLucas, 535 F.2d 516 (9th Cir. 1976). Hart's flight instructor's license was suspended after he mistakenly certified hours of instruction in his students' logbooks. The relevant regulation, 14 C.F.R. § 61.59(a)(2) (1981), which prohibits the making of a "fraudulent or intentionally false entry," was construed by the FAA as attaching strict liability for false statements without regard to the scienter requirements implicit in the terms "fraud" or "intentional." On appeal, the court remanded for a ruling on the facts in light of the correct legal standard, saying that: 17 It is true, as the FAA asserts, that an administrative interpretation of a statute or regulation is to be accorded deference in judicial deliberations. However, when, as here, the administrative construction is clearly contrary to the plain and sensible meaning of the regulation, the courts need not defer to it. White v. Bloomberg, 345 F.Supp. 133, 147 (D.Md.1972); Francis v. Davidson, 340 F.Supp. 351, 368 (D.Md.), aff'd, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972). 18 Hart v. McLucas, 535 F.2d at 520. 19 The Court in Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980), stressed the rule that deference should be given an agency's interpretation of its own regulations, and cautioned that "judges are not accredited to supersede Congress or the appropriate agency by embellishing upon the regulatory scheme." Id. at 565-66, 100 S.Ct. at 796. An agency's construction of a statute or regulation should be accepted unless it is "demonstrably irrational." Id. at 565, 100 S.Ct. at 796. 20 The question whether FSLIC's interpretation is "clearly contrary to the plain and sensible meaning of the regulation" or "demonstrably irrational" must be considered in light of the "great deference" we must give an agency's construction of its own regulations, a deference even greater than that we give when an agency is construing a statute it is charged with administering. 21 When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' Unemployment Comm'n v. Aragon, 329 U.S. 143, 153 (67 S.Ct. 245, 250, 91 L.Ed. 136). ... When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order. 22 Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). 23 FSLIC's regulation is certainly not drafted with clarity or precision. If subparagraph (1) clearly prohibited the payment of interest to institutions no longer insured as of the end of the year, there would be no reason for subparagraph (3) at all. The only purpose of subparagraph (3) would seem to be to attempt to clarify the ambiguity created in subparagraph (1) as a result of the use of the term "insured institution" without an accompanying explanation of the date on which the institution must be insured. However, subparagraph (3) not only fails to clarify that question, it adds to the uncertainty and creates additional confusion. FSLIC interprets subparagraph (3) as only specifying certain conditions under which receipt of a return is prohibited. Literally, that is true. However, the inference that a return may be credited where these conditions do not exist might well be drawn by many reasonable and educated readers. 24 Nevertheless, we are not free to reject FSLIC's interpretation of the regulation and substitute Horizon's. FSLIC's construction of the term "insured institution" is both rational and plausible. In fact, its interpretation of the regulation, as a whole, is more consistent with normal business practices and governmental policies than is Horizon's. The "except as otherwise provided" clause of subparagraph (1) clearly refers to subparagraph (2). Horizon's theory that it was intended to refer to subparagraph (3) as well is, at best, highly dubious. The fact that FSLIC botched its effort to clarify the meaning of "insured institution" and in so doing included a misleading subparagraph (3) in the regulation does not require a different result than we reach here. 25 We note also that Horizon does not argue, nor could it here, that it based its decision with respect to its termination of its insurance coverage on its understanding of the regulation. This case therefore does not raise any notice issue. 26 In light of the broad discretion granted FSLIC in interpreting its own regulations, and FSLIC's longstanding practice of crediting returns only to institutions still insured on December 31, we hold that the agency's construction is not "clearly contrary to the plain and sensible meaning of the regulation," Hart v. McLucas, 535 F.2d at 520, or, put differently, "demonstrably irrational," Milhollin, 444 U.S. at 565, 100 S.Ct. at 796. 27 The problem here is not an uncommon one. We are confronted with a poorly drafted regulation. It would be in the best interests of FSLIC, the institutions it serves, and the public, for the agency to revise its regulation and eliminate the confusing and misleading language it now contains. 28 AFFIRMED. 1 12 U.S.C. § 1727(e) provides: (e) Credits to secondary reserve; availability for losses; assignment or transfer of share of reserve. The Corporation shall credit to the secondary reserve, as of the close of each calendar year a return on the outstanding balances of the secondary reserve, during such calendar year, as determined by the Corporation, at a rate equal to the average annual rate of return to the Corporation during the year ending at the close of November 30 of such calendar year, as determined by the Corporation, on the investments held by the Corporation in obligations of, or guaranteed as to principal and interest by, the United States. Except as provided in subsections (f) and (g), the secondary reserve shall be available to the Corporation only for losses of the Corporation and shall be so available only to such extent as other accounts of the Corporation which are available therefor are insufficient for such losses. No right, title, or interest of any institution in or with respect to its pro rata share of the secondary reserve shall be assignable or transferable whether by operation of law or otherwise, except to such extent as the Corporation may provide for transfer of such pro rata share in cases of merger or consolidation, transfer of bulk assets or assumption of liabilities, and similar transactions, as defined by the Corporation for purposes of this sentence. 2 As we have noted, subparagraph (2) provides for a partial crediting of annual returns to institutions which exhaust their share of the secondary reserve during a calendar year when their secondary reserve funds are applied to the payment of their annual insurance premium. Such institutions are paid their pro rata share of the return credited to the secondary reserve account for that portion of the year when their funds remained in the secondary reserve. In 12 U.S.C. § 1727(g) (1976), Congress provided for the eventual exhaustion of the secondary reserve through such payments of premiums. D0595A 0110A # 2

Case: 16-11538 Document: 00514233185 Page: 1 Date Filed: 11/10/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-11538 FILED Summary Calendar November 10, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff−Appellee, versus JEFFREY BLAKE ELLIS, Also Known as “Jealous”, Defendant−Appellant. Appeal from the United States District Court for the Northern District of Texas No. 4:16-CR-121-2 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: * Jeffrey Ellis was convicted of one charge of conspiring to possess * 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: 16-11538 Document: 00514233185 Page: 2 Date Filed: 11/10/2017 No. 16-11538 methamphetamine with intent to distribute and was sentenced to 240 months in prison and a three-year term of supervised release. He maintains that the district court erred by denying him the sentencing adjustment for acceptance of responsibility and imposing the adjustment for obstruction of justice. Ellis has shown no clear error in connection with the imposition of the U.S.S.G. § 3C1.1 adjustment for obstruction of justice. See United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). The presentence report, on which the district court was entitled to rely, set forth facts leading to a reason- able inference that Ellis had tried to intimidate a codefendant. See United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013); United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). In light of those facts, the conclusion that Ellis obstructed justice is plausible and is not clearly erroneous. See Juarez- Duarte, 513 F.3d at 208; U.S.S.G. § 3C1.1, comment.(n.4(A)). Ellis also has not shown that his is the exceptional case in which a defendant who receives the § 3C1.1 adjustment for obstruction of justice should also receive the U.S.S.G. § 3E1.1(a) reduction for acceptance of responsibility. See United States v. Chung, 261 F.3d 536, 540 (5th Cir. 2001). AFFIRMED. 2 

914 A.2d 136 (2007) 396 Md. 443 DAVID A. BRAMBLE, INC. v. Merrill F. THOMAS, et ux. No. 32, September Term, 2006. Court of Appeals of Maryland. January 8, 2007. *137 R. Stewart Barroll (Cookerly & Barroll, LLC, Chestertown, on brief), for petitioner. Stephen H. Kehoe (Ewing, Dietz, Fountain & Kehoe, P.A., Easton, on brief), for respondents. Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ. HARRELL, J. The sole issue in this case concerns the propriety of the Court of Special Appeals's affirmance of summary judgment in favor of third-party purchasers of certain real property and against the holder of a preemptive right of first refusal as to the property. David A. Bramble, Inc. ("Petitioner" or "Bramble"), the holder of the right of first refusal, attempted to exercise its preemptive right, but omitted in the purported exercise a non-price term contained in the third-parties' triggering offer. *138 The Circuit Court for Caroline County, in granting summary judgment to the third parties, declared that Bramble had not exercised effectively its right of first refusal. The Court of Special Appeals affirmed. For reasons we shall explain, we conclude that there was generated a genuine dispute as to a material fact whether the non-price term was added to the triggering offer in bad faith. Therefore, we shall reverse. I. FACTUAL BACKGROUND With the notable exception identified supra, the facts, material and otherwise, of this case were otherwise largely undisputed. John O. Lane and Rose T. Lane ("Lanes"), husband and wife, own a 25.99 acre parcel of unimproved real property located on Cherry Lane near Ridgely in Caroline County, Maryland (the "Property"). On 3 January 2004, Respondents here, Merrill F. Thomas and Nancy R. Thomas ("Thomases"), entered into an Unimproved Land Contract of Sale ("Thomas Offer") whereby the Lanes agreed to sell to the Thomases the Property for a purchase price of $105,000.00. Respondents tendered with the contract a $1,000.00 earnest money deposit. Closing was to occur on or before 16 February 2004. The Thomas Offer contained a hand-written Addendum which provided the following: 1. Nancy Thomas is a licensed Real Estate Agent in the State of Maryland. 2. This contract is contingent upon the release of David Bramble's first right of refusal within 30 days of ratification. 3. Buyers agree that they will not mine the above referenced property. The "right of first refusal" to which Paragraph 2 of the Addendum referred was originally granted by the Lanes to RWL Development Company ("RWL") on 20 February 1992,[1] and provided, in pertinent part: In the event John Owens Lane and Rose T. Lane, his wife, shall receive an offer to purchase their property located in the Second Election District of Caroline County, Maryland, described in a deed from RWL Development Company, a Maryland Corporation, to John Owens Lane and Rose T. Lane, his wife, dated November 20, 1991, recorded in Liber 247, Folio 375, a Land Record Book for Caroline County, Maryland, and decide to accept the same, they shall first offer the property to RWL Development Company, its successors and/or assigns, for the price and on the terms of the intended sale. RWL Development Company, its successors and/or assigns, shall have thirty (30) days from the date of such offer in which to accept or reject the same. Nothing hereinbefore contained shall in any way delay or limit the right of any mortgagee to foreclose under a valid mortgage or deed of trust, in accordance with the terms of such instrument, or to accept a deed in lieu of foreclosure from the grantors.[[2]] (emphasis added). On 7 May 1993, RWL Development Company conveyed by Deed[3] to Petitioner[4] its right of first refusal. *139 Counsel for the Lanes wrote a letter to Bramble on 6 January 2004 notifying it that the Lanes had accepted the Thomas Offer, contingent upon Bramble's release of its right of first refusal. Attached to the letter was a copy of the Thomas Offer, with the "no mining" clause. Bramble executed and delivered to the Lanes on 19 January 2004 an "Agreement of Sale," which purported to exercise its right of first refusal ("Bramble Offer").[5] Petitioner's offer matched all the terms of the Thomas Offer, except that it omitted the prohibition against mining included in Paragraph 3 of the Thomas Offer's Addendum. Respondents agreed on 4 February 2004 to amend certain terms in the Thomas Offer, increasing the purchase price to $120,000.00, with settlement to occur on 31 March 2004. The following day, counsel for Respondents faxed to the Lanes a revised offer ("Second Thomas Offer"), which reflected the amended price and settlement terms. By letter dated 6 February 2004, the Lanes' attorney informed Petitioner of the new offer and requested advice as to whether Bramble would be willing to meet the increased sale price of $120,000.00. On 17 February 2004, counsel for Petitioner responded that, because Bramble previously had exercised its preemptive right, a binding land sale contract had been formed. According to counsel, "the Thomases [were] not at liberty to make additional offers nor [were] the Lanes at liberty to accept them" in connection with the sale of the Property. The next day, counsel for the Lanes advised Bramble that it was the Lanes' view that the offer tendered by Petitioner was not an effective exercise of its right of first refusal. Specifically, counsel informed Bramble that if it wished to exercise its preemptive right, "[it] must do so by accepting all the terms of the offer, including the restriction that the property would not be mined." Because the Bramble Offer, as signed and delivered, did not mirror exactly the terms of the Thomas Offer ratified by Respondents, it was neither an effective exercise of the right of first refusal, nor a valid acceptance. According to the Lanes, the Bramble Offer was instead a counter-offer which the Lanes were free to accept or reject. Bramble agreed to revise his offer to include a prohibition against mining, and submitted a new offer ("Second Bramble Offer") which purported to be a valid exercise *140 of its preemptive right. Although the Second Bramble Offer included the "no mining" provision, it contained the original sales price of $105,000.00. In other words, the Second Bramble Offer mirrored the provisions of the initial triggering Thomas Offer. The Second Bramble Offer was tendered on 19 February 2004, forty-four days after Bramble was first notified of the Lanes' acceptance of the Thomas Offer. Citing the controversy concerning the validity of Bramble's exercise of its right of first refusal, and because of the fear of being sued by Bramble, the Lanes refused to convey the property to either suitor. Mr. Lane, on 7 March 2004, attempted instead to return the $1,000.00 earnest money tendered by the Thomases with the Thomas Offer. Respondents answered by filing suit against both the Lanes and Petitioner in the Circuit Court for Caroline County in order to determine and enforce their asserted rights with respect to the Property. Respondents sought in Count I a declaratory judgment that the right of first refusal was void because it violated the Rule against Perpetuities. Specifically, Respondents argued, under Ferrero Construction Co. v. Dennis Rourke Corp., 311 Md. 560, 575-76, 536 A.2d 1137, 1144-45 (1988), that because Bramble was a corporation with a theoretically perpetual existence, the right of first refusal might vest well beyond some life in being plus twenty one years. In Count II, Respondents sought specific performance of the Second Thomas Offer. The Thomases requested further, in Count III, damages in the amount of $25,000.00, for the anticipatory breach that occurred when the Lanes refused to convey the property. The Lanes moved for summary judgment. Respondents answered and filed their own motion for summary judgment. Neither the Lanes nor Petitioner filed a response to Respondents' motion for summary judgment. The parties appeared for oral argument on the motions, represented by counsel. The Circuit Court filed its written opinion on the motions on 23 February 2005. The trial judge declared first that the right of first refusal did not violate the rule against perpetuities: The right of first refusal granted to David A. Bramble does not violate the Rule Against Perpetuities. In the original conveyance of the right to RWL Corporation, the Right was stated to be applicable "[i]n the event John Owens and Rose T. Lane, his wife, shall receive an offer to purchase their property." The right thus would vest, if at all, within a life or lives in being, i.e., when the last of the two Lanes die. Cf. Park Station Ltd. Partnership LLLP v. Bosse, 378 Md. 122, 135, 835 A.2d 646 (2003).[6] *141 The trial court continued, however, that the purported exercise of the right of first refusal was ineffectual: Although it does not violate the Rule Against Perpetuities, Bramble's right of first refusal is void for the following reasons. Bramble had the option to accept the terms of any other offer to buy the property and thereby purchase it himself within thirty days of the offer of another. When Bramble learned of a contract between the Lanes and the Thomases, he submitted a proposed contract to the Lanes that had different terms than the contract between the Thomases and Lanes. Specifically, the contract between the Lanes and Thomases stated that the "[b]uyers agree that they will not mine the above referenced property." Bramble's first proposed contract to the Lanes lacked this provision. An acceptance with terms that vary from those in an offer constitutes a rejection and counter-offer. Post v. Gillespie, 219 Md. 378, 149 A.2d 391 (1959). The court, thus, granted summary judgment on Respondents' Count I claim. It denied summary judgment as to Counts II and III of the complaints, however, because there were "disputes as to material facts." The Circuit Court denied the Lanes' motion for summary judgment. On 24 March 2005, the Lanes and Respondents reached a settlement agreement as to all unresolved claims in the action. Respondents filed on 25 April 2005 a motion for voluntary dismissal as to Counts II and III, pursuant to Maryland Rule 2-506(b), which the Circuit Court granted with prejudice two days later. Bramble noted a timely appeal to the Court of Special Appeals. Bramble argued exclusively on appeal that the Circuit Court erred in declaring that the corporation had not exercised effectively its right of first refusal when it failed to include the "no mining" clause in the Bramble Offer. The Court of Special Appeals, in an unreported opinion, affirmed the judgment of the Circuit Court. The intermediate appellate court reasoned that, because the "no mining" provision was a material term in the triggering offer, Petitioner's "matching" offer, which omitted the use restriction, was an ineffective exercise of the corporation's right of first refusal. Even in the absence of language indicating that the Bramble Offer was a conditional exercise of Petitioner's right of refusal, according to the court, the absence of the "no mining" clause rendered Bramble's alleged exercise insufficient because Bramble, in effect, was attempting to purchase, at the same price, more rights in the property than contained in the triggering *142 offer. On Bramble's petition, we issued a writ of certiorari. 393 Md. 244, 900 A.2d 751 (2006).[7] II. STANDARD OF REVIEW Summary judgment is proper when "the motion [for summary judgment] and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Md. Rule 2-501(f). Because a trial court decides only questions of law when considering a motion for summary judgment under Rule 2-501(f), this Court reviews a grant of summary judgment de novo in order to determine whether the trial court was legally correct. Walk v. Hartford Cas., 382 Md. 1, 14, 852 A.2d 98, 105 (2004); Todd v. Mass Transit Admin., 373 Md. 149, 154, 816 A.2d 930, 933 (2003); Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533, 836 A.2d 655, 669 (2003); Southland Corp. v. Griffith, 332 Md. 704, 712, 633 A.2d 84, 87-88 (1993). In doing so, we review independently the factual record in a light most favorable to the non-moving party and construe in favor of the non-moving party any reasonable inferences which may be drawn from the pleadings, admissions, and affidavits. Jurgensen v. New Phoenix Atl. Condo. Council of Unit Owners, 380 Md. 106, 114, 843 A.2d 865, 869 (2004). III. DISCUSSION Respondents maintain[8] that [t]he trial court properly determined that the failure of Bramble to submit a timely offer that included a prohibition against mining constituted a counter offer. A reply to an offer that differs from the suggested method of performance is a conditional acceptance or counter offer. Baltimore County v. Archway Motors, 35 Md.App. 158, 163, 370 A.2d 113 (1977). Bramble's deviation from the terms of the Thomas Offer was not an unqualified acceptance of this offer "for the price and on the terms of the intended sale." As such, it did not comply and the trial court was correct in determining that it had not properly exercised its right of first refusal in a timely manner. Respondents argue further that, because the prohibition against mining was a material term of the Thomas Offer, its exclusion from the Bramble Offer improperly would have entitled Bramble to more rights in the subject property than granted by the triggering offer.[9] Petitioner counters that even if Maryland law requires exact matching of the terms of the triggering offer when exercising a right of first refusal, neither the property owner nor the proposed third-party purchaser may act in bad faith to discourage or frustrate the *143 exercise of the preemptive right, or include terms which they know the preemptive rightholder will not accept. A. Options to Purchase and Rights of First Refusal Generally. In order to consider properly whether Petitioner's omission of the no-mining clause rendered ineffective the exercise of its preemptive right, it is necessary first to refresh our recollection of the conceptual underpinnings of option contracts and rights of first refusal. An option is a "continuing offer to sell during the duration [of the option agreement] which on being exercised by the optionee becomes a binding and enforceable contract." Straley v. Osborne, 262 Md. 514, 521, 278 A.2d 64, 68 (1971) (quoting Diggs v. Siomporas, 248 Md. 677, 681, 237 A.2d 725, 727 (1968)). It is well settled-law in Maryland that to be an effective exercise of an option, the exercise of that option "must be unequivocal and in accordance with the terms of the option." Katz v. Pratt St. Realty Co., 257 Md. 103, 118, 262 A.2d 540, 547 (1970) (citing Simpers v. Clark, 239 Md. 395, 401, 211 A.2d 753 (1965)); Foard v. Snider, 205 Md. 435, 446, 109 A.2d 101, 105-06 (1954) ("Whatever the option requires must be done. As in the case of all offers, revocable or irrevocable, the exercise must be unconditional and in exact accord with the terms of the option.") (emphasis added); 1 WILLISTON ON CONTRACTS § 5:18 (4th ed. 1990) ("When the optionee decides to exercise [its] option, [it] must act unconditionally and according to the terms of the option."); see also Post v. Gillespie, 219 Md. 378, 385-86, 149 A.2d 391, 395-96 (1959). Indeed, Maryland applies generally this objective rule of offer and acceptance to the formation of any contract underlying the alienation of real property. See Peoples Drug Stores v. Fenton Realty Corp., 191 Md. 489, 494, 62 A.2d 273, 276 (1948) ("To constitute a valid contract, the offer of one party must be certain and definite, and the acceptance of the other party must correspond with the offer in its entirety. A contract, to be final, must extend to all the terms which the parties intend to introduce, and material terms cannot be left for future settlement."). A right of first refusal, or "preemptive right," is a type of option, Ferrero Construction Co., 311 Md. at 567, 536 A.2d at 1140. The purposes for which rights of first refusal are utilized are "closely related to the purposes of [traditional] option contracts." 3 CORBIN ON CONTRACTS § 11.3 (rev. ed.1996). The two types of agreements are dissimilar, however, in terms of the legal relationships of the parties who enter them. Id. A right of first refusal is an agreement between the property owner ("grantor") and a holder ("preemptioner") whereby the receipt of an offer from a third-party purchaser to buy the subject property "triggers" the right of first refusal which, in turn, "ripens" into an option to buy on part of the preemptioner. Id.; see also Straley, 262 Md. at 521-22, 278 A.2d at 68-69 (referring to a preemptive right as a "conditional option, or first privilege of purchase"); Westpark, Inc. v. Seaton Land Co., 225 Md. 433, 449-50, 171 A.2d 736 (1961); Iglehart v. Jenifer, 35 Md.App. 450, 451 n. 1, 371 A.2d 453 (1977) (differentiating between the legal effect of a traditional option and an option of first refusal). In sum, [preemptive] rights of the [holder] are contingent upon the desire of the owner to sell. [Unlike a true option] the [holder of a right of first refusal] has no unqualified power to compel a sale to him or to a third person. . . . These provisions are, consequently, analogous to options upon a condition precedent, and subject to many of the same rules [as an option agreement]. *144 RESTATEMENT OF PROPERTY § 413, cmt. b (1944) (emphasis added) (internal cross-references omitted); see Straley, 262 Md. at 521-22, 278 A.2d 64 at 68-69. Thus, despite the differences in the legal effects of the two types of agreements, the rules relating to options are applicable, for the most part, to rights of first refusal. B. Materiality of an Omitted Provision. Respondents ask this Court to apply the objective theory of contracts followed generally in Maryland, i.e., that in order to exercise effectively the right of first refusal, Bramble's exercise must have been unequivocal and in accordance with the exact terms of the triggering offer. Katz, 257 Md. at 118, 262 A.2d at 547; Foard, 205 Md. at 446, 109 A.2d at 105-06. There is some social and legal utility in applying, to the purported exercise of a pre-emptive right, the requirement that the rightholder duplicate exactly the terms of the triggering offer because it tends to avoid a situation where the preemptioner otherwise may impede the alienability of real property. As the U.S. Court of Appeals for the Seventh Circuit stated, the holder of a preemptive right should not be enabled to justify its failure to match a term in the third-party's triggering offer on the ground that the omitted non-price term is immaterial: [w]ithout [an exact matching requirement], the right [of first refusal] is an impediment to the marketability of property, because it gives the holder of the right a practical power to impede a sale to a third party by refusing to match the third party's offer exactly and then arguing that the discrepancy was immaterial. Miller v. LeSea Broadcasting, 87 F.3d 224, 226 (7th Cir.1996). Other courts likewise have extended to the exercise of a preemptive right the mirror image rule employed in determining whether an option was exercised effectively. West Texas Transmission, L.P., v. Enron Corp., 907 F.2d 1554, 1565 (5th Cir.1990) ("Whether or not a particular contract term is material is not the standard by which we judge whether an acceptance which rejects that term is a valid exercise of the right of first refusal. Like the acceptance of any other offer, the exercise of an option, must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation and according to the terms or conditions of the option.") (citations omitted);[10]Weber Meadow-View Corp. v. Wilde, 575 P.2d 1053, 1055 (Utah 1978) (implying that when terms are added in good faith to a triggering offer, and not with the ulterior purpose of defeating a right of first refusal in the property, the terms of the triggering offer must be matched exactly).[11] *145 Many jurisdictions, on the other hand, do not require a preemptioner to match immaterial terms found in a triggering offer. See, e.g., Prince v. Elm Inv. Co., 649 P.2d 820, 825 (Utah 1982) (quoting Brownies Creek Collieries, Inc. v. Asher Coal Mining Co., 417 S.W.2d 249, 252 (Ky.1967) ("[I]f the holder of the right of first refusal cannot meet exactly the terms of the conditions of the third person's offer, minor variations which obviously constitute no substantial departure should be allowed. And defeat of the right of refusal should not be allowed by use of special, peculiar terms or conditions not made in good faith. . . .") (emphasis added)); Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 858 (Fla.Dist.Ct.App.1970) ("One offer to purchase matches another only if the essential terms of the offers are identical.") (emphasis added) (internal citations omitted); Northwest Television Club, Inc. v. Gross Seattle, Inc., 96 Wash.2d 973, 634 P.2d 837, 840 (1981) ("[A]n acceptance of an offer must always be identical with the terms of the offer, or there is no meeting of the minds and no contract. A purported acceptance that changed the terms of an offer in any material respect may operate as a counteroffer. . . .") (emphasis added); Matson v. Emory, 36 Wash.App. 681, 676 P.2d 1029, 1031, 1033 (1984) (holding that the exercise of a preemptive right constitutes a counter-offer, not an acceptance, when the offer differs materially from the triggering offer) (emphasis added); John D. Stump & Assoc., Inc. v. Cunningham Mem'l Park, Inc., 187 W.Va. 438, 419 S.E.2d 699, 705 (1992) ("[W]here the acceptance of a pre-emptive rightholder varies materially from the terms of the third party's offer, it is viewed as a rejection of the seller's offer and terminates the option right.") (emphasis added). Existing Maryland law is not particularly instructive regarding the protocols for the proper exercise of a right of refusal, especially in light of the rather unique factual circumstances of this case.[12] The *146 Court of Special Appeals, however, quoting Coastal Bay Golf Club, Inc. and Matson, in its unreported opinion in the present case held that "[i]f the preemptioner wishes to exercise his rights, his offer must not vary materially from the offer received by the landowner." (emphasis in original). Reported Maryland cases, at least in passing, have commented upon the contents of the purported exercise of a right of first refusal. In Ferrero Construction Co., for example, while outlining the factual background of the case, the Court stated that the preemptioner "submitted a contract that in its essential terms conformed to the third party's offer." 311 Md. at 563, 536 A.2d at 1138 (emphasis added). The primary dispute in Ferrero Construction Co., however, involved not the contents of the preemptioner's exercise of its right of first refusal, but rather whether the preemptive right violated the Rule Against Perpetuities. Thus, while Maryland requires generally the literal matching of terms in cases involving the formation of binding contracts, the cases focusing specifically on rights of first refusal are ambiguous at best in this regard. C. Good Faith Requirement. We need not decide, in the posture of the present case, whether a holder of a right of first refusal must match literally all the terms in the triggering offer in order to exercise its right because there is generated on this record a genuine dispute of material fact as to whether the Lanes and the Thomases (or one of them) inserted, in bad faith, the "no mining" clause as a "poison pill" in order to discourage or frustrate Bramble from exercising its right of first refusal. In considering whether Petitioner exercised effectively its right of first refusal, there are several countervailing interests to be considered. On one hand, there is a significant interest in promoting the free alienability and marketability of land. A person or entity generally should have primary control over the disposition of property he, she, or it owns. West Texas Transmission, L.P., 907 F.2d at 1563 (holding that when a property owner receives an offer to purchase a piece of property encumbered by a preemptive right, "the owner of [the] property subject to a right of first refusal remains master of the conditions under which he will relinquish his interest. . . ."); Coastal Bay Golf Club, Inc., 231 So.2d at 858 ("One who owns property has a right to dispose of that property in any lawful way he chooses."); Matson, 676 P.2d at 1033 (holding that in the context of a preemptive right, "the property owner should retain primary control over disposition of the property"); see also Selig v. State Highway Admin., 383 Md. 655, 861 A.2d 710 (2004) (applying the Rule Against Perpetuities to a right of refusal, because such a right poses a restraint on the free alienation of property when improperly executed) (quoting Ferrero Constr. Co., 311 Md. at 573-74, 536 A.2d at 1142-43). On the other hand, we must consider the fact that Petitioner acquired, at the time RWL conveyed its preemptive right in the Property, an equitable property interest in the Property. Ayres v. Townsend, 324 Md. 666, 674-75, 598 A.2d 470, 474 (1991) ("[A preemptive right] is an interest in property, and not merely a contractual right, whereby the preemptioner acquires an equitable right in the property, which vests only when the property owner decides to sell."); Westpark, Inc., *147 225 Md. at 449-50, 171 A.2d at 743. When the Lanes granted initially the right of first refusal to RWL, the preemptive right was the product of a bargained-for exchange voluntarily entered by the Lanes. As such, one who enters into a contract must cooperate in good faith to carry out the intention the parties had in mind when it was made; and that he should not be permitted to engage in any subterfuge or devious means to prevent the other party from performing, and then use that as an excuse for failing to keep his own commitment. Weber Meadow-View Corp., 575 P.2d at 1055. With that in mind, even jurisdictions which require a preemptioner to match exactly the terms of a triggering offer (i.e., a lack of materiality of the omitted terms is no defense) recognize the following three exceptions to that rule: (1) the property owner may waive exact matching, either through actions or express waiver; (2) proper names need not be matched because to hold otherwise would require the preemptioner to change its name in order to exercise the first option of purchase; and (3) the property owner, for the purpose of discouraging the holder of the preemptive right from exercising its right of first refusal, may not insert into the triggering offer terms which its knows will be repugnant to the holder.[13]Miller, 87 F.3d at 227-28. In other words, the property owner, and possibly the third-party purchaser, must not be allowed to add in bad faith terms to the triggering offer which are intended to nullify the right of first refusal. West Texas Transmission, L.P., 907 F.2d at 1563 (holding that "the owner of property subject to a right of first refusal remains master of the conditions under which he will relinquish his interest, as long as those conditions are commercially reasonable, imposed in good faith, and not specifically designed to defeat the preemptive rights.") (citations omitted); Weber Meadow-View Corp., 575 P.2d at 1055 (Utah 1978) ("[T]he decision as to . . . the terms of upon which the optioner would sell her property remains her exclusive prerogative so long as she acts in good faith and without any ulterior purpose to defeat the right of the optionee.").[14] Even the cases upon which Respondents rely impose a duty of good faith in forming a triggering offer. Respondents rely specifically on Oregon RSA No. 6, Inc. v. Castle Rock Cellular of Oregon L.P., 76 F.3d 1003, 1007 (9th Cir.1996) for the proposition that "[u]nder Oregon law, an *148 acceptance of an offer must be `positive, unconditional, unequivocal, and unambiguous'." The U.S. Court of Appeals for the Ninth Circuit indeed interpreted Oregon law to require a definite response in order effectively to form a contract. The Ninth Circuit, however, concluded ultimately that "there is an implied covenant of good faith and fair dealing" in every contract formed under Oregon law, and that the grantor of the preemptive right had violated this covenant through its actions. Specifically, the court held that "[t]o permit the transfer of a shell company as a way around the first refusal provisions was `an artifice intended to thwart plaintiff's legitimate contractual expectation.'" Thus, even in states which require positive, unconditional, and unequivocal acceptance, there is an implied covenant that a party will act in good faith not to defeat improperly a bargained-for preemptive right. Finally, and most importantly, our case law supports the imposition of an implied duty on the part of the property owner and third-party purchaser to act in good faith. In Straley v. Osborne, we addressed whether a lessee, who held a first option to purchase leased land, was able to set aside the sale of the premises to a third-party after the lessee failed to make any attempt to exercise its right. The property owner sold to Straley a junkyard business, and on the same day, leased to Straley the premises upon which the business was located. Straley, 262 Md. at 515, 278 A.2d at 65. The junkyard was located on approximately seven acres of a ten-acre tract owned by the property owner.[15] Included in the lease agreement was a "first option of purchase" whereby Straley would have the first option of buying the property should the property owner decide to sell. Straley, 262 Md. at 516, 278 A.2d at 66. After some time, the property owner's used car business began to fail, and he listed for sale the entire ten-acre tract in order to raise money. Osborne, a third-party purchaser, made an offer to buy the entire ten-acre piece of land. The owner's real estate agent contacted Straley soon thereafter, informing the preemptioner that he now had the opportunity to exercise his right of first refusal. Straley, 262 Md. at 517-18, 278 A.2d at 66-67. Straley failed to exercise timely his preemptive right,[16] but subsequently brought suit in order to set aside the sale of the property to Osborne. Even though we ultimately concluded that Straley had failed to exercise effectively his right of first refusal, we reasoned that "the [property owner-lessor] cannot act in derogation of the [holder-lessee's] `first option' rights in the leased premises." Straley, 262 Md. at 524, 278 A.2d at 70. Specifically, the Court considered carefully the circumstances of the case in order to ensure that the lessor would not be able to "render the lessee's bargained for `first option' a nullity by merely including it in a larger tract being offered for sale." Despite the preemptive rightholder's equitable interest in the property, his inaction after being notified of the sale rendered ineffective his after-the-fact attempt to exercise the first option of purchase. We believe that imposing upon the property owner and third-party purchaser an implied duty of good faith and fair dealing strikes the proper balance. A *149 good faith requirement preserves a property owner's right to dispose of property as he, she, or it deems appropriate, thus maintaining marketability of the property. This approach protects, at the same time, the equitable property interest that the preemptioner holds in the encumbered property. Imposing this duty of good faith on the parties comports additionally with the laws of offer and acceptance followed generally in Maryland. Port East Transfer, Inc. v. Liberty Mut. Ins. Co., 330 Md. 376, 385, 624 A.2d 520, 524 (1993) ("Even when the parties are silent on the issue, the law will impose an implied promise of good faith."); Am. Trading & Prod. Corp. v. United States, 172 F.Supp. 165, 167 (D.Md.1959) ("[T]here is an implied provision of every contract . . . that neither party to the contract will do anything to prevent performance thereof by the other party. . . .") (applying Maryland law) (quoting George A. Fuller Co. v. United States, 108 Ct.Cl. 70, 69 F.Supp. 409, 411 (1947)). We conclude, therefore, that the "`terms upon which the [property owner] would sell her property remains her prerogative so long as she acts in good faith.'" Matson, 676 P.2d at 1032 (quoting Weber Meadow-View Corp., 575 P.2d at 1055 ("[T]he decision as to . . . the terms upon which the [owner] would sell her property remains her exclusive prerogative so long as she acts in good faith and without any ulterior purpose to defeat the right of the [preemptioner].")). C. Application Good faith ordinarily is a question of fact for summary judgment purposes. Rite Aid Corp. v. Hagley, 374 Md. 665, 684, 824 A.2d 107, 119 (2003). As such, "questions involving determinations of good faith which involve intent and motive `ordinarily' are not resolvable on a motion for summary judgment." Rite Aid Corp., 374 Md. at 684, 824 A.2d at 119; Gross v. Sussex, Inc., 332 Md. 247, 256, 630 A.2d 1156, 1160 (1993) ("[S]ummary judgment is inappropriate when intent and motive are critical to the proof of a case.") (citing Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458, 464 (1962)); Goldstein v. Miles, 159 Md.App. 403, 446-47, 859 A.2d 313, 338 (2004). Even cases involving good faith, motive, or intent may be resolved on summary judgment, however, if there are no material disputes as to the facts of the case. Rite Aid Corp., 374 Md. at 685, 824 A.2d at 119 (quoting Gross, 332 Md. at 257, 630 A.2d at 1161). Based on the record here, we conclude that summary judgment was an improper means of determining the rights of the parties. While the "no mining" clause could have been inserted in the Thomas Offer for some legitimate reason, there is evidence in the record, if believed, that the Lanes and/or the Thomases inserted the prohibition on mining as a "poison pill" in order to discourage Bramble from exercising its right of first refusal. It was well-documented at all court levels that Bramble was mining, for sand and gravel, land adjacent to the Property since at least 7 May 1993. Thus, at the time the triggering offer was made, it could have been apparent to both the Lanes and the Thomases[17] that Petitioner intended to use the Property for the purposes of mining. A "no mining" clause would defeat that purpose of Petitioner's desire to own the Property, thereby frustrating Petitioner's bargained-for equitable interest in the Property. Respondents argue, and the intermediate *150 appellate court agreed, that the inclusion of the use restriction in a hand-written addendum, for the purposes of analyzing the materiality of the omitted term, indicates the importance of the provision to the sellers. The manner in which the provision was added, i.e., by a hand-written addendum attached to the contract of sale, may support an inference that the "no mining" clause was an after-the-fact method of frustrating Bramble's preemptive right by including a term or condition which the parties knew Petitioner would not accept.[18] We agree with Respondents that the Lanes were free to structure the sale of their property in any way they saw fit; however, the Lanes and the Thomases were obliged to comport with notions of good faith and fair dealing with regard to Bramble's preemptive right in setting the terms of the sale. If an aggrieved holder of a right of first refusal satisfies a court that the property owner's and/or third-party's actions are arbitrary or performed in bad faith, the owner of the property encumbered by the preemptive right must articulate a "reasonable justification" for its actions. Prince, 649 P.2d at 825. Whether a specific term or condition is commercially reasonable, i.e., inserted in good faith, is a case-by-case determination, and must be resolved by examining the circumstances peculiar to the case. Id. Thus, if Bramble is able to establish that the Lanes and/or the Thomases inserted, in bad faith, into the triggering offer the "no mining" provision in order to defeat the purpose of Bramble's desire to own the Property, the burden will shift. It will then be incumbent upon the Lanes and/or the Thomases to articulate a reasonable justification for imposing such a use restriction upon the Property. If they are unable to produce an adequate justification for the "no mining" clause, Bramble should be permitted to exercise its preemptive right without satisfying literally the added term of the triggering offer. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS. NOTES [1] The Right of First Refusal was recorded among the Land Records of Caroline County in Liber No. 249, Folio 397. [2] According to a letter in this record, written by counsel for the Lanes and dated 6 January 2004, Petitioner owns RWL Development Company. [3] This Deed was recorded on 11 May 1993 among the Land Records of Caroline County, Maryland, at Liber 252, Folio 712. [4] David A. Bramble, Inc., is a corporation organized under the laws of the State of Maryland with its principal place of business in Caroline County. Petitioner mines sand and gravel from a site located adjacent to the Property. RWL conveyed to Bramble the right of first refusal as part of a larger land sale, whereby Bramble received, in exchange for $445,000.00 and other valuable consideration, three parcels of land located on or around Cherry Lane in Ridgely, Maryland. One parcel is adjacent to the Property, and the other two are located across Cherry Lane from the Property. According to the land sale contract, dated 8 March 1993, there is a sand pit located on one of the tracts. This is the land from which Petitioner mines sand and gravel. It is unclear from the record whether Petitioner extracted natural resources from the pit before 7 May 1993. In any event, Bramble had been mining the pit since that date. [5] A clause inserted by Bramble into the Agreement read: WHEREAS, an offer, to purchase the land described in the aforesaid right of first refusal has been accepted by John Owens Lane and Rose T. Lane, on [3 January 2004]. It is the intent of this Agreement being submitted by David A. Bramble, Inc., to exercise the right of first refusal, to purchase the property for the price set forth in the order heretofore accepted by John Owens Lane and Rose. T Lane, his wife. [6] As stated earlier, Respondents initially argued that the right of first refusal was void under Ferrero Construction Co. v. Dennis Rourke Corp., 311 Md. 560, 536 A.2d 1137 (1988). In Ferrero Constr. Co., this Court held that the "preemptioner" (the holder of a right of first refusal) holds an equitable interest in the subject property which vests only when the property owner decides to sell. We concluded that a right of first refusal conveyed between two corporations violated the rule against perpetuities. Because both corporations had theoretically an infinite existence, we reasoned that the holder's "right of first refusal was not limited to a term of years but was of unlimited duration." Thus, the right could vest beyond "a life in being plus twenty-one years," as contemplated by the Rule Against Perpetuities. Ferrero Constr. Co., 311 Md. at 575-76 n. 7, 536 A.2d at 1144 n. 7 (holding that corporations may not be used as measuring lives for the purposes of the Rule Against Perpetuities). In Park Station Ltd. Partnership, LLLP v. Bosse, 378 Md. 122, 835 A.2d 646 (2003), however, this Court was called upon to decide whether a right of first refusal violated the Rule when conveyed by an individual property owner to a limited partnership (with potentially unlimited duration). We held that because the right of first refusal, as drafted, did not continue in the property owner's successors or assigns, this right could not vest beyond the deaths of the property owners. Park Station, 378 Md. at 135-36, 835 A.2d at 654. The property owner, in other words, would receive, if at all, an offer to purchase the encumbered property on or before their death, thereby vesting in the preemptioner the opportunity to exercise its right of first refusal within the statutory period. In the present case, the Circuit Court determined that the right of first refusal granted by the Lanes, as drafted, pertained only to offers received by the Lanes themselves, and did not contemplate offers received by the Lanes' heir or assigns. Thus, the right of first refusal would vest on or before the death of the Lanes, a life in being at the time of the right's creation. Respondents do not challenge here, by cross-appeal, the Circuit Court's conclusion that the preemptive right does not violate the Rule Against Perpetuities. Thus, we do not consider this issue. [7] The question presented in Bramble's petition was: When the holder of a right of first refusal on real property attempted to exercise its right to purchase but omitted a non-price term contained in the triggering offer, should the Court of Special Appeals have affirmed a summary judgment, that as a matter of law the attempted exercise failed when there was no evidence that the omitted term was material to the sellers? [8] Respondents made the same argument in the Court of Special Appeals. [9] The basis for this argument is that the Property would be more profitable, and thus more valuable, if mining of the land were permitted. Because the triggering offer contained a use restriction prohibiting mining on the Property, and Petitioner attempted to eliminate the use restriction while maintaining the same purchase price found in the triggering offer, it was receiving, in effect, at the same price significantly more valuable property rights. [10] The U.S. Court of Appeals for the Fifth Circuit held further in West Texas Transmission, L.P., v. Enron Corp., that "a purported acceptance which leaves the property owner `as well off' as a third party offer, but which modifies, adds to or otherwise qualifies the terms of the offer, generally constitutes a rejection of the option and a counter-offer." 907 F.2d 1554, 1565 (5th Cir.1990). [11] In Weber Meadow-View Corp. v. Wilde, 575 P.2d 1053, 1055 (Utah 1978), Weber Meadow-View Corporation held a right of first refusal in real property located in Summit County, Utah. The property owner, Florence Wilde, received an offer to purchase the property for $200,000, which consisted of the conveyance of a particular home stated to be worth $48,000, and the balance paid in cash. Weber Meadow-View Corp., 575 P.2d at 1054. When Weber Meadow-View attempted to exercise its preemptive right, the corporation offered $200,000, which would include any piece of real property selected by the seller, with a value of up to $50,000. Id. In concluding that the corporation had not exercised effectively its right of first refusal, the Supreme Court of Utah determined that "the terms upon which the [property owner] would sell her property remains her exclusive prerogative so long as she acts in good faith . . .," even though the inclusion of unique consideration made it impossible for the corporation to match exactly the terms of the triggering offer. Weber Meadow-View Corp., 575 P.2d at 1055. [12] Maryland courts have had few opportunities to address whether a preemptioner has exercised effectively its right of first refusal when it omits or alters terms of the triggering offer. In Yorkridge Service Corp. v. Boring, the defendant-grantors had granted to the plaintiff-preemptioners a right of first refusal in the subject property, which option required the exercise to be "upon the same terms and conditions contained in such [triggering offer]." 38 Md.App. 624, 625, 382 A.2d 343, 343 (1978). The property owners received an offer to purchase the property for the sum of $224,000 and, shortly thereafter, gave notice to the preemptioners of the triggering offer. When the corporate option holder attempted to exercise its right of first refusal, it reduced the purchase price by the amount of the brokerage commission to be paid by the property owner. Yorkridge Service Corp., 38 Md.App. at 625-26, 382 A.2d at 344. The rationale behind this reduction was that, by exercising its right of refusal, the sale was beyond the scope of the brokerage agreement such that the property owner would not be obligated to pay the brokerage commission. Yorkridge Service Corp., 38 Md.App. at 626, 382 A.2d at 344. The Court of Special Appeals, relying on Katz v. Pratt St. Realty Co., 257 Md. 103, 262 A.2d 540 (1970), held that the preemptioner had not exercised validly its right of first refusal because the exercise did not contain the same terms as the triggering offer. The intermediate appellate court did not determine, however, whether an exercise of the rightholder's option must match exactly, or rather match only the material terms of the triggering offer. Because the purchase price is an essential term of any land sale contract, see, e.g., Vary v. Parkwood Homes, 199 Md. 411, 417, 86 A.2d 727, 730 (1952), any modification of the price term necessarily would be a material alteration of the triggering offer. Thus, the result likely would have been the same under either the mirror image rule or materiality scrutiny. The present case does not present such a clear-cut situation. [13] The cases upon which we rely impose expressly this duty of good faith upon the property owner. We could find no cases which require explicitly a third-party purchaser to exercise good faith in negotiating a triggering contract for the sale of the property. In some cases, there have been arguments made that the third-party, for its own conduct in this regard, should be liable for intentional interference with the preemptioner's right of first refusal. See, e.g., Prince v. Elm Inv. Co., 649 P.2d 820, 821 (Utah 1982). [14] Jurisdictions which consider the materiality of omitted or altered terms analyze also the motive behind insertion of specific contract provisions into the triggering offer. See Brownies Creek Collieries, Inc. v. Asher, 417 S.W.2d 249, 252 (1967) ("[D]efeat of the right of first refusal should not be allowed by use of special, peculiar terms or conditions not made in good faith."); Matson, 676 P.2d at 1031 ("The right [of first refusal] is a valuable contract right which should not be rendered illusory by imposing requirements that are impossible to meet."); Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854, 857 (Fla.Dist. Ct.App.1970) ("A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those continued in good faith offer by a third person. . . .") (emphasis added). [15] The property owner maintained other business interests, including a used-car dealership, Cadillac Jack Enterprises, Inc., which was located on the other three acres of the ten-acre lot. Straley v. Osborne, 262 Md. 514, 516, 278 A.2d 64, 66 (1971). [16] Straley was allegedly informed of the proposed sale several times. Each time, he refused to exercise the option, claiming that the purchase price was too high. See generally Straley, 262 Md. at 517-21, 278 A.2d at 66-68. [17] As indicated on the Addendum, Mrs. Thomas was a licensed real estate agent in the area. Thus, an inference could be drawn reasonably that she was aware of the uses to which neighboring landowners put parcels of land adjacent to the Property. [18] At oral argument, disparate views were advanced as to who added the "no mining" provision to the Thomas Offer. Counsel for Petitioner claimed that the prohibition was added by the Thomases. Counsel's premise was that the Respondents, by virtue of Mrs. Thomas being a real estate agent in the area, knew of neighboring uses, and that the Thomases insisted on the clause to frustrate Bramble's right of first refusal. Counsel for the Lanes, on the other hand, argued that because the provision was added in the addendum, the mining restriction was material to the sellers. In other words, counsel's argument could be understood to mean that the Lanes insisted on the "no mining" provision.

950 F.Supp. 408 (1996) HOULTON BAND OF MALISEET INDIANS, et al., Plaintiffs, v. TOWN OF HOULTON, Defendant. Civ. No. 96-197-B. United States District Court, D. Maine. November 19, 1996. *409 Jon Haddow, Farrell, Rosenblatt & Russell, Bangor, ME, for Plaintiffs. Daniel R. Nelson, Severson, Hand & Nelson, Houlton, ME, for Defendant. ORDER AND MEMORANDUM OF DECISION BRODY, District Judge Plaintiffs, the Houlton Band of Maliseet Indians (the Band) and the Houlton Band of *410 Maliseet Indians Tribal Housing Authority (the Housing Authority), request injunctive and declaratory relief from Defendant's, Town of Houlton (the Town), tax assessments and tax liens on properties allegedly owned by the United States in trust for the Band, and on land leased to the Housing Authority, including the improvements thereon. The Court granted Plaintiffs' request for a temporary restraining order on August 21, 1996. On September 9, 1996, Plaintiffs filed a Motion for a Preliminary Injunction. For the reasons set forth below, the Court holds that the properties in dispute here are in fact properties owned by the United States in trust for the Band and, as such, are exempt from taxation by the Town pursuant to 25 U.S.C. § 465. The Court further holds that the land leased to the Housing Authority, including the improvements thereon, is exempt from taxation pursuant to 25 U.S.C. § 465, 30-A M.R.S.A. § 4742(5), and 30-A M.R.S.A. § 4995. The Court therefore grants Plaintiffs' request for a preliminary injunction and declares that any and all tax assessments and tax liens issued by the Town on properties owned by the United States in trust for the Band are null and void. The Court further declares that any and all tax assessments and tax liens by the Town on land leased to the Housing Authority, including the improvements thereon, are null and void. I. DECLARATORY JUDGMENT A federal court receives its authority to issue declaratory judgments from 28 U.S.C. § 2201. This statute states in pertinent part: In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and 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. In order for a federal court to issue declaratory relief there must first exist "an actual case or controversy within the meaning of Article III." Interstate Food Processing Corp. v. State of Maine, 826 F.Supp. 24, 25 (D.Me.1993). Before a federal court may enter a declaratory judgment, therefore, it must first answer two questions: "(1) Is the issue `fit for review'? and (2) What is the `extent of hardship' for the plaintiff?" Pew v. Scopino, et al., 904 F.Supp. 18, 31 (D.Me.1995) (quoting Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530, 535-36 (1st Cir.1995)). The first question concerns "whether the claim involves uncertain and contingent events that may not occur as anticipated, or indeed may not occur at all." Massachusetts Ass'n of Afro-American Police, Inc. v. Boston Police Dep't., 973 F.2d 18, 20 (1st Cir. 1992). Plaintiffs' claim here involves certain and definite events that would have an immediate effect absent the Court's declaration of Plaintiffs' rights. The Town already has assessed taxes and issued tax liens upon Plaintiffs' properties and is ready to foreclose. This issue is fit for review. The second question, regarding the extent of hardship for the plaintiff, already has been answered by the Court in its Order of August 21, 1996, granting Plaintiffs' request for a Temporary Restraining Order. The Court acknowledged that Plaintiffs would suffer irreparable harm if the Temporary Restraining Order were not granted. (Order at 2). For the same reasons the Court holds that Plaintiffs likewise would suffer irreparable harm if the Court did not issue a declaratory judgment in Plaintiffs' favor. This case presents an actual case or controversy, supporting the issuance of a declaratory judgment. II. INDIAN LAND CLAIMS SETTLEMENT The Secretary of the Interior (Secretary) is authorized to purchase lands for the purpose of providing them for Indians pursuant to 25 U.S.C. § 465. The Secretary has specific authority to purchase lands for the Band pursuant to 25 U.S.C. § 1724(d), provided the State of Maine approves by legislation such acquisition beforehand. The State of Maine, in 30 M.R.S.A. § 6205-A, approved the acquisition of land for the Band by the Secretary, subject to the approval of any *411 town in which land is purchased for the Band and other filing preconditions. Id. § 6205-A(1)(A), (B), (C). Among these filing preconditions is a requirement that the Secretary file with the Maine Secretary of State a certified copy of the deed, id. § 6205-A(1)(A), and a certified copy of the instrument creating the trust described in § 6208-A. Id. § 6205-A(1)(B). Land purchased by the United States in trust for the Band pursuant to 25 U.S.C. § 465 is exempt from taxes. Nevertheless, the Band must make payments in lieu of taxes to the Town for any land that is owned by the United States in trust for the Band. 30 M.R.S.A. § 6208(2). On December 14, 1987, the Town approved the acquisition of land located in the Town by the United States in trust for the Band, subject to the condition that the Band agree to several provisions, one of which was that the Band make payments to the Town in lieu of taxes. (Pl's Complaint, Exhibit 1). The Town argues that the land in issue here, upon which it assessed taxes and imposed tax liens, is not Indian trust land and, consequently, is not exempt from taxes. It alleges that the Band failed to comply with the filing preconditions established in 30 M.R.S.A. § 6205-A(1)(A), (B), and therefore the State of Maine never approved the deed purporting to establish ownership by the United States in trust for the Band. The Band contends that the Secretary did in fact file with the Maine Secretary of State a certified copy of the trust instrument in compliance with § 6205-A(1)(B), but admits that it does not possess evidence demonstrating that the Secretary filed a certified copy of the deed with the Maine Secretary of State pursuant to § 6205-A(1)(A). The Band argues, however, that the filing requirement is merely a ministerial act and the failure to comply with it should not affect the status of the land as Indian trust land. The Court agrees with the Band. The Secretary of State has no authority to reject or amend the Town's approval of land to be purchased as trust land. While the filing requirements are important to the extent that they provide notice to the rest of the world of the location of the trust land and the presence of a trust instrument, the Town does not allege that it has been prejudiced in this regard. To the extent that the Band has not complied with the filing requirements of § 6205-A(1)(A), (B), it shall do so expeditiously.[1] Its failure to comply with these requirements thus far, however, does not affect the status of the land as Indian trust land, which is exempt from taxes. The Town further argues that the Band did not comply with § 6205-A(1)(C), which requires that the Town approve the acquisition of land before such acquisition occurs. As stated above, the Town approved the acquisition of land by the United States in trust for the Band. Nevertheless, the Town's approval was "on the condition precedent that [the Band] by and through their appropriate governing body duly authorized agrees" to certain provisions. The Town argues that because the Band never alleged in its Motion for Preliminary Injunction that it agreed to these provisions, the Town's approval is null and void. The Town's argument is without merit. On September 27, 1988, the Town, for consideration paid, granted to the United States in trust for the Band the land in issue here. The Town did not complain prior to its execution of this grant of land that the Band did not agree to the provisions in the approval. The Town must do more than point to the absence of an allegation in the Band's Motion for Preliminary Injunction that the Band did indeed agree to the provisions. Such an agreement may be inferred by the Town's willingness to grant the land to the United States in trust for the Band. As stated previously, the Band is required to make payments in lieu of taxes. The Town alleges that the Band has failed to make such payments. Therefore, the Town argues that even if the Town approved the sale of land to the United States in trust for the Band, such approval is effectively revoked and the status of the land as trust land *412 is rescinded. The Court rejects this argument. There is no provision in the Town's approval of the grant of land that the failure of the Band to make payments in lieu of taxes revokes the Town's approval. The Court holds that the Band's alleged failure to make such payments is not fatal to its case. The Court declares, however, that the Band's obligation to make payments in lieu of taxes must be satisfied, and to the extent that such payments are due, the Court orders the Band to make them.[2] The Town contends that the presence of the section entitled "Other remedies" in 30 M.R.S.A. § 6208-A(4) provides the Town with the ability to levy taxes on Indian trust land if the Indian Band does not make payments in lieu of taxes. The statute provides that "[t]he existence of the Houlton Band Tax Fund as a source for the payment of Houlton Band of Maliseet Indians' obligations shall not abrogate any other remedy available to a governmental entity for the collection of taxes, payments in lieu of taxes and fees...." 30 M.R.S.A. § 6208-A(4). The Town argues that the presence of the word "taxes" in addition to "payments in lieu of taxes" suggests that not all lands that are owned by the United States in trust for the Band are tax exempt. The Town's reliance on this statute is misplaced. The Band's property is tax exempt pursuant to 25 U.S.C. § 465. Further, 30 M.R.S.A. § 6208(2) states that "the Houlton Band of Maliseet Indians shall make payments in lieu of taxes on Houlton Band Trust Land...." 30 M.R.S.A. § 6208(2). While Indians may be liable for taxes, see 30 M.R.S.A. § 6208(3), there is nothing that suggests that the Band's property at issue here is subject to taxes. The Court rejects the Town's argument. The remainder of the Town's arguments can be dismissed summarily. First, the Town argues that the Band failed to claim the Town approved the grant of every parcel of land at issue in this action. It directs the Court to the Band's Complaint, which states that "[the Town] adopted a resolution approving the acquisition of certain property in Houlton as Trust Lands." (Complaint, ¶ 22) (emphasis added). The Town's interpretation of the Band's Complaint is not persuasive. The Band sufficiently alleged that the Town approved the acquisition of all land that is in issue here. Second, the Town argues that the Band's failure to make payments in lieu of taxes as required by the Maine Implementing Act, 30 M.R.S.A. § 6208(2), means that the Band did not comply with the terms of state approval, which is required by federal law. 25 U.S.C. § 1724(d). For the reasons stated above, failure of the Band to make payments in lieu of taxes is not determinative. Whereas nothing in this Order should be construed to suggest that the Band is relieved of its duty to make payments in lieu of taxes, failure of the Band to do so does not affect the State's approval of the grant. III. TRIBAL HOUSING AUTHORITY Under the Maine Housing Authority Act, property of a housing authority is exempt from taxes. 30-A M.R.S.A. § 4742(5). The Act, including the exemption from taxes, applies to tribal housing authorities. 30-A M.R.S.A. § 4995. An ordinance adopted by the Band's Tribal Council on April 22, 1988, established the Houlton Band of Maliseet Indians Tribal Housing Authority (Housing Authority). On April 1, 1991, the Band leased to the Housing Authority a certain portion of the property owned by the United States in trust for the Band. According to the lease, all improvements to the property remain the property of the Housing Authority until the expiration of the lease. The Town argues that the Band's property is not trust land that is exempt from taxes. The land on which the Housing Authority is situated is the Band's property. The Town contends that such land is subject to taxes. The Court rejects this argument. The property on which the Housing Authority is located *413 is Indian trust land that is exempt from taxes pursuant to 25 U.S.C. § 465. Further, the Housing Authority itself is properly organized pursuant to 30-A M.R.S.A. § 4995, which limits, in part, the exercise of power of tribal housing authorities to "trust land of the Houlton Band of Maliseet Indians." 30-A M.R.S.A. § 4995. Since the land in question is trust land of the Houlton Band of Maliseet Indians, and since the Maine Housing Authority Act applies to tribal housing authorities, improvements made on Housing Authority property are also exempt from taxes under 30-A M.R.S.A. § 4742(5).[3] IV. CONCLUSION The Court grants Plaintiffs' Motion for a Preliminary Injunction and further declares that the property in question is owned by the United States in trust for the Houlton Band of Maliseet Indians. Therefore, the land, including all improvements thereon, as more fully described in the warranty deed from Ralph E. Longstaff and Justina Longstaff to the United States in trust for the Houlton Band of Maliseet Indians dated September 27, 1988, recorded in the Southern District of Aroostook County Registry of Deeds in Book 2144, Page 198, is exempt from state and local taxation. Any and all tax assessments by the Town on properties owned by the United States in trust for the Houlton Band of Maliseet Indians are null and void. Any and all tax liens filed by the Town on properties owned by the United States in trust for the Houlton Band of Maliseet Indians are null and void. The land leased to the Houlton Band of Maliseet Indians Tribal Housing Authority, including the improvements thereon, is exempt from taxation. Any and all tax assessments or tax liens by the Town on properties leased to the Housing Authority, including the improvements thereon, are null and void. To the extent that the Houlton Band of Maliseet Indians and the Houlton Band of Maliseet Indians Tribal Housing Authority owe payments in lieu of taxes to the Town of Houlton, the Court orders them to make such payments. The Court further orders that the filing requirements of 30 M.R.S.A. § 6205-A(1)(A), (B) be complied with within twenty days of the issuance of this judgment and Order. SO ORDERED. NOTES [1] The Court orders that the filing requirements of § 6205-A(1)(A), (B) be complied with within 20 days of the issuance of this judgment and Order. [2] In its Counterclaim dated September 10, 1996, the Town asked the Court to enter judgment against the Band in the amount of $188,048.23, plus interest and cost, for the payment in lieu of taxes the Town claims is due. The Town did not provide the Court with specific details demonstrating why it is entitled to receive $188,048.23, or if in fact it is due any payments at all. Accordingly, the Court dismisses the Town's Counterclaim without prejudice. [3] The Housing Authority is required to make certain payments in lieu of taxes pursuant to 30-A M.R.S.A. § 4742(4). The Court orders the Housing Authority to make such payments that it owes the Town, if at all. If the Housing Authority does not make such payments to which the Town alleges it is entitled, the Town may request that the Court enter judgment against the Housing Authority for that amount. In such an action, the Town must allege specific facts from which the Court could conclude the Town is entitled to recover the amount that it claims is due.

[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 97-1245 THOMAS R. BOOTHBY, Plaintiff, Appellant, v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] Before Selya, Boudin and Lynch, Circuit Judges. Francis M. Jackson on brief for appellant. Jay P. McCloskey, United States Attorney, David R. Collins, Assistant United States Attorney, and Thomas D. Ramsey, Assistant Regional Counsel, Office of the Chief Counsel, Region I, Social Security Administration, on brief for appellee. November 18, 1997 Per Curiam. In February 1992, claimant Thomas Boothby filed a pro se application for SSI benefits, alleging disability on account of alcoholism and depression. When his application was denied at the administrative level, claimant failed to seek further review. In September 1993, after suffering a heart attack, he filed a second such application and, with the assistance of counsel, was eventually awarded benefits pursuant thereto. The ALJ rejected his request to reopen the first application, however, finding that new evidence documenting his mental impairments failed to establish "good cause" for doing so. See 20 C.F.R. S 416.1488. After the Appeals Council declined review, claimant filed this action in district court challenging the denial of his reopening request. From a judgment dismissing the suit for lack of jurisdiction, he now appeals. The denial of a request to reopen an application for disability benefits is ordinarily not reviewable in federal court. See, e.g., Califano v. Sanders, 430 U.S. 99, 107-09 (1977); Colon v. Secretary of HHS, 877 F.2d 148, 152-53 (1st Cir. 1989) (per curiam). An exception to this rule exists where a colorable constitutional claim has been presented. See , e.g. , Sa nders, 430 U.S. at 109; Dvareckas v. Secretary of HHS , 804 F.2d 770, 772 (1st Cir. 1986) (per curiam). Claimant has attempted to advance such a claim here--arguing that, because his mental impairments prevented him from understanding -2- and pursuing his administrative remedies, and because he lacked legal o reopen the first application contravened due process. Such an argument, when factually supported, has gained a favorable judicial reception. See , e.g., Evans v. Chater, 110 F.3d 1480, 1482-83 (9th Cir. 1997) (listing cases); Parker v. Califano, 644 Torres or other representation at the time, the refusal t F.2d 1199, 1203 (6th Cir. 1981); v. Secretary of HEW, 475 F.2d 466, 468-69 (1st Cir. 1973); see also Social Security Ruling (SSR) 91-5p; Acquiescence Ruling 90-3(4). As one court has observed, "It offends fundamental fairness ... to bind a claimant to an adverse ruling who lacks both the mental competency and the legal assistance necessary to contest the initial determination." Young v. Bowen, 858 F.2d 951, 955 (4th Cir. 1988).1 1 Inexplicably, claimant made no mention of the due process issue in his complaint or in his "itemized statement" (although he did there refer to the analogous SSR 91-5p). The first written reference thereto appears in his objections to the magistrate-judge's report; it is unclear whether the issue was earlier raised at oral argument. Any claim not presented to the magistrate-judge would be waived. See, e.g., Borden v. Secretary of HHS, 836 F.2d 4, 6 (1st Cir. 1987). Yet because the Commissioner has not argued that any such waiver occurred, we need not pursue the matter. Similarly, because the Commissioner has not contended that the constitutional claim was subject to the administrative exhaustion requirement, we need not address the issue. See, e.g., Shrader v. Harris, 631 F.2d 297, 300 (4th Cir. 1980) (excusing failure to present due process issue to Secretary). -3- On appeal, the Commissioner does not take serious issu opositions. Instead, he argues that the medical falls short of "definitively establishing tha e with these pr 2 evidence t plaintiff was unfit to pursue the remaining administrative remedies." Brief at 12. Yet the relevant inquiry here is whether a "colorable" due process violation has been demonstrated. This is not an onerous standard. See, e.g., Evans , 110 F.3d at 1483 (noting that "plaintiff whose challenge was not 'wholly insubstantial, immaterial, or frivolous' stated a colorable constitutional claim") (quoting Boettcher v. Secretary of HHS, 759 F.2d 719, 722 (9th Cir. 1995)); Boock v. Shalala , 48 F.3d 348, 353 (8th Cir. 1995) (indicating that only those claims that were "patently frivolous" would "fail to confer jurisdiction upon the district court") (Campbell, J., sitting by designation). Upon review of the evidence here, we find that claimant has presented a colorable due process claim. Dr. Doiron, although reporting well after the events in question, spoke of an organic disorder with significantly compromised mental functions, variable attention span, impaired concentration 2 The Commissioner does assert at one point, without elaboration, that "the alleged constitutional deprivation must concern the proceeding at which the determination not to reopen was made." Brief at 10 (citing Cherry v. Heckler, 760 F.2d 1186, 1190 n.4 (11th Cir. 1985)). Yet other courts have taken a broader view of the Sanders exception, see, e.g., Evans, 110 F.3d at 1482-83, which we regard as the preferable approach. -4- levels, depressive symptomology and substandard reading y.3 And even Dr. Luongo, on whom the Commissioner relies, spoke of an emotionally unstable personality disorder with strong sociopathic and alcoholic features, a borderline- defective intellect, a chronic difficulty in maintaining any leve abilit l of responsibility, and an inability to handle funds. Factfinding is of course the function of the agency rather than a court. See, e.g., Torres, 475 F.2d at 469. We hold simply that the evidence of mental incapacity in 1992, when claimant failed to pursue his administrative remedies, is sufficient to warrant further inquiry by the Commissioner. Because the due process inquiry involves a fact-specific judgment in evaluating medical evidence, we remand the case so the Commissioner can make this judgment as an initial matter and--if satisfied that there was a denial of due process-- address the merits. This procedure is consistent with past practice in earlier cases. We think it worth emphasizing that this remand turns on whether claimant has made a "colorable" due process claim. Nothing in this opinion is designed to suggest that the Commissioner should necessarily find that a violation occurred. 3 The Commissioner has not objected to consideration of the second Doiron report, which was first presented to the Appeals Council. See, e.g., Perez v. Chater, 77 F.3d 41, 44- 45 (2d Cir. 1996) (following majority view that new evidence submitted to Appeals Council is properly deemed part of administrative record, even when Council has denied review). -5- We add that, given claimant's failure to raise the due process issue before the Commissioner, and given his tardiness in presenting that issue squarely to the district court, see note 1 supra, any request for attorney's fees in this court would be looked upon with disfavor. The judgment is vacated and the case remanded to the district court, with directions to remand to the Commissioner for further action consistent herewith. No costs. -6-

626 F.Supp. 1367 (1986) Jerry M. HATCH, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant. No. C-85-3931-WWS. United States District Court, N.D. California. February 6, 1986. *1368 Catherin Ellis, Fremont, Cal., for plaintiff. Judith A. Whetstine, Asst. U.S. Atty., San Francisco, Cal., for defendant. MEMORANDUM OF OPINION AND ORDER SCHWARZER, District Judge. Plaintiff commenced this action under 42 U.S.C. § 405(g) to obtain judicial review of a final decision by the Secretary of Health and Human Services that disability benefits payable on plaintiff's earnings account are subject to reduction because of plaintiff's receipt of a state workers' compensation settlement arising from the same injury. The action comes before this Court on cross-motions for summary judgment. Federal disability benefits are subject to reduction when the person on whose earnings account the benefits are paid also obtains periodic workers' compensation benefits. 42 U.S.C. § 424a(a). This offset provision also covers lump sum workers' compensation awards or settlements when they are a commutation of, or substitute for, periodic payment of benefits. 42 U.S.C. § 424a(b). Portions of a workers' compensation award or settlement allocated to past or future medical expenses, however, are excluded from the operation of the offset provisions. 20 C.F.R. § 404.408(d). Plaintiff contends that his workers' compensation settlement was a lump sum amount for specified purposes at a particular point in time, and therefore was not subject to being offset as an award in lieu of periodic benefits under 42 U.S.C. § 424a(b). He also contends that the entire settlement amount was less than his past and future medical expenses and for that reason too not subject to being offset under 20 C.F.R. § 404.408(d). FACTUAL BACKGROUND Following an undisputed determination that plaintiff suffers from total disability, plaintiff and his dependents were found entitled to disability benefit payments. On May 29, 1983, plaintiff was notified that benefits payable to his dependents were subject to offset because he had received a *1369 workers' compensation settlement related to his injury. This determination was upheld on reconsideration by the Social Security Administration. Plaintiff then requested a hearing before an administrative law judge (ALJ), who considered the case de novo. The ALJ determined that the benefits payable on the plaintiff's earnings account were subject to offset because of the workers' compensation settlement. The Appeals Council, after considering additional evidence, adopted the ALJ's determination as the final decision of the Secretary on April 24, 1985. EVIDENCE PRESENTED TO THE ALJ The evidence before the ALJ showed that plaintiff filed a claim for disability benefits on August 29, 1978. In view of plaintiff's total disability owing to quadriplegia, he was awarded benefits which would continue until the earlier of age 62 or his death. His wife and children were also found entitled to benefits on his account. But in May 1982, the Social Security Administration, after being notified of the workers' compensation settlement for plaintiff, determined that a reduction in benefits was appropriate. The settlement consisted of the following documents, all in the record: — an order of the California Workers' Compensation Appeals Board approving the settlement (as required by California law); — a standard Compromise and Release (C & R) form used by the Board; — an Addendum (referred to in paragraphs 5 and 11 of the standard form) specifying the allocation of the settlement amount and certain restrictions on its disbursement, and reciting release of statutory workers' compensation liability against the employer and the insurance carrier; — a "Baird Formula" calculation related to the satisfaction of the lien of the California Employment Development Department ("EDD") for unemployment benefits paid on account of plaintiff's disability; — and a "Gregory Calculation," a mandatory calculation related to the satisfaction of a lien of the California Laborers Health & Welfare Trust Fund. The order approving the C & R recited a settlement amount of $131,090.40, payable according to "the provisions of paragraph 5 and Addendum of the compromise and release ..." The standard C & R form summarized the details of the claim. In paragraph 6, the form recited that unpaid medical bills were "in dispute," and that future medical and hospital expenses were estimated at "$ unknown. Unpaid future medical and hospital expense ... assumed as follows: all by applicant." Paragraph 9 recited the existence of disputes as to the liability for the injury and the need for past and future medical care, and stated that the parties are settling the matter "to avoid the hazards of litigation and buy their peace." The Addendum related to paragraphs 5 and 11. As to paragraph 5, the Addendum detailed the allocation of the settlement to several purposes: purchase of a residence for plaintiff, renovations of the residence, property taxes and assessments related to the purchase, and amounts to settle attorney's fees and state liens. The Addendum specified that the settlement amount was to be paid to plaintiff in a lump sum in a blocked bank account, with disbursements from the account only upon the order of the Appeals Board and only for the specified purposes. The Addendum also recited that Medi-Cal waived its lien for medical care costs. A letter from the California Attorney General's Office confirmed this lien waiver, conditioned on settlement on the terms ultimately agreed to, and confirmed plaintiff's continuing Medi-Cal eligibility. As to paragraph 11 of the C & R, the Addendum recited release of the employer and the insurance carrier from all further workers' compensation liability for plaintiff's injury. The "Baird Formula" was required by California Labor Code § 4904 (West 1971). This section protects liens of the EDD on workers' compensation settlements. The *1370 Baird Formula is a method of reducing such liens proportionately. when a worker's claim is settled for less than its full amount. The formula was approved by the California Supreme Court in California-Western States Life Insurance Co. v. Industrial Accident Commission (Baird), 59 Cal.2d 257, 28 Cal.Rptr. 872, 379 P.2d 328 (1963). It seeks to assure fairness in proportional reductions of EDD liens by showing a reasonable estimate of the full value of the claims a if the worker had prevailed. Thus, the Baird Formula for Hatch's claim showed amounts for permanent disability ($214,644.00), past medical expenses not reimbursed ($109,292.00), and future medical treatment ($716,169.00), for a total value of $1,040,105.00. These figures, in conjunction with the actual settlement amount, then establish the proportion of EDD's lien which might reasonably be paid from the settlement. The "Gregory Calculation" is a similar device for the proportional payment of other lien claims against the settlement, under California Labor Code § 4903.1 (West Supp.1985) and Kaiser Foundation Hospitals v. Workers' Compensation Appeals Board (Gregory), 87 Cal.App.3d 336, 151 Cal.Rptr. 368 (1979), and Hatch's claim recited the same figures here as for the Baird Formula. Also in the record as additional evidence before the Social Security Appeals Council is a letter from the insurance carrier's attorney to Hatch's then attorney giving his expert opinion on the meaning of the recitals of past and future medical expenses in paragraph 6 of the C & R form. According to counsel it is customary to state in a compromise and release that medical expenses are "in dispute" and future expenses "unknown" and that those statements do not contravene the specific figures provided in Baird and Gregory computations and approved by the Board. Also in evidence were letters between attorneys for plaintiff and the employer's insurance carrier concerning settlement discussions. These letters show the development of a settlement the bulk of which was intended to enable plaintiff to acquire a home and remodel it as necessary to make it suitable for use by him as a disabled person. Also in evidence were orders of the Workers' Compensation Appeals Board directing the disbursement of funds from the blocked bank account established by the settlement. The first disbursement order, on December 23, 1981, released funds for the purchase of a house, and the second, on August 9, 1982, released funds for the medically recommended renovations. The second order exhausted the funds due plaintiff under the settlement. The ALJ found that the plaintiff had medical, legal, or related expenses, including remodeling costs to make the house suitable for use by a severely handicapped person, not subject to being offset in the amount of $44,190.40. The ALJ found that $86,900.00, the balance of plaintiff's workers' compensation settlement, was to be offset to reduce the disability benefits payable on plaintiff's account. APPLICABLE LAW AND DISCUSSION On judicial review under 42 U.S.C. § 405(g), the Secretary's decision will be upheld unless it is based on legal error, or is not supported by substantial evidence viewing the record as a whole. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984). "Substantial evidence ... means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). The decision of the Secretary will be set aside, however, if the proper legal standards were not applied in weighing the evidence and making the decision even though the findings are supported by substantial evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir.1978). "As a general rule, the interpretation of written contracts is a matter of law," and is so reviewed. Energy Oils, Inc. v. Montana Power Co., 626 F.2d 731, 734 (9th Cir.1984). The first issue presented is whether the award, being a lump sum award, falls within the offset provisions of 42 U.S.C. *1371 § 424a(a) providing for the reduction of benefits by the amount of periodic benefits received under a workers' compensation law. Section 424a(b) provides that if a periodic benefit is payable other than on a monthly basis, the reductions shall be made as determined by the Secretary, unless the "benefit is payable as a lump sum." If, however, a lump sum benefit "is a commutation of, or a substitute for, periodic payments," the offset provisions nevertheless apply. The undisputed evidence shows that the lump sum payment was made on account of a settlement which expressly relieved the employer from any further workers' compensation liability. "Where the right to and liability for periodic workers' compensation benefits are thus extinguished by a voluntary settlement, the settlement can only be regarded as a `substitute' for the payments." Black v. Schweiker, 670 F.2d 108, 110 (9th Cir.1982). The Secretary, under § 424a(b), is thus required to offset such a lump sum settlement against the plaintiff's federal benefits to approximate the result called for by § 424a(a). The second issue presented is whether all or any part of the $86,900 which would otherwise have to be offset qualifies for exclusion under the regulation which states: Amounts paid or incurred, or to be incurred, by the individual for medical, legal, or related expenses in connection with the claim for public disability payments ... or the injury or occupational disease on which the public disability award or settlement is based, are excluded in computing the reduction to the extent they ... reflect either the actual amount of expenses already incurred or a reasonable estimate, given the circumstances in the individual's case, of future expenses. Any expenses not established by evidence required by the Administration or not reflecting a reasonable estimate of the individual's actual future expenses will not be excluded. These medical, legal, or related expenses may be evidenced by the public disability award, compromise agreement, a court order, or by other evidence as the Administration may require. 20 C.F.R. § 404.408(d). Plaintiff argues that because his past and future medical expenses far exceed the amount paid to him in settlement, the full settlement must be excluded. The ALJ rejected the argument on the ground that the settlement "agreement specifically required that the lump sum be used for the purchase of a residence and additional expenses related to that residence. Therefore, under the terms of the agreement, the funds could not have been used to pay past or future medical expenses, and, in fact, they were not." Appellate courts have taken different approaches to the resolution of this problem. In Iglinsky v. Richardson, 433 F.2d 405 (5th Cir.1970), the court held that where Louisiana law provided for a specified medical benefit payable separately by the employer and no part of the award itself was specifically attributable to medical expenses, the entire award was properly offset against disability payments. Alternatively, in Worley v. Harris, 666 F.2d 417 (9th Cir.1982), the court held the entire award to be properly offset because under the settlement agreement the worker agreed to be responsible for any future medical expenses. The Senate Report on the amendment providing for the offset states that the Secretary would not offset any part of workers' compensation benefits which are equal to amounts paid or incurred by the worker for medical expense "except to the extent that special provision is made in the award to cover them or they are provided without cost to the worker." S.Rep. 404, 89th Cong. 1st Sess.1965, U.S.Code Cong. & Adm.News, pp. 1943, 2201, quoted in Iglinsky, supra, 433 F.2d at 408. It is quite clear that the intent of Congress was to prevent collection of duplicate benefits. Thus, if the workers' compensation award, or settlement, represents benefits on account of the worker's disability, *1372 the federal disability payments will be reduced pro tanto. However, to the extent the workers' compensation benefits defray medical expenses, there is no duplication with federal disability benefits and those benefits therefore are excluded from offset. In Iglinsky, Louisiana law specifically provided that medical expenses are to be paid by the employer and are not covered by the workers' compensation award. Hence that award was subject to being offset. In Worley, the court interpreted the terms of the compensation settlement (probably erroneously) as excluding medical expenses; the court relied on boiler-plate in the settlement agreement relieving the employer and the carrier from future liability for medical expenses. In the instant case, special provision was made for medical expenses primarily in a negative sense: the Medi-Cal lien for past medical expenses was waived, future eligibility for Medi-Cal benefits was guaranteed, and a mandatory allocation to non-medical purposes was made of the major part of the award. Under the terms of the settlement, payments of medical expenses clearly had to be made from sources other than the award and hence none of the $86,900 could be excluded from offset. Although there is here no specific provision for the payment of medical expenses, the effect of the mandatory allocation of the benefits is essentially the same as the provision made in Iglinsky. It is true that the Secretary's regulation is not free from ambiguity. If an award were made, or settlement paid, which was not specifically allocated to some purpose, the fact that medical expenses in excess of the award were expected to be incurred by the worker in the future would presumably suffice to exclude the amount from offset. But to apply that reasoning to a settlement which precludes the use of the money for medical purposes would frustrate the purpose of the regulation to prevent receipt of duplicate disability benefits. Where, as here, the workers' compensation benefit is mandated to be used purely as a disability benefit (with medical expenses to be paid from other sources), excluding it from the offset calculation would clearly result in duplication. Accordingly, defendant's motion for summary judgment will be granted. IT IS SO ORDERED.

281 F.3d 568 Thomas D. MONZO, Petitioner-Appellant,v.Ron EDWARDS, Warden, Respondent-Appellee. No. 00-3733. United States Court of Appeals, Sixth Circuit. Argued January 29, 2002. Decided and Filed February 22, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Richard F. Swope (argued and briefed), Swope & Swope, Reynoldsburg, OH, for Petitioner-Appellant. M. Scott Criss (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee. Before: GUY and CLAY, Circuit Judges; NUGENT, District Judge.* OPINION RALPH B. GUY, JR., Circuit Judge. 1 Petitioner, Thomas D. Monzo, appeals from the district court's denial of his petition for writ of habeas corpus filed under 28 U.S.C. § 2254, through which he challenged his 1994 state convictions for aggravated burglary, kidnapping, and two counts of rape. The petition asserted six claims of ineffective assistance of trial counsel and a seventh claim for ineffective assistance of appellate counsel. Monzo argues that the district court erred in finding (1) that four of the claims had been procedurally defaulted in state court, and (2) that the state court's rejection of the other three claims on the merits did not involve either an unreasonable application of federal law or an unreasonable determination of the facts. After review of the record and the arguments presented on appeal, we affirm. I. A. Background 2 In the early hours of October 24, 1987, Patricia Groseck was awakened by a male intruder lying on top of her in bed. Because the house was dark and the man later placed a pillowcase on her head, she could only describe him as being around six feet tall and 185 pounds with fine, silky, or thinning hair. She also said he spoke with a distinct southern or Appalachian accent. He performed cunnilingus on her and asked for her keys. When Groseck said they were in her purse in the kitchen, he called her a liar. The man then had sexual intercourse with her. Asking for her keys again, he took her to the kitchen to find them. Groseck, who was still wearing the pillowcase, found the keys on top of a kitchen stool. The intruder demanded to know how to disengage the alarm system and which of her keys would open the back door. The man led her to the landing inside the basement door and told her to count to three hundred. Groseck waited and, after hearing the back door open and close, she called the police. 3 The police discovered that the intruder had entered through a window leading to the crawl space, which was the only window not connected to the alarm system. A knife from the kitchen was found on the floor next to Groseck's bed. Police also found Groseck's open wallet and purse in the bedroom. Groseck testified that she had left her purse, with her wallet inside it, on the kitchen counter. Groseck was examined at the hospital, and samples taken were found to contain sperm. That was consistent with Groseck's statement that she believed the man had ejaculated. However, the vaginal swabs and slides, along with the bed sheets and pillow cases taken from the house, were mistakenly destroyed by the police in 1990. 4 Two fingerprints lifted from the house were kept for comparison, one from the outside of the wallet and one from the doorjamb around the door to the basement. However, it was not until June 1993, after the Automated Fingerprint Identification System (AFIS) became available, that Monzo was first identified as a suspect. The AFIS search included him as one of six possible matches. Subsequent fingerprint analysis determined that the print lifted from Groseck's wallet matched Monzo's right thumbprint and that the print taken from the trim around the basement door matched Monzo's right middle and ring fingers. 5 Monzo claimed his fingerprints could be explained because he had worked for Jack Travis, a contractor who had renovated part of Groseck's house. Monzo testified that he had been in the house at least ten times, including three or four times during 1987, to perform remodeling work and odd jobs for Travis. He said he was paid in cash for the odd jobs and may have touched Groseck's wallet when handing it to her so that she could pay him. The fingerprint expert testified, however, that the fingerprint from the wallet was relatively fresh because prints cannot be lifted from a porous surface after about fifteen days. Also, no overlapping prints were found on the print lifted from Groseck's wallet. 6 Groseck testified that Travis did not send any workers to her house after the spring of 1986. Travis contracted to do major remodeling to Groseck's kitchen, including moving the basement stairs, which took place from approximately the end of July to mid-September 1985. In the spring of 1986, Groseck called Travis back to have him repair the back door of the house because it had been installed incorrectly. In rebuttal, Travis testified that Monzo worked for him for about two and one-half weeks in September 1985. Travis also testified that except for the remodeling job in 1985, he only sent a worker to Groseck's house on one other occasion to fix the back door. 7 In April 1987, Groseck hired a second contractor to do further remodeling work that included installing a new six-panel door in the doorway leading to the basement. Groseck then hired a painter who painted the brick and plaster walls, the molding, the newly installed door, and the trim on the door leading to the basement. Groseck paid him for his work in June 1987. The painter also testified that he painted the middle room of the house including the wood trim around the new basement door shortly before June 15, 1987. The fingerprint expert testified that the print left on the doorjamb could not have predated the last time the trim was painted. 8 Monzo also asserted as an alibi defense that he went to see his parents in Alpharetta, Georgia, between October 19 and November 12, 1987. Brenda Monzo, petitioner's wife at the time of trial, testified that she and Monzo were living together in October 1987. They had a disagreement and he left Columbus, Ohio, on October 19 to go visit his parents in Georgia and did not return until November 11, 1987. Brenda's best friend, Rheta Marcum, testified that Brenda told her on October 19 that Monzo had left Columbus. Marcum also testified that petitioner called her on or about October 21, and that she knew he was calling from Georgia because she talked to his mother during the call. Petitioner's mother, Patricia Monzo, testified that he was with her in Alpharetta, Georgia, on October 24, 1987. Another witness, Merton Anderson, testified that he met Monzo in Alpharetta, Georgia, on the morning of October 24, 1987, and that he remembered the date because he invited Monzo to a Halloween party the following weekend. B. Procedural History 9 A criminal complaint charging one count of rape was filed against Monzo on July 3, 1993, less than four months before the statute of limitations would have run. On July 27, 1993, Monzo waived preliminary hearing and was bound over to the Common Pleas Court of Franklin County, Ohio. Monzo was indicted on charges of aggravated burglary, kidnapping, and two counts of rape on December 16, 1993, and was convicted by a jury of all charges on May 17, 1994.1 10 With the assistance of new counsel, Monzo appealed his convictions on the grounds of prosecutorial misconduct, insufficiency of the evidence, improper exclusion of evidence, and error in the revocation of his bond. No claims of ineffective assistance of counsel were asserted. The Court of Appeals found no error and affirmed his convictions on March 14, 1995. The Ohio Supreme Court denied leave to appeal on July 19, 1995. 11 In September 1996, having obtained a third attorney, Monzo filed a petition for post-conviction relief under Ohio Rev.Code Ann. section 2953.21, raising several claims of ineffective assistance of trial counsel. On March 11, 1997, after an evidentiary hearing, the trial court denied the petition on the grounds of res judicata and lack of merit. The Ohio Court of Appeals affirmed the denial of post-conviction relief on February 17, 1998, finding that only some of the claims were barred by res judicata. The other claims of ineffective assistance of counsel were denied on the merits. The Ohio Supreme Court declined to review that decision. 12 On May 8, 1998, Monzo filed a motion to reopen or reconsider his appeal pursuant to Ohio App. R. 26(B). The motion, based on a claim of ineffective assistance of appellate counsel, also reasserted the ineffective assistance of counsel claims raised in the post-conviction proceeding. The Court of Appeals denied the motion, finding both that the motion was untimely and that the claims had been previously addressed. Monzo appealed, but the Ohio Supreme Court declined jurisdiction. 13 The petition for writ of habeas corpus, filed on February 10, 1999, asserted six claims of ineffective assistance of trial counsel and a seventh claim of ineffective assistance of appellate counsel. On May 4, 2000, the district court denied the petition finding that claims 2, 5, 6, and 7 were procedurally defaulted in state court and that petitioner's claim of ineffective assistance of appellate counsel would not establish cause for the default. With respect to claims 1, 3, and 4, which were adjudicated on the merits in state court, the district court concluded that the Ohio Court of Appeals' decision was not contrary to or an unreasonable application of clearly established federal law, and was not an unreasonable determination of the facts in light of the evidence presented in state court. Monzo appealed, and the district court granted his request for a certificate of appealability. II. 14 This petition, filed on February 10, 1999, is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The state court's findings of fact are presumed to be correct and may only be contravened by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We review the district court's conclusions concerning a habeas petition de novo and its factual findings for clear error. See Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). A. Procedural Default 15 Petitioner challenges the district court's finding that he procedurally defaulted claims 2, 5, 6, and 7 and failed to demonstrate cause and prejudice to excuse the default. In his second, fifth, and sixth habeas claims, petitioner argued that he was denied effective assistance of counsel when his trial attorney failed to move to dismiss the charges on the grounds of pretrial delay or the statute of limitations (claim 5); failed to move to suppress evidence or to dismiss the case based on the destruction of the "rape kit" evidence by the police (claim 2); and failed to move to suppress the testimony of Sylvia Acton, a criminalist, concerning the presence of semen in samples taken from the victim (claim 6). In his seventh claim, petitioner argued that he was denied effective assistance of counsel when his appellate counsel failed to raise his claims of ineffective assistance of trial counsel on direct appeal (claim 7). 16 When "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). See also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).2 In determining whether a claim has been procedurally defaulted, this court has applied the following four-part test: (1) the court must determine that there is a state procedural rule with which the petitioner failed to comply; (2) the court must determine whether the state courts actually enforced the state procedural sanction; (3) the state procedural rule must have been an adequate and independent state procedural ground upon which the state could rely to foreclose review of a federal constitutional claim; and (4) if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for his failure to follow the rule and that actual prejudice resulted from the alleged constitutional error. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). See also Scott v. Mitchell, 209 F.3d 854, 863-64 (6th Cir.), cert. denied, 531 U.S. 1021, 121 S.Ct. 588, 148 L.Ed.2d 503 (2000). 1. Default 17 First, in considering whether the state courts enforced a state procedural rule to bar review of petitioner's federal claims, the district court looked no further than the untimely filing of the motion to reopen the appeal under Rule 26(B). Respondent maintains, however, that res judicata was the state procedural rule that actually barred the state court from considering his ineffective assistance of trial counsel claims on the merits. When the last reasoned decision rejecting a federal claim "explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). See also Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994).3 18 In this case, the Ohio Court of Appeals' decision affirming the denial of post-conviction relief explicitly relied on res judicata in refusing to consider the ineffective assistance of counsel claims that could have been raised on direct appeal. Further, nothing in the Court of Appeals' subsequent decision denying the motion to reopen the appeal indicates that it disregarded the procedural bar or considered the defaulted claims on the merits. On the contrary, the court's later decision clearly relied on its earlier disposition of the ineffective assistance of trial counsel claims. Compare Manning v. Huffman, 269 F.3d 720, 724 (6th Cir.2001) (no procedural default because later decision addressed claim on the merits). We conclude, therefore, that the state courts applied res judicata to bar consideration of claims 2, 5, and 6 on the merits. 19 In Ohio, res judicata has long been held to bar consideration of constitutional claims in post-conviction proceedings brought under Ohio Rev.Code Ann. section 2953.21 when those claims have already been or could have been fully litigated either before judgment or on direct appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, 105-06 (1967). It is also settled that res judicata applies when a defendant who is represented by new counsel on direct appeal fails to raise the issue of ineffective assistance of trial counsel, and the issue could fairly have been determined without resort to evidence outside the record. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 170 (1982). We find that res judicata was an adequate and independent state procedural ground upon which the state court actually relied to bar consideration of the ineffective assistance of counsel claims asserted in habeas claims 2, 5, and 6. See, e.g., Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir.2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.2001); Byrd v. Collins, 209 F.3d 486, 521 (6th Cir.2000), cert. denied, 531 U.S. 1082, 121 S.Ct. 786, 148 L.Ed.2d 682 (2001); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). 20 Seeking to excuse this default, petitioner argues that he was denied effective assistance of appellate counsel by the failure to raise the defaulted claims on direct appeal. Attorney error does not constitute "cause" unless it rises to the level of a constitutional violation of the right to counsel under Strickland. Murray, 477 U.S. at 488, 106 S.Ct. 2639. The district court evaluated this claim on the merits and concluded that petitioner had not demonstrated that he was denied effective assistance of counsel under Strickland. We may not turn directly to the merits of the claim, however, because the Supreme Court has recently made clear that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). 21 Petitioner's ineffective assistance of appellate counsel claim was raised in his motion to reopen the appeal, and the state court clearly applied the time limitation in Rule 26(B) to bar consideration of this claim on the merits. The Ohio Court of Appeals explained that 22 appellant's current counsel also represented appellant ... in 1996-1997, in the post[-]conviction relief proceeding, raising the same issues that are presented in appellant's instant petition. In light of the fact that, by and through present counsel, appellant could have sought to reopen his 1994 appeal upon grounds of ineffective assistance of counsel at the point in time during which he sought post[-]conviction relief upon those same issues, this court finds that appellant's motion is not timely filed. 23 By the time that Monzo's post-conviction motion was filed in September 1996, it was well established that claims of ineffective assistance of appellate counsel must be raised in a motion for reconsideration before the Ohio Court of Appeals. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). Rule 26(B), which was amended July 1, 1993, provides that "[a]n application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." 24 Petitioner asserts that the "good cause" requirement in Rule 26(B) is not an adequate state procedural ground because there is no uniformity in its application. A state procedural rule is adequate if it was "firmly established" and "regularly followed" by the time it was applied in this case. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Petitioner relies heavily on dicta from this court's decision in White v. Schotten, 201 F.3d 743, 751 (6th Cir.), cert. denied, 531 U.S. 940, 121 S.Ct. 332, 148 L.Ed.2d 267 (2000). Referencing a number of Ohio state court decisions from 1993 and 1994, the court in White stated that: 25 A review of the Ohio court of appeals cases attached to Petitioner's brief reveals that the state courts have not achieved consensus on what constitutes "good cause" to excuse non-compliance with Rule 26(B). Nonetheless, we recognize that the rule is relatively new and acknowledge that it may take some time for the Ohio courts to achieve consensus. 26 Id. at 751 (citations omitted). Conceding that the "good cause" requirement is consistently applied, Monzo argues that there was no firmly established or regularly followed standard for doing so at the time his motion to reopen was denied in June 1998. However, he has not called this court's attention to any Ohio decisions demonstrating that the standard was not uniformly applied to cases like his when his motion was denied. 27 Our review of Ohio law leads us to conclude that there was sufficient guidance as to what would not constitute good cause at the time the rule was applied in this case. We do not dwell on the decisions issued shortly after the Murnahan decision, as the Ohio courts have had several years since then to consider the "good cause" requirement. See Ballew v. Mitchell, No. C-1-98-867, 2001 WL 242563, at *7 (S.D.Ohio Mar.7, 2001) (not particularly instructive to rely heavily on decisions issued shortly after Murnahan). The Ohio Supreme Court shed light on the appropriate focus for determining good cause under Rule 26(B) in State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784, 786 (1995). See State v. Sweeney, 131 Ohio App.3d 765, 723 N.E.2d 655, 656-57 (1999). That is, the Court in Reddick stressed that: 28 Neither Murnahan nor App. R. 26(B) was intended as an open invitation for persons sentenced to long periods of incarceration to concoct new theories of ineffective assistance of appellate counsel in order to have a new round of appeals. Rather, both were intended to allow the belated presentation of colorable claims that defendants/appellants were prevented from presenting timely by particular circumstances. Lack of effort or imagination, and ignorance of the law, are not such circumstances and do not automatically establish good cause for failure to seek timely relief. 29 647 N.E.2d at 786. Further, "issues of ineffective assistance of appellate counsel must be raised at the first opportunity to do so." State v. Williams, 74 Ohio St.3d 454, 659 N.E.2d 1253, 1254 (1996). See also State v. Franklin, 72 Ohio St.3d 372, 650 N.E.2d 447, 448 (1995) (ignorance of the law does not justify untimely filing of a motion to reopen); State v. Kaszas, No. 72546/72547, 2000 WL 1195676, at *1 (Ohio Ct.App. Aug. 14, 2000) (listing decisions defining what constitutes good cause). Thus, we find the state courts relied on an adequate and independent state procedural ground to foreclose review of petitioner's Murnahan claim.4 30 Even if it was not an adequate state procedural ground, however, we agree with the district court that Monzo was not denied effective assistance of appellate counsel and, therefore, cannot demonstrate cause to excuse the procedural default of the ineffective assistance of trial counsel claims. 31 2. Ineffective Assistance of Appellate Counsel as "Cause" 32 To establish ineffective assistance of counsel under Strickland, the defendant must show that his counsel's performance fell below an objective standard of reasonableness and that his counsel's errors were so serious as to prejudice the defendant. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Review of counsel's performance is highly deferential and requires that courts "indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To establish prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. 33 There is a right to effective assistance of counsel in connection with a defendant's first appeal of right. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). It is not necessary for appellate counsel to raise every nonfrivolous claim on direct appeal. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Coleman, 268 F.3d at 430-31. In fact, the process of "`winnowing out weaker arguments on appeal'" is "the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308). "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1986). 34 Petitioner maintains that his appellate counsel was constitutionally ineffective for failing to argue that trial counsel rendered ineffective assistance of counsel by failing to (1) seek suppression of evidence or dismissal of the charges as a result of the destruction of the "rape kit" evidence; or (2) seek dismissal of the charges as a violation of the statute of limitations or on the grounds of unjustified pretrial delay. We agree with the district court that petitioner has failed to show that he was denied effective assistance of counsel on appeal. 35 a. Destruction of Evidence 36 The "rape kit" evidence was destroyed by the police in 1990. At that time, the police had not identified any suspects and DNA testing had not been performed. Also, the police department did not have a written policy regarding the destruction of evidence. The trial court found that "the evidence initially gathered by the police department was inadvertently and by mistake ordered to be destroyed by Detective Carder of the Columbus Police Department." Although petitioner's trial counsel learned that the evidence had been destroyed, he did not move to dismiss the charges or suppress evidence that semen was found in the samples. During post-conviction proceedings, trial counsel conceded that he was unaware of Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The district court evaluated this claim on the merits and correctly concluded that petitioner was unable to demonstrate a due process violation under Youngblood. As such, the failure to raise the issue on appeal was not constitutionally ineffective. 37 As we recently explained in United States v. Wright, 260 F.3d 568, 570 (6th Cir.2001), separate tests apply to determine whether the state's failure to preserve evidence rises to the level of a due process violation in cases in which material exculpatory evidence is not accessible, Trombetta, 467 U.S. at 489, 104 S.Ct. 2528, as opposed to cases in which "potentially useful" evidence is not accessible, Youngblood, 488 U.S. at 58, 109 S.Ct. 333. When the state fails to preserve evidentiary material "of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," a defendant must show: (1) that the government acted in bad faith in failing to preserve the evidence; (2) that the exculpatory value of the evidence was apparent before its destruction; and (3) that the nature of the evidence was such that the defendant would be unable to obtain comparable evidence by other means. Youngblood, 488 U.S. at 57, 109 S.Ct. 333; United States v. Jobson, 102 F.3d 214, 218 (6th Cir.1996). 38 "The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, 488 U.S. at 57 n.*, 109 S.Ct. 333. It is not enough that the police knew that semen samples could be determinative of guilt or innocence if preserved or tested. Although the investigation apparently remained open, the police had not identified Monzo or anyone else as a suspect in the crimes at the time the evidence was mistakenly destroyed. When the government is negligent, or even grossly negligent, in failing to preserve potentially exculpatory evidence, bad faith is not established. Wright, 260 F.3d at 571; Jobson, 102 F.3d at 218. 39 b. Statute of Limitations and Pretrial Delay 40 A complaint charging Monzo with one count of rape was filed on July 3, 1993, less than four months before the six-year statute of limitations would have run, and he was bound over to municipal court on July 27, 1993. On December 16, 1993, the indictment was filed expanding the charges to burglary, kidnapping, and two counts of rape. Petitioner claims that trial counsel was ineffective for not seeking to dismiss the charges either as a violation of the statute of limitations or as a violation of due process resulting from pretrial delay. In turn, he claims that appellate counsel was ineffective for not raising this claim on direct appeal. 41 Petitioner claims that his counsel should have argued that the prosecution was not commenced within the limitations period set forth in Ohio Rev.Code Ann. section 2901.13. However, section 2901.13(E) provides that: 42 A prosecution is commenced on the date an indictment is returned or an information filed, or on the date a lawful arrest without a warrant is made, or on the date a warrant, summons, citation, or other process is issued, whichever occurs first.... A prosecution is not commenced upon issuance of a warrant, summons, citation, or other process, unless reasonable diligence is exercised to execute the same. 43 The criminal complaint was filed on July 3, 1993, and an arrest warrant issued the same day. Petitioner appeared and waived his right to preliminary hearing on July 26, 1993. Thus, as the district court concluded, the criminal prosecution was commenced on July 3, 1993. Given that petitioner has offered no authority to suggest that Ohio might conclude that the prosecution was not commenced at that time, we cannot find that counsel's failure to raise the issue on appeal was ineffective.5 44 With respect to preindictment delay, trial counsel did not object to the extensions granted to the government enlarging the time between bindover and indictment and did not argue that the delay in prosecution violated due process. Petitioner continues to rely on Rule 39(B)(2) of the Rules of Superintendence for the Courts of Ohio, which provides that: 45 When an accused has been bound over to a grand jury and no final action is taken by the grand jury within sixty days after the date of bindover, the court or the administrative judge of the court shall dismiss the charge unless for good cause shown the prosecuting attorney is granted a continuance for a definite period of time. 46 Petitioner does not dispute that the court granted the prosecution extensions in accordance with this rule, or claim that there was not good cause. Rather, petitioner argues that appellate counsel was ineffective for not raising trial counsel's failure to object to the 130 days that elapsed between bindover and indictment. There is no showing, however, that the failure to raise the issue resulted in prejudice to the defendant. 47 Petitioner's final claim rests on the contention that trial counsel should have moved to dismiss the charges on the grounds that the preindictment delay violated due process under State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984). Adopting the test set forth in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Ohio Supreme Court held that "unjustifiable delay between the commission of an offense and a defendant's indictment therefor, which results in actual prejudice to the defendant, is a violation of the right to due process." 472 N.E.2d at 1099 (syllabus). Delay in commencing prosecution is unjustifiable when the state uses delay to gain a tactical advantage over the defendant, or through negligence or error ceases to investigate, and later, without new evidence, decides to prosecute. Luck, 472 N.E.2d at 1105. 48 The district court rejected this claim on the merits, reasoning as follows: 49 While the acceptability of a preindictment delay is generally measured by the applicable statute of limitations, the Fifth Amendment also imposes due process restraints on the length of a preindictment delay. See United States v. Atisha, 804 F.2d 920, 928 (6th Cir.1986). In assessing claims of pre-indictment delay, this court applies the two-part test set forth in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). See United States v. Brown, 959 F.2d 63, 66 (6th Cir.1992). A defendant must demonstrate that (1) he suffered substantial prejudice to his right to a fair trial as a result of the delay; and (2) the government purposely delayed in order to gain a tactical advantage over the defendant. See Brown, 959 F.2d at 66. 50 In the present case, even if the Court assumes arguendo that petition[er] was prejudiced by the delay, petitioner cannot demonstrate that the prosecution purposely delayed in order to gain a tactical advantage over the defendant. Petitioner was not identified as the perpetrator until 1993. No evidence has been presented that would indicate that petitioner could have been identified sooner. Petitioner's appellate counsel was not ineffective for failing to raise on direct appeal assignments of error relating to trial counsel's failure to seek dismissal of the indictment based on the statute of limitations and pre-trial delay. 51 Petitioner does not challenge the district court's reasoning or otherwise demonstrate error in the evaluation of this claim on the merits. B. Claims 1, 3, and 4 52 In claims 1, 3, and 4, Monzo argued that he was denied effective assistance of counsel because his trial attorney: (1) failed to interview witnesses or secure records to support his alibi defense, failed to demand discovery from the government, and did not obtain independent evaluation of the fingerprints but insisted that the FBI review the state's fingerprint analysis (claim 1); (2) permitted Monzo to write a letter to the judge during the preindictment period that was used to discredit his claim to have worked in Groseck's house during 1987 (claim 3); and (3) provided the state with employment and personnel records from Georgia that showed he applied for work after the offenses had been committed (claim 4).6 53 With respect to claims that were adjudicated on the merits in state court, habeas corpus relief is unavailable unless the adjudication: 54 (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 55 (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. 56 28 U.S.C. § 2254(d)(1)-(2). Monzo argues, it seems, that the state court's decision adjudicating claims 1, 3, and 4 involved an unreasonable application of clearly established Supreme Court precedent; namely, the standards set forth in Strickland. There is no question that Strickland qualifies as clearly established federal law under § 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 57 "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. 1495. Without defining "objectively unreasonable," the Court explained that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S.Ct. 1495. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. 58 As the district court observed, the Ohio Court of Appeals rejected these claims on the merits in affirming the denial of Monzo's motion for post-conviction relief. The relevant portions of the state court decision are as follows: 59 Defendant alleges that trial counsel was ineffective for failure to adequately investigate and contact potential alibi witnesses. In order to establish ineffective assistance of trial counsel under the Strickland standard, a general allegation of failure to investigate on the part of the trial counsel is insufficient. Defendant must show that the lack of investigation "actually had an adverse effect on the defense." Strickland, supra, at 693, 104 S.Ct. 2052. The burden was upon defendant at the post-conviction hearing to establish that there was sufficient favorable evidence that his counsel failed to discover through a reasonable investigation, and that there is a reasonable probability that presentation of such favorable evidence would have altered the outcome of the proceedings. At defendant's trial, the defense presented several alibi witnesses, none of whom swayed the jury in the face of the persuasive fingerprint evidence presented by the prosecution. Even if the trial court were to have accepted the conclusory testimony of defendant's mother at the post-conviction hearing, regarding what the now-absent witnesses would have said had they been called by the defense at trial, we cannot find from the record before us that the jury would have been any more likely to reject the fingerprint evidence than it was in the absence of these alibi witnesses. 60 At trial, the prosecution was able to rebut every effort by the defense to explain the presence of defendant's thumbprint on the wallet and fingerprints on the basement door trim. Groseck testified that the wallet was her everyday wallet, which the prosecution properly pointed out would indicate that any print more than a few days old would have probably been obliterated or overlapped by her frequent handling of the wallet. Most telling, Groseck categorically denied having any workmen from Jack Travis' Construction Company to make repairs after the spring of 1986, or paying any of Travis' employees out of her wallet for odd jobs after that date. The testimony of Travis confirmed Groseck's denial. 61 In addition, the state established that the door frame where defendant's fingerprints were found had been painted in June 1987, which excluded any possibility that defendant had left the fingerprints at any time prior to that even if he had returned to do work at the Groseck residence, which Groseck and Travis denied. 62 In this context, it is unlikely that the presentation of further alibi evidence would have impacted the jury's decision, and the second prong of the Strickland test is not met. 63 Defendant also asserts that trial counsel was ineffective in failing to request discovery from the prosecution. However, at the post-conviction hearing, the trial counsel testified that he received substantial information and cooperation from the prosecutor before the indictment and thought further discovery was unnecessary under these circumstances. Furthermore, the attorney explained in the original trial transcript that he had not sought discovery because, under Ohio's reciprocal rule of discovery, he would have been obligated to provide information to the prosecution. Moreover, defendant does not set forth, apart from the issue of inadvertently destroyed evidence which was revealed at trial, precisely what additional information from the prosecution could have furthered his defense at trial. Again, the second prong of the Strickland test is not met. 64 Defendant further asserts that trial counsel was ineffective because he failed to gather evidence regarding purportedly exculpatory credit card slips and tax forms. The credit card slips would have demonstrated that defendant was in Georgia at the time of the crime and had gone shopping with his mother, and the 1986 and 1987 W-2 forms from Travis Construction Company would have demonstrated that defendant was employed by Jack Travis and thus bolstered his story that he had returned to the victim's home several times after the initial remodeling job in 1985. Initially, we note that defense did not introduce any W-2 forms at the post-conviction hearing, although the forms concededly remain available from the IRS. In the absence of the W-2 forms to demonstrate their value to the defense, any assertion in a post-conviction proceeding that the forms would have furthered the defense is a mere reiteration of defendant's original proposition that he worked for Jack Travis beyond 1985, into the 1986 and 1987 periods which he claimed at trial. 65 With respect to the credit card slips, defendant's mother admitted at the post-conviction hearing that she could not remember if defendant signed any of the credit card slips which remained unavailable. In the absence of any evidence that defendant's signature appeared on one of the credit slips dated on or about the day of the crime, the exculpatory value of the credit card slips is dubious and insufficient to support a finding of ineffective assistance of trial counsel in failing to procure them for the original trial. 66 .... 67 Defendant argues further that trial counsel was ineffective for excessively cooperating with the prosecution prior to indictment, which led to the prosecution calling Brenda Harned, administrative manager for PMS Consolidated where defendant briefly worked around the time of the crime, as a rebuttal witness. Harned's testimony ... was damaging to defendant, because it cast some doubt on defendant's actual arrival date in Georgia prior to the employment interview on November 2, 1987, some eight days after the October 24, 1987 rape. As the Supreme Court pointed out in Strickland, we must avoid the "distorting affects of hindsight" and evaluate the tactical decisions made by counsel from counsel's perspective at the time. During the period in question, trial counsel was attempting to avoid indictment and proceeding under the assumption that information provided by defendant, including those facts reasonably relayed to the prosecution in an attempt to avoid indictment, would support defendant's alibi. Similarly, trial counsel cannot be judged ineffective in hindsight for any alleged failure to review the letter sent by defendant to the judge [that explained he had worked in Groseck's house in 1986], which later was used to impeach defendant's testimony at trial regarding his dates of employment by Jack Travis. Defendant has not asserted that trial counsel advised him to include the damaging assertion found in this letter, or withhold facts which would better have supported defendant's explanation for the presence of his fingerprints in the house. Defense counsel was again relying on the accuracy of the facts as presented to him by defendant. Defendant has not established that a "stonewall" attitude on the part of defense counsel prior to indictment would have precluded indictment itself, since the prosecution had made its fingerprint match, or that prosecution interviews of defendant's other alibi witnesses, including his mother who contacted Harned, would not have led to presentation of the damaging evidence. Finally, defense counsel was not responsible for the eventual impeachment of defendant's employment testimony and his mother's testimony by a witness whom it had been led to believe by defendant would be favorable. 68 The district court reviewed the record, articulated the proper standards to be applied, and concluded that the state court's adjudication of these claims did not involve an unreasonable application of Strickland. The district court also noted that 69 although petitioner argues that trial counsel should have located credit card receipts [or] other documents demonstrating his whereabouts on October 24, 1987, no such documents were offered in support of his state post-conviction petition. Similarly, petitioner has failed to identify any specific discovery his counsel would have obtained from the prosecutor had he made a discovery demand. Petitioner himself chose to write the letter to the trial judge explaining his fingerprints at the crime scene by work he did at the victim's house during 1986.... Finally, his trial counsel's decision to give employment records to the prosecutor was a tactical one which was consistent with Monzo's assertion that he was in Georgia at the time of the offense. The fact that the prosecutor was able to use that information to petitioner's detriment does not render the original decision to share the information ineffective assistance of counsel. 70 On appeal, petitioner simply reiterates his claims that he was denied effective assistance of trial counsel by failing to interview alibi witnesses, obtain credit card and tax records, request discovery, prevent his client from writing the letter to the judge, and by providing employment records to the prosecution. After review of the record, we agree with the district court and conclude that petitioner has not shown that the state court's rejection of these ineffective assistance of counsel claims involved an unreasonable application of Strickland. 71 AFFIRMED. Notes: * The Honorable Donald C. Nugent, United States District Judge for the Northern District of Ohio, sitting by designation 1 The state court sentenced Monzo to 7 to 25 years' imprisonment for aggravated burglary, 5 to 15 years for kidnapping, and 8 to 25 years on each count of rape. The sentences on counts 2, 3, and 4 were to be served concurrently with each other and consecutively to count 1, for a combined maximum term of 50 years' imprisonment 2 Petitioner does not argue that our refusal to evaluate the procedurally defaulted claims would result in a manifest miscarriage of justiceMurray, 477 U.S. at 496, 106 S.Ct. 2639 (federal habeas court may grant the writ in the absence of a showing of cause and prejudice when "a constitutional violation has probably resulted in the conviction of one who is actually innocent.") See also Schlup v. Delo, 513 U.S. 298, 314-17, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). 3 This presumption applies even when the later state decision rests on a prohibition against further state review, such as a rule preventing relitigation of statehabeas claims previously raised on direct appeal. Ylst, 501 U.S. at 804 n. 3, 111 S.Ct. 2590. 4 In his reply brief, petitioner seems to assert a different claim of ineffective assistance of counsel to establish cause for the procedural default of theMurnahan claim. He argues that his attorney on direct appeal rendered ineffective assistance of counsel by failing to file a motion to reopen within the 90-day period provided by Rule 26(B). This contention ignores the fact that the procedural bar was applied by the state court only after concluding that the Rule 26(B) motion could have been brought at the time the post-conviction motion was filed by petitioner's third counsel. Nonetheless, because Monzo's habeas petition did not assert the untimeliness of the Rule 26(B) motion as the basis for a claim of ineffective assistance of counsel, such a claim is not properly before us. 5 Petitioner does not contest the district court's further finding that the limitations period ceased running when the prosecution was commenced and, therefore, the charges added through indictment were not brought in violation of the statute of limitationsSee Ohio Rev.Code Ann. § 2901.13(H) ("The period of limitation shall not run during any time a prosecution against the accused based on the same conduct is pending in this state, even though the indictment, information, or process which commenced the prosecution is quashed or the proceedings thereon are set aside or reversed on appeal.") 6 Although petitioner does not contest the inclusion of the issue regarding the fingerprint analysis with those claims which were adjudicated on the merits, it is clear from the Ohio Court of Appeals' decision denying post-conviction relief that this claim was found to be barred byres judicata because it was not raised on direct appeal. This claim was therefore procedurally defaulted along with claims 2, 5, and 6. We assume that petitioner would again rely on his claim of ineffective assistance of appellate counsel as cause to excuse that default, but that claim was defaulted as well. Moreover, the record indicates that the Columbus Police Department's fingerprint examiner matched the prints to Monzo and trial counsel insisted that the analysis be reviewed by the FBI. Petitioner bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Also, a fair assessment of counsel's performance requires that every effort be made to avoid the distorting effects of hindsight. Id. Monzo has not demonstrated that, having insisted that the identification be confirmed, trial counsel's choice that it be performed by the FBI fell below an objective standard of reasonableness. More importantly, petitioner has not shown that the failure to have someone else evaluate the fingerprint evidence resulted in actual prejudice. While the fingerprint evidence was critical to the state's case, it would be sheer speculation to conclude that a different evaluation would have resulted in favorable evidence. Petitioner has not shown that there is a reasonable probability that, but for the alleged errors, the result of the proceeding would have been different. As such, Monzo has not shown that the failure to raise the issue on direct appeal constituted ineffective assistance of appellate counsel.

623 N.W.2d 494 (2001) 2001 SD 38 Michael Lee WILSON, Plaintiff and Appellant, v. Eric G. LEWNO, Defendant, and Dakota Silo Systems, Inc., a/k/a Dakota Silo, Inc., Defendant and Appellee. No. 21198. Supreme Court of South Dakota. Considered on Briefs on March 22, 2000. Decided March 21, 2001. Rehearing Denied May 1, 2001. Renee Christensen of Bonynge & Christensen, Sioux Falls, SD, Attorneys for plaintiff and appellant. Cheryle Wiedmeier Gering of Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, Attorneys for defendant and appellee Dakota Systems. KONENKAMP, Justice. [¶ 1.] Michael Wilson appeals a summary judgment for the defendants in his action for negligent entrustment of a motor vehicle. We reverse and remand.[1] Background [¶ 2.] On April 26, 1997, Wilson and a friend left Sioux Falls to travel to Watertown *495 and visit the friend's mother. Before leaving, Wilson's friend also arranged to meet with an acquaintance of his, Eric Lewno, at Lewno's home in South Shore. Wilson and his friend drove directly to South Shore and arrived at Lewno's residence in the late afternoon or early evening. After awhile, Wilson, his friend, Lewno and Lewno's girlfriend eventually went to town and drank at two different bars in the South Shore community. The foursome left the last bar at approximately ten p.m. Lewno then offered to give Wilson and his friend a ride in a Mustang automobile that he had been doing some bodywork on and that he was driving that night. During the ride, Lewno attempted a sharp turn and flipped the Mustang over in the ditch. The accident allegedly caused serious and permanent bodily injury to Wilson. [¶ 3.] Wilson later learned that the Mustang Lewno drove the night of the accident was owned by Dakota Silo Systems, Inc. (Dakota), Lewno's employer and a corporation owned and operated by Lewno's father. Wilson also learned that Lewno had suffered alcohol problems since his youth and that, several years before the accident, his driver's license had been suspended for a period of twenty-five years. Wilson brought a negligence action against Eric Lewno and an action for negligent entrustment of a motor vehicle against Dakota. Dakota moved for summary judgment. The motion was granted and the order was certified as final pursuant to SDCL 15-6-54(b).[2] Wilson appeals. Genuine Issues of Material Fact on Negligent Entrustment [¶ 4.] Viewing the evidence in a light most favorable to Wilson yields genuine issues of material fact sufficient to defeat summary judgment for Dakota on negligent entrustment of its motor vehicle. See SDCL 15-6-56(c); Sorrels v. Queen of Peace Hosp., 1999 SD 133, ¶ 5, 601 N.W.2d 606, 608. This Court has long recognized the tort of negligent entrustment, first outlining its elements in Bock v. Sellers, 66 S.D. 450, 457, 285 N.W. 437, 440 (1939): It is now generally held that, "An owner who lends his automobile to another, knowing that the latter is [an] incompetent, reckless, or careless driver, is liable for such person's negligence; the owner's liability in such cases is based upon his own negligence in intrusting the automobile to such person. Intrusting the car to a minor child known to be a reckless and incompetent driver ... constitutes an act of negligence for which the owner is liable." 5 AmJur 696. See also Robe v. Ager, 80 S.D. 597, 606, 129 N.W.2d 47, 51 (1964) (owner or person in charge of operation of motor vehicle may be guilty of negligence if he permits an incompetent, inexperienced, and knowingly reckless and accident prone person to drive). [¶ 5.] Bock and its progeny make clear that an essential element to this cause of action is an act of entrustment or consent to use the subject vehicle. See 7A AmJur2d Automobiles and Highway Traffic § 643 (1980) (liability for negligence of incompetent driver to whom motor vehicle is entrusted arises from act of entrustment with permission to operate it). See also Jackson v. Searcy, 628 So.2d 887, 889 (Ala.Civ.App.1993) (essential ingredients *496 of cause of action for negligent entrustment include an entrustment of the vehicle). Dakota argues that there is no showing of any express act of entrustment or consent in the present record. Entrustment or consent may be implied, however. See American Family Ins. Group v. Howe, 584 F.Supp. 369, 371 (D.S.D.1984). To establish implied entrustment or consent, there must be a "showing of [a] course of conduct or practice known to the owner and acquiesced in by him that would lead to an implication of permission for a particular venture." Western Casualty & Surety Co. v. Anderson, 273 N.W.2d 203, 205 (S.D.1979). Or as amplified in Howe, 584 F.Supp. at 372: Implied permission arises upon consideration of such factors as the past and present conduct of the insured, [the] relationship between the driver and the insured, and [the] usage and practice of the parties over an extended period of time prior to the use in question. In addition, some courts have stated that the usage and practice of the parties should be such that would indicate to a reasonable mind that the driver had the right to assume permission under the particular circumstances. (citations omitted). [¶ 6.] Here, deposition testimony establishes that Lewno's father owned and operated Dakota and was responsible for its business and management affairs. While the father maintained that he prohibited Lewno from driving any corporate vehicles, there is substantial testimony in the record that Lewno frequently did so nonetheless. Lewno's girlfriend testified that she dated Lewno for approximately a year before the accident, that she was with him two or three times a month, and that he frequently drove her around in the Mustang while they were together. She further testified that she thought Lewno owned the Mustang because "he pretty much drove [it] everywhere" and that for a long period of time she was not even aware his driver's license had been revoked. [¶ 7.] There is also testimony that Lewno was allowed to drive other corporate vehicles. Lewno's girlfriend testified that he not only drove the Mustang, but other corporate vehicles before the accident to such destinations as Dakota's office and the home of Lewno's parents. Lewno himself admitted that he occasionally drove service trucks after obtaining permission from his father or his older brother and that his brother was usually with him when he drove. [¶ 8.] In addition, the depositions establish that, from December of 1996 to the time of the accident, Lewno's father entrusted possession of the Mustang to Lewno to complete some bodywork on the vehicle. During this time, the car was located in a garage that Lewno rented, and Lewno testified that after the vehicle was fixed, his father even agreed to sell it to him. [¶ 9.] In view of the above testimony and, particularly, the evidence that the father entrusted the Mustang to Lewno with the intent to sell it to him, the credibility of the father's claim that he did not intend for Lewno to actually drive the vehicle should be tested in a jury trial. Genuine issues of material fact exist on whether Lewno had implied permission to use the Mustang on the night of the accident. See American Family Ins. Group, 584 F.Supp. at 372 (whether implied permission to use vehicle existed at time of accident presents question of fact). Reversed and remanded. [¶ 11.] MILLER, C.J., and SABERS and GILBERTSON, JJ., concur. AMUNDSON, J., dissents. AMUNDSON, Justice (dissenting). [¶ 13.] For the reasons set forth in my writing in Estate of Trobaugh, 2001 SD 37, 623 N.W.2d 497, I respectfully dissent. NOTES [1] Because of the similarity of issues in this case and Estate of Trobaugh v. Farmers Insurance Exchange et al., 2001 SD 37, 623 N.W.2d 497, release of this decision coincides with the release of the decision in Trobaugh. [2] SDCL 15-6-54(b) provides: When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

496 A.2d 623 (1985) STATE of Maine v. Maurice E. MURPHY. Supreme Judicial Court of Maine. Argued May 9, 1985. Decided July 30, 1985. *625 Charles K. Leadbetter (orally), Wayne S. Moss, William R. Stokes, Eric E. Wright, Thomas L. Goodwin, Asst. Attys. Gen., Augusta, for plaintiff. Fenton, Chapman, Fenton, Smith & Kane, Nathaniel R. Fenton (orally), Bar Harbor, Douglas B. Chapman, Gross, Minsky, Mogul & Singal, P.A., by: George Z. Singal, Bangor, for defendant. Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and SCOLNIK, JJ. McKUSICK, Chief Justice. Defendant Maurice Murphy appeals his conviction in Superior Court (Hancock County) of murder and Class A robbery committed upon Maxine Eaton, late of Northeast Harbor, on June 11, 1982. After his indictment on those charges, defendant pleaded both not guilty and not guilty by reason of insanity, and elected under 17-A M.R.S.A. § 40 (1983) to have a bifurcated trial. In the first stage of the trial, a jury found that the State had proved beyond a reasonable doubt all elements of the substantive offenses of murder and robbery. In the second stage, which was tried jury-waived, the trial justice found that defendant had failed to prove his insanity defense by a preponderance of the evidence. We reject defendant's initial contentions on appeal that his constitutional right to a speedy trial was violated and that the evidence before the jury was insufficient to support its guilty verdict. We agree with defendant, however, that the trial court in the first stage of the bifurcated trial erroneously excluded the testimony of two psychologists whom defendant presented to testify regarding his capacity to have the required culpable state of mind at the time of the murder and robbery. We vacate his convictions. We also address the merits of other issues defendant raises on appeal that are likely to come up on retrial. I. The Facts From the evidence before it during the first "guilt or innocence" stage of the trial, the jury could reasonably have found the following facts. In August of 1981, defendant Maurice Murphy's adult daughter Marsha came to stay with her parents on Maple Street in Northeast Harbor. As a State's witness, Marsha Murphy acknowledged at trial that her father had always *626 been a heavy drinker, but it seemed to her that in August 1981 he was drinking even more than usual. He was "sickly and crazy," so that it was "hard to talk with him, hard for him to keep a thought." Defendant would usually stay up most of the night and sleep most of the morning. His breakfast was typically a can of beer. His only food would be sandwiches, which he would eat every two or three days. He always kept the house locked up and the curtains pinned shut, because he was convinced that there were snipers waiting outside to get him. He weighed only 98 pounds, and spent most of his days watching television. He felt that the Russians and especially the Chinese "were coming to get him." Most of the time he kept a .38 caliber revolver near him for protection. After staying with her parents for about a month, Marsha Murphy moved next door. During the fall and winter of 1981, defendant's condition became worse. Although he associated with his family, he would never wash, change his clothes, or even take them off, for months at a time. His bed and the chair he usually occupied in the darkened living room were always soaked with urine. By the spring of 1982, defendant's condition had so deteriorated that he entered the hospital. There, his mental condition was worse than ever: he hardly knew where he was, and he felt sure that "they" were switching around the pictures on the walls surreptitiously. He thought he was a prisoner of war. His condition had not improved when he was released from the hospital a week later. His speech at that time was limited to disconnected, "crazy little statements." He would sit around all day in his recliner in the living room, with the curtains pinned shut "against the snipers," sipping beer, in a sort of stupor. He seldom left the house. During Friday evening, June 11, 1982, defendant, as he later told his daughter, did leave his house, taking with him his .38 caliber pistol. He walked two doors down Maple Street and entered the home where 56-year-old Maxine Eaton lived alone. He asked Miss Eaton to lend him some money, on the pretext that his granddaughter needed an operation. She got out her large pocketbook and subsequently began to cry, for no reason that was apparent at trial. Defendant, believing her to be desperately unhappy, took it upon himself to "play God." On Sunday, June 13, Maxine Eaton's body was found in the hallway of her house, shot once through the heart at close range.[1] Police investigators retrieved the fatal bullet, which was Speer brand .38 caliber ammunition, from a doorframe in her house. Defendant without ever being asked to do so voluntarily turned his pistol over to the police. A forensic ballistics examiner testified, on the basis of his laboratory testing conducted with that gun and the bullet found in the victim's home, that the projectile could only have been fired from defendant's gun. A box of Speer brand "hollowpoint"-type bullets[2] was found in defendant's house. It could not be ascertained whether the projectile fired in the victim's house was a hollowpoint bullet. A thorough search of Miss Eaton's house failed to turn up the large pocketbook she invariably carried. On June 18, police observed defendant sitting in his car in a parking lot by the Northeast Harbor waterfront, with a pile of papers under the car on the passenger side. When defendant moved his car to another space in the lot some 20 feet away, a police officer in plain-clothes walked over and collected those papers. They turned out to include bank books and a checkbook belonging to Maxine Eaton, as well as various other personal papers, some of which also bore her name. *627 On June 19, more of the victim's papers were recovered, partially burned, from an old dump where defendant had been seen a few days earlier. Finally, still more of the victim's papers were found intermingled with defendant's possessions in a paper bag next to the chair in his living room where defendant was sitting when he was arrested on June 18, 1982. At arraignment defendant entered pleas of not guilty and not guilty by reason of insanity to the charges that he had murdered and robbed Maxine Eaton. He was then required by 17-A M.R.S.A. § 40 to elect between a unitary trial, at which the issues of guilt and insanity would be tried together, and a two-stage proceeding, in the first stage of which only his guilt or innocence would be determined, and in the second stage of which, if he was found guilty in the first stage, his criminal responsibility or lack thereof due to insanity would be adjudged. Defendant exercised his right under the statute not to inform the jury of the bifurcated nature of the proceedings. In the first stage of the trial, before the jury, the State had the burden of proving all elements of the crimes of murder and robbery beyond a reasonable doubt. The jury found that the State successfully carried that burden and convicted defendant of both crimes. Defendant then elected to have the insanity issue tried in the second stage by the court without a jury as provided in 17-A M.R.S.A. § 40(3). Defendant in that second stage had the burden of proving by a preponderance of the evidence his lack of criminal responsibility because of a mental disease or defect. 17-A M.R.S.A. §§ 39(1), 40(4) (1983). The trial justice found that he had not met that standard of proof, and so held him criminally responsible for his acts in murdering and robbing Maxine Eaton. II. Defendant's Right to a Speedy Trial Defendant at the outset contends that pretrial delays caused by the State deprived him of his right to a speedy trial under Me. Const. art. I, § 6 and U.S. Const. amend. VI, XIV, and that the charges against him must therefore be dismissed with prejudice. See Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973). We reject defendant's contention. Whether an accused has been denied his right to a speedy trial can be determined only through the use of a delicate balancing test that takes into account all of the circumstances of the case at hand. See State v. Cadman, 476 A.2d 1148 (Me.1984). In Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2191-94, 33 L.Ed.2d 101 (1972), the Supreme Court identified four factors to be considered in evaluating an alleged denial of the right to a speedy trial: the length of the delay, the reasons for the delay, the defendant's assertion of his right, and prejudice to the defendant arising out of the delay. In a number of cases we have used the balancing test of Barker v. Wingo under both our state and federal constitutions. See, e.g., State v. Smith, 400 A.2d 749 (Me. 1979). A. Length of the Delay We have held that "[t]he Barker analysis ... need be undertaken only when the length of delay is so presumptively prejudicial as to warrant consideration of the three remaining factors." State v. Dudley, 433 A.2d 711, 713 (Me.1981). In the case at bar, a total period of 25 months and 3 weeks expired between defendant's arrest and the commencement of his trial. While that length of time is not unusually egregious, see State v. Smith, 400 A.2d at 752 (25-month delay), and cases cited therein, here, as in Smith, we find that it does generate a presumption of sufficient prejudice to necessitate the Barker analysis. However, a period of 25 months' delay "is not so inordinate as to require a per se finding of a denial of a speedy trial." Id. at 753. *628 B. Reasons for the Delay Of the 25-plus months between defendant's arrest on June 18, 1982, and the commencement of his trial on August 9, 1984, 5½ months resulted from defendant's motions and count against his claim of a denial of the right to a speedy trial. Id. Three months of delay are attributable to the State's difficulties in scheduling, at various times, hearings in the case. A further period of 8½ months immediately preceding trial, during which defendant does not contend that inadequate progress was made in bringing him to trial, was spent in resolving multifarious matters, including a considerable number of motions filed by defendant. The major controversy on the speedy trial question involves the question of who, the State or defendant, was responsible for a delay of some 8½ months following the entry of an order granting a defense motion for an independent psychological evaluation of defendant to determine his competency to be arraigned, and requiring the State to provide to the defense psychologists all of its medical records relative to Murphy's mental condition. Following that order, some examination of defendant by his own psychologist took place within about two months, but neither the court nor the State was made aware of it for another 6½ months. During that time, the defense was apparently waiting for compliance by the State with the court order requiring disclosure of its medical records so that the defense evaluation could be completed. The defense took no steps during that period to secure compliance by the State with the court order. It never approached Bangor Mental Health Institute, where the records were held, about releasing them. Finally, over eight months after the order for a mental examination of defendant, the defense filed a motion to dismiss the case for denial of the right to a speedy trial. Between the date that motion was filed and the day set for its hearing, defendant received all the State's medical records pertaining to him. The justice who heard the motion found that the delay was attributable to the failure of both the State and defendant to take reasonable steps to ensure that defendant's records were provided to him. We cannot say that that finding was clearly erroneous. See Harmon v. Emerson, 425 A.2d 978, 981 (Me.1981). In looking at the various reasons for the delay that occurred in this case, we note that there is a complete absence of any of the undesirable motivations for delay toward which the speedy trial guarantee is especially directed. See Barker v. Wingo, 407 U.S. at 531 & n. 32, 92 S.Ct. at 2192 & n. 32; State v. Smith, 400 A.2d at 753. When, as here, the reasons for delay in prosecuting a criminal matter are innocent of any invidious intention to deprive a defendant of his liberty unfairly, the delay will weigh less heavily in favor of a claim of denial of the right to a speedy trial. See Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192. C. Defendant's Assertion of his Right The Superior Court justice who heard defendant's motion to dismiss noted that defendant utterly failed to assert his right to a speedy trial at any time prior to his filing of that motion on June 28, 1983, over a year after his arrest. Even then, defendant requested the court not to hear his motion until "after September 5." It is unlikely that the delay to which defendant objects would in large part have occurred, had he been more assertive of his right of discovery from the State. While it is true that defendant has no obligation to bring himself to trial, his failure to assert his right to a speedy trial at any time prior to his motion to dismiss makes it less credible that the delay was undue or that defendant suffered any prejudice therefrom. Id. at 531-32, 92 S.Ct. at 2192-93. D. Prejudice to Defendant Perhaps most important in the present case is the absence of any showing of prejudice to defendant. No defense evidence *629 was unavailable at trial due to the lapse of time since the murder-robbery. Defendant's own mental condition has apparently improved in the intervening time, as a result of the extensive medical attention he has received. The delay involved in his case may thus have worked to his advantage, by allowing him to be more alert and better able to participate in his own defense than he otherwise might have been. Our analysis of the four Barker v. Wingo factors in the present case leads us to the firm conviction that defendant's right to a speedy trial has not been violated. The only factor that would tend to indicate the contrary is the bare length of the delay, which in this case is not so long that it alone entitles defendant to any relief. While there was obviously some neglect of the case by the prosecutor's office, that neglect was not of constitutional dimension, particularly considering defendant's concurrent inattention to the case. We find, in sum, nothing in the present set of circumstances that would entitle defendant to the drastic remedy of dismissal of the charges against him. Defendant also argues that the procedural history of his prosecution supports three additional, but related, grounds for dismissal: unnecessary delay under M.R.Crim.P. 48(b); denial of constitutional due process; and delay by the State in providing discovery under M.R.Crim.P. 16. We reject those arguments. Criminal Rule 48(b) vests the decision whether to dismiss for unnecessary delay in bringing a defendant to trial, along with whether such a dismissal is to be with prejudice, in the sound discretion of the Superior Court justice hearing the motion. See State v. Brann, 292 A.2d 173, 176-77 (Me.1972); cf. State v. Wells, 443 A.2d 60, 64 (Me.1982) (M.D.C.Crim.R. 48(b)). The hearing justice in the case at bar refused to dismiss on that ground, and we are not shown anything to prove that he exceeded his allowable discretion by that decision. Exactly the same reasoning leads us to reject defendant's argument that he was entitled to a dismissal with prejudice under M.R. Crim.P. 16(d), as a sanction against the State for its delay in complying with a discovery order. See State v. Davis, 483 A.2d 740, 742 (Me.1984) (sanction for discovery violation committed to sound discretion of trial judge). Nor are we shown anything in the procedural history of this case that unfairly prejudiced defendant and thus denied him his due process rights. III. Sufficiency of the Evidence before the Jury Aside from the trial errors that defendant contends occurred in the course of the first stage of the Superior Court trial, which if established would require at most a new trial, he asserts that in some particulars the evidence before the jury was legally insufficient to support his conviction. He therefore asks to be acquitted. See State v. S. * * * G. * * *, 438 A.2d 256, 258 (Me.1981). Our review of the record, however, shows ample evidence to sustain the jury's finding of guilt. The two aspects of the State's proof that defendant challenges as insufficient are the evidence of his state of mind at the time of the murder and robbery, and that of the value of the stolen property. For each of those two elements of the State's proof, we make the inquiry whether, viewing the evidence in the light most favorable to the prosecution, any trier of fact rationally could find that element of the offense beyond a reasonable doubt. State v. Lovejoy, 493 A.2d 1035, 1037 (Me.1985). The State's evidence relevant to defendant's intent on the night of the crimes is as follows. A friend of defendant's family testified at trial that she and his daughter Marsha visited him after his arrest. He confessed to his daughter at that time that he thought that Maxine Eaton was so terribly unhappy that he had "just played God." The fact that the victim was shot at very close range, and the further fact that the bullet passed directly through her heart, furnish an additional strong inference that the murder was intentional. *630 Other evidence in the case, including the theft of the victim's pocketbook and the attempted destruction of some of her personal papers at an old dump, is also suggestive of purposeful activity, particularly with regard to the robbery, and serves to corroborate defendant's admission that he "played God." The entire evidence was sufficient to justify the jury's finding beyond a reasonable doubt that defendant intended to kill and rob Maxine Eaton. Similarly, there was sufficient evidence to support a finding of the other element of the robbery charge that defendant argues was missing from the State's case; namely, proof that the property taken had some value. For the theft element of robbery as defined in 17-A M.R.S.A. § 651(1)(D) (1983), the accused must have exercised unauthorized control over "property," which is defined as "anything of value." Id., §§ 353(1), 352(1). Suffice it here to note that Miss Eaton's savings account passbooks, found in a parking lot under defendant's car with him sitting in it, fall within the definition of "anything of value" set forth in section 352(1)(D), as expressly including "[w]ritten instruments... representing or embodying rights concerning... personal property...." IV. Exclusion of Expert Testimony of State of Mind We turn now to the exclusion of certain evidence proffered by the defense in the first stage of the bifurcated trial. That evidence, in the form of testimony by two psychologists, sought to show that because of an abnormal condition of his mind on the night and in the circumstances of the alleged crimes, defendant was unable to form, or have, the culpable intent or knowledge requisite for conviction of either crime. Defense counsel made an offer of proof of the psychologists' testimony, following the procedure we prescribed for that purpose in State v. Burnham, 406 A.2d 889, 895 (Me.1979). The sort of evidence sought to be introduced by the defense in its offer of proof is prone to create difficulties at trial because of the somewhat subtle and elusive distinction, in practice, between evidence regarding a defendant's mental state that is admissible in the first "guilt or innocence" stage of a bifurcated trial, and similar evidence that must be held in reserve for the second "insanity" stage. In drawing that distinction, it is important to bear in mind the difference between evidence of an abnormal state of mind introduced under 17-A M.R.S.A. § 38 (1983), for the purpose of raising a doubt about a defendant's culpable state of mind,[3] and evidence of a mental disease or defect introduced under 17-A M.R.S.A. § 39 (1983), for the purpose of showing a lack of criminal responsibility.[4] Although the evidence used for those two purposes may overlap,[5] it is clear that only evidence relevant to the question of guilt or innocence is appropriate in the first stage of a *631 bifurcated trial, and that evidence relevant alone to the insanity defense cannot be introduced until the second stage. The critical factor in determining whether a defendant's proof may be admitted in the first stage of his trial is thus the relevance of the evidence to the issue framed in section 38, regardless of the relevance of that evidence on the issue framed in section 39. Our inquiry in the case at bar, where admissibility under section 38 is at issue, is thus limited to the question whether the proffered testimony of two psychologists "would tend to generate a reasonable doubt as to [defendant's culpable] state of mind." State v. Mishne, 427 A.2d 450, 456 (Me.1981). Otherwise stated, the proffered testimony, to be admissible, must tend to negate the conclusion that defendant had a culpable state of mind. See State v. Burnham, 406 A.2d at 896. If the evidence offered by defendant did not tend to negate the mental element of the crimes charged, it was properly excluded by the presiding justice. Conversely, if it did tend to create doubt on the question of defendant's culpable mental state on the evening of June 11, 1982, then its exclusion was error. Analysis of the proffered testimony reveals that it did indeed have a tendency to negate defendant's intent or knowledge and should not have been excluded. The defense's offer of proof elicited from two psychologists, Dr. Dannel H. Starbird and Dr. Elizabeth A. McMahon, testimony regarding defendant's mental condition in June of 1982. Starbird gave his opinion that defendant was living in a psychotic state on June 11, 1982, and that the subject matter central to his psychosis involved violence and the use of guns. Starbird clearly stated that he did not believe that defendant could have formed the intent to go to the victim's house, shoot her at close range, take her purse, and attempt several days later to destroy the contents of the purse, because those actions would be too closely related to the central themes of defendant's psychosis for him to "know what he was doing." Starbird testified further that in activity central to defendant's psychosis, defendant would not be aware of the implications or the results of his behavior. McMahon was also of the opinion that defendant was psychotic and would have been reacting in a paranoid manner in any confrontation, especially with a woman, and particularly so if the woman was unfamiliar to him, as Miss Eaton was. She gave her opinion that there was a very high probability that defendant would not have been able to form a conscious intention in such a situation when he was armed with a loaded gun. She also gave her opinion that he would not be aware of the fatal consequences of his conduct in those circumstances. Those two opinions directly address defendant's ability to murder and rob Miss Eaton "intentionally" or "knowingly," as those culpable mental states are defined in 17-A M.R.S.A. § 35(1) & (2) (1983). Furthermore, the psychologists' testimony was of a nature and in a form to meet the requirements for admissibility set forth in State v. Flick, 425 A.2d 167, 170-71 (Me. 1981).[6] *632 The proposed testimony of the two psychologists in this case stands in marked contrast to evidence we have previously held was properly excluded, as not tending to raise a reasonable doubt as to culpable mental state, in Mishne, 427 A.2d at 455, and in State v. Sommer, 409 A.2d 666, 669 (Me.1979). In Sommer, the evidence of an abnormal condition of mind, which came exclusively from lay witnesses, was not specifically connected to the defendant's ability to act with intent or knowledge in the circumstances of the crime. Id. at 669-70. The evidence sought to be introduced in that case did not show any relationship between the defendant's general mental condition and his ability to function intentionally or knowingly in specific criminal activity. In Mishne, psychiatric and other expert medical testimony was proffered to show that the defendant there at the time of the crime was in withdrawal from drug addiction, and as a result suffered from a compulsion to obtain drugs. We held that "evidence of a compelling need tends to confirm the conclusion that defendant acted with awareness [in stealing drugs] and with the conscious object of fulfilling that need." Mishne, 427 A.2d at 455 (emphasis added). Thus in that case the defense evidence did not tend to negate intent or knowledge as required by Burnham; rather, it had the contrary tendency and so it was not admissible under section 38. In the case at bar, on the other hand, the defense produced two experts, both of whom had administered a variety of personality and intelligence tests to defendant Murphy and had extensively interviewed him and his family. Having formed expert opinions that defendant was suffering from a lack of contact with reality, those experts took the essential further step of evaluating the effect of defendant's psychotic state on his ability to have the culpable intent or knowledge requisite to convict him for murder and robbery in this case. Both psychologists stated their opinion that, because of his psychosis and the specific circumstances of the crime, it was unlikely that defendant would have been able to intend or know the consequences of his acts of shooting and robbing Miss Eaton. Those psychologists linked defendant's bizarre behavior to his likely state of mind at the time of the crimes, and their expert opinions tended to show that that state of mind was not culpable. It was the absence of any such linkup in Sommer, and the failure of that link to negate a culpable mental state in Mishne, that made inadmissible the evidence of abnormal mental condition proffered in the first stages of those trials. The psychologists' testimony was directly relevant to showing defendant lacked a culpable state of mind at the time of the murder-robbery. It is not for us to decide how much weight or credence is properly to be accorded that testimony. That determination falls within the exclusive factfinding province of the jury. See State v. Lovejoy, 493 A.2d at 1037. Nor is it for us to decide whether, in light of all the other evidence that defendant had the requisite intent or knowledge, the expert opinions of Drs. Starbird and McMahon would in fact raise a reasonable doubt in a factfinder's mind as to that element of the offense. That determination also is up to the jury. Id. at 1037. Since the psychologists' opinions tended to refute the existence of the culpable mental state that the State was required to prove in the "guilt or innocence" stage of the trial, the jury was entitled to hear that evidence. Considering that the question of culpable intent or knowledge was the most hotly contested issue at trial, we cannot say that it was highly probable that the exclusion of the psychologists' opinion testimony did not affect the jury's verdict. We conclude therefore that the error was not harmless. See State v. True, 438 A.2d 460, 467 (Me. 1981). V. Other Alleged Trial Errors On the usual criminal appeal where a new trial is necessary, we forego examination *633 of the appellant's other claims of error and simply remand to the trial court. Here, however, several of the issues raised on the present appeal are almost certain to recur upon retrial, and thus it promotes judicial economy for us to address them now, to afford guidance to counsel and to the court on retrial. See Kimball v. State, 490 A.2d 653, 659 (Me.1985). A. Miranda Question. We first address the admissibility in evidence of a statement defendant made, shortly after his arrest, to Detective Shuman of the State Police. Defendant contends that his statement was taken in violation of his right to have an attorney present during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). That issue was raised by motion before trial and was disposed of at a suppression hearing on May 3, 1984. Detective Shuman testified at that hearing on direct examination regarding the right-to-counsel portion of the Miranda warnings: A. ... I said, you have an absolute right to a lawyer before questioning and the presence of a lawyer with you during questioning. Do you understand that? I got the answer from Mr. Murphy that he understood and I was insulting him and I did not have to ask him those questions. He understood he could have a lawyer if he wanted one and if he couldn't afford one he did not have to answer any questions without one. I went on, if you cannot afford a lawyer one will be furnished free for you before any questioning if you desire. I asked if he understood that and his answer was that he understood that if he could not afford one one would be obtained for him. On the back of the Miranda I asked the two waiver questions. If he understood each of the rights I gave him and he said yes and I said having these rights in mind do you wish to talk to us now without a lawyer present and he said, sure, he would talk to us. No problem. Q. Then you proceeded to conduct an interview with him? A. Yes, I did. At the probable cause hearing some two years earlier, the detective had also testified: I continued on that, "If you cannot afford a lawyer, one will be furnished to you free before any questioning, if you desire." I asked him if he understood that. He—his response was, "Yes." He said, "I don't need a court-appointed lawyer; I'm gonna get one." I said, "Do you understand what that last line meant?" And he said, "Yes; that if I can't afford one, one will be furnished." At the suppression hearing, Shuman affirmed the accuracy of his earlier testimony. The suppression justice found that defendant's statement was taken during a custodial interrogation following defendant's voluntary waiver of his right to have an attorney present. That determination must be allowed to stand if there is evidence in the record that rationally supports it. State v. Schueler, 488 A.2d 481, 484 (Me.1985). The preceding quotations from the record make clear that defendant understood his right to an attorney and agreed to speak to the police without his lawyer being present. His comment that he was "gonna get" his own attorney was given in the context of the question whether he needed to have counsel appointed for him. At no time did he ever express a present desire to have the assistance of counsel. The suppression justice was correct in refusing to suppress defendant's post-arrest statement. B. Validity of Search Warrant The next issue we address is defendant's contention that the fruits of a search made of his house were improperly admitted at trial because the warrant under which the search was conducted was invalid. The reason he assigns for the warrant's invalidity *634 is that the complaint justice who issued the warrant was appointed to that office in violation of Me. Const. art. III, § 2, and art. VI, § 5, and that he therefore had no authority to issue the search warrant. In January 1979, the magistrate in question had taken office as Judge of Probate in Hancock County. In March of that same year he was also appointed a complaint justice by the Chief Judge of the District Court. He held both offices at the time he issued the warrant to search defendant's house. Defendant argues that the appointment of a sitting judge of probate to the office of complaint justice violated the prohibition in Me. Const. art. VI, § 5 against a judge's holding another office. We have no occasion to reach the question whether a judge of probate may be validly appointed a complaint justice. The capacity in which the magistrate acted when he issued the warrant in this case was that of justice of the peace,[7] a post he also held, and not that of complaint justice. 4 M.R.S.A. § 161 (1979) provides: The Chief Judge of the District Court may authorize any attorney-at-law, who is duly licensed to practice law in the State of Maine who is also a justice of the peace, to receive complaints and ... to issue search warrants.... Any complaint so received or process so issued shall be in his capacity as a justice of the peace. (Emphasis added) The prohibition in the Maine Constitution against a judge's holding another office specifically exempts from that restriction the office of justice of the peace: No Justice of the Supreme Judicial Court or any other court shall hold office under the United States or any other state, nor under this State, except as justice of the peace or as member of the Judicial Council. Me. Const. art. VI, § 5 (emphasis added). It therefore matters not, for the validity of the search warrant in the case at bar, whether the issuing justice of the peace was validly appointed a complaint justice. No defect in his appointment as a justice of the peace appears of record, and none is even suggested by defense counsel. We will therefore assume that his appointment to that office was both regular and valid. The sole attack made by the defense upon the validity of the search warrant is thus without foundation. C. Admission of Papers Found at the "Merchant's Pit" Dump. At trial, the presiding justice admitted in evidence certain of the victim's personal papers, and other items such as might be found in a woman's handbag, that had been recovered in a partially burned condition from a dump known as "Merchant's Pit," at a remote location in the woods outside Northeast Harbor. Defendant asserts that their admission on the question of his culpability of the murder-robbery was error,[8] first, because the evidence did not connect those exhibits in any way to him. The record does not support that contention. The police found the exhibits at the dump as the result of the report by a 15-year-old boy who had seen defendant at that remote location. Defendant's second argument, that the Merchant's Pit exhibits even if relevant should have been excluded under Evidence Rule 403, is equally unpersuasive. We fail to see how their admission could have resulted in any unfair prejudice to defendant, let alone unfair prejudice that substantially outweighs their obvious probative value. The exhibits were not such as might inflame the minds *635 of the jurors, or otherwise distract them from their duty. There was no error in admitting the Merchant's Pit exhibits. D. Testimony Regarding Hollowpoint Bullets. The last question that we consider has to do with the reason why defendant voluntarily gave his gun to the police a few days after the murder, without ever being asked to do so. The State at trial sought to prove a motive for the surrender of defendant's weapon that would be inculpatory rather than exculpatory. It produced testimony that defendant had repeatedly told his daughter's boyfriend that he believed that hollowpoint bullets could not be traced to any particular gun. The State also provided an expert witness who testified that the spent bullet found in the victim's house must have been fired from defendant's gun and, although it was so damaged that he could not tell if it was a hollowpoint bullet, it was perfectly consistent in weight and configuration with the hollowpoint bullets found in defendant's house. Defendant argues that the testimony of both the boyfriend and the expert should have been excluded at trial as irrelevant. He says that hollowpoint bullets cannot be connected either to himself or to the murder, and that therefore any testimony concerning them or his belief about them is not relevant to any issue in the case. Again, the record does not support defendant's contention. A State Police detective discovered a partial box of .38 caliber bullets in defendant's home. He thought that there were nine bullets in the box. He gave the box to the State's ballistics expert, who produced it at trial and identified the bullets as being of the hollowpoint variety. It was thus established that defendant had hollowpoint bullets in his house. The fact that at trial the box turned out to contain ten rather than nine bullets shows merely that someone made a mistake in counting, and does not affect the fact that the bullets that were there were found in defendant's house and fitted his gun. The ballistics expert's testimony was relevant to the question whether the bullet that killed Maxine Eaton was a hollowpoint bullet that had come from the box in defendant's house. The hollowpoint bullets were thus connected both to defendant and to the scene of the crime. The Superior Court did not err in admitting the challenged testimony relating to them. The entry is: Judgment vacated. Remanded for further proceedings consistent with the opinion herein. All concurring. NOTES [1] Expert testimony established that the shot was fired at least 6 to 8 inches, but no more than 2 to 3 feet, from the victim's chest. [2] Hollowpoint bullets are so designated because some of the lead is drilled out of the projectile along its longitudinal axis. [3] 17-A M.R.S.A. § 38 provides: Evidence of an abnormal condition of the mind may raise a reasonable doubt as to the existence of a required culpable state of mind. [4] 17-A M.R.S.A. § 39 provides: 1. A defendant is not criminally responsible if, at the time of the criminal conduct, as a result of mental disease or defect, he either lacked substantial capacity to conform his conduct to the requirements of the law, or lacked substantial capacity to appreciate the wrongfulness of his conduct. The defendant shall have the burden of proving, by a preponderance of the evidence, that he lacks criminal responsibility as described in this subsection. 2. As used in this section, "mental disease or defect" means any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs the processes and capacity of a person to control his actions. An abnormality manifested only by repeated criminal conduct or excessive use of alcohol, drugs or similar substances, in and of itself, does not constitute a mental disease or defect. [5] Neither is the evidence usable for the two purposes necessarily the same. It is possible to intend the consequences of an act without appreciating the wrongfulness of those consequences. See State v. Mishne, 427 A.2d 450, 454 (Me.1981). As our Criminal Code recognizes, however, some evidence may be relevant to both determinations and so is admissible in both parts of the bifurcated trial. See 17-A M.R.S.A. § 40(4). [6] In State v. Flick, 425 A.2d 167, 170-71 (Me. 1981), we noted that a medical professional is not by that status made competent to testify to legal conclusions, and that "opinions which are arguably within the expert's specialized knowledge, but which are so conclusory, or so framed in terms of the legal conclusions to be drawn, that they will not `assist the trier of fact' (M.R. Evid. 702) or will pose a danger of confusing the jury which outweighs their probative value (M.R.Evid. 403) or if there is an insufficient factual basis to support the conclusions (M.R. Evid. 705(b))," may be excluded. Id. at 171. The psychologists' testimony on voir dire in the case at bar avoided those pitfalls: it was firmly based on extensive observation and testing of defendant; it posed little danger of confusing a jury; it was given in ordinary layman's terms rather than solely in the words of the statute; and the reasoning underlying the opinions was fully explored. [7] In Maine justices of the peace traditionally have been empowered to issue search warrants. See, e.g., P.L.1821, ch. 148, § 16; ch. 149, § 6. [8] The defense sought at trial a limiting instruction that the exhibits could be used only to establish that a murder and robbery had taken place and could not be used as evidence that it was defendant who committed the crimes. On appeal defendant puts in issue only the necessity for such a limiting instruction. It therefore suffices, for the present purposes of aiding in the retrial, that we address the relevance of the exhibits to defendant's guilt.

144 F.2d 653 (1944) KAY v. GENERAL CABLE CORPORATION. No. 8629. Circuit Court of Appeals, Third Circuit. Argued June 22, 1944. Decided September 12, 1944. Henry K. Golenbock, of Perth Amboy, N. J., for appellant. Ben Herzberg, of New York City (Pitney, Hardin & Ward, of Newark, N. J., on the brief), for appellee. *654 Before BRATTON and McLAUGHLIN, Circuit Judges, and KIRKPATRICK, District Judge. KIRKPATRICK, District Judge. The Selective Training and Service Act of 1940 as amended by the Service Extension Act of 1941, 50 U.S.C.A.Appendix § 301 et seq., provides that any person who, upon entering the military or naval service of the United States, has left "a position, other than a temporary position, in the employ of any employer" shall, in the case of a private employer, be restored to such position or to a position of like seniority status and pay, "unless the employer's circumstances have so changed as to make it impossible or unreasonable to do so." Section 308(b) (B). The plaintiff, a company doctor (officially, "medical director") with the defendant corporation, left his position to enter the Army, served six months and was honorably discharged. The defendant refused to reinstate him and he applied to the District Court for relief under Sec. 8(e) of the Act. That court dismissed his petition on the ground that he did not hold a position "in the employ" of the defendant, and this appeal followed. We are of the opinion that the plaintiff is eligible for the protection of the Act. The essential facts relating to his position are as follows: On July 17, 1931, the plaintiff entered the service of the defendant on the basis of a full working week at its plant. Five or six months later this was reduced to three hours a day, except Sunday and half of Saturday, although he remained on call by the Company at any hour of the day or night and was expected to visit injured employees at their homes or at the hospital. His duties were to take care of all injured employees, giving first aid and all necessary medical care, to make pre-employment physical examinations and to conduct occasional routine physical examinations of all employees. Outside the plant, he maintained his own office where he received his private patients but where he was required also to receive and treat such employees as the Company sent him. At the plant he had a waiting room, dispensary, treatment room, rest room, drug room and two examination rooms, all of which were furnished and fully equipped by the defendant. There were four nurses assisting him, employed by the Company, the plaintiff having no right either to employ or to discharge any of them. The plaintiff's compensation was $55.00 a week which amount was regularly paid without regard to the number of patients he treated or the number of hours he spent in the Company's service, but which was on occasions reduced or increased to correspond with general wage and salary reductions and increases. From his weekly pay the Company deducted payments for social security and unemployment compensation. He had no contract for any definite period but was subject to dismissal at any time. The status which the Statute protects is "a position * * * in the employ of" an employer — an expression evidently chosen with care. The word "employee" was not used. While it may be assumed that the expression which was adopted is roughly synonymous with "employee," it unmistakably includes employees in superior positions and those whose services involve special skills, as well as ordinary laborers and mechanics. Of course, the words are not applicable to independent contractors, but, except for casual or temporary workers, who are expressly excluded, they cover almost every other kind of relationship in which one person renders regular and continuing service to another. The policy of the Act is stated in Sec. 1(b), 50 U.S.C.A.Appendix § 301(b), to be that "the obligations and privileges of military training and service should be shared generally in accordance with a fair and just system * * *" though such declaration was hardly needed. Every consideration of fairness and justice makes it imperative that the Statute should be construed as liberally as possible so that military service should entail no greater setback in the private pursuit or career of the returning soldier than is unavoidable. The question here presented, therefore, is not to be solved by the application of abstract tests or formulae; but the factors which usually determine the nature of a disputed relationship must be considered in the light of the purpose which Congress intended to accomplish. Of course, the defendant could not exercise any control over the details of the plaintiff's work as a physician. The method of physical examination, the diagnosis and the treatment of injuries were *655 necessarily his sole province, and if the right to dictate the manner of doing the work were the final and decisive test the plaintiff could not be classed as an employee. However, even in cases where the interpretation of a statute is not involved, that is by no means the only thing to be considered. In the present case the manner in which the plaintiff was paid, the extent to which his time was at the Company's disposal and the right of the Company to discharge him at any time, point to an employee status rather than that of an independent contractor. So long as he was with the Company he did not have the practicing physician's freedom to choose his own patients but was bound to receive and treat every case referred to him by it. Ownership of the premises upon which the plaintiff did most of his work and of the instrumentalities used, as well as the control of the plaintiff's subordinates and assistants, were all in the defendant. For what it is worth, the defendant unquestionably considered him no different from any ordinary employee. It required him to punch a time clock, and rewarded him with the employee's regular ten year service button, the Army and Navy E certificates and employee's bonus for enlistment. When the Draft Board classified him 1-A, the defendant filed an affidavit for his deferment, in which it described him as a regular employee operating on a twenty-four hour daily schedule. The relationship which resulted from all these various factors, viewed in the light of the purpose of the Statute, is clearly a position in the employ of the defendant and is perhaps better described by that term than any other which could be found. We agree with the learned Judge of the District Court that the circumstances of the employer did not, during the plaintiff's absence, change so as to make it unreasonable for the defendant to reengage him. The change in circumstances upon which the defendant grounded its refusal was this: In addition to his position with the Company, the plaintiff had been engaged as physician for an employees' Health Association, each member of which paid a monthly premium. The plaintiff received a certain fee per month for each member, for which he was to give the members medical treatment for ills not connected with compensable injuries, which were the subject matter of his employment with the Company. When the plaintiff went into the Army the Health Association employed another physician. Upon his return the Association declined to reemploy the plaintiff, preferring the new man. The position of the defendant is that it makes for greater efficiency and avoids some loss of the workers' time to have the same physician for both the Company and the Health Association. There is also a faint suggestion that the plaintiff had for some reason become unacceptable to the Health Association, but there is no evidence whatever of a change in his personal relations with the Company and it is not suggested that his professional qualifications, his mental or physical ability to do the work or his personal characteristics had altered in any way, or that the Company had any reason to believe that his services as medical director would be in any way different or less satisfactory than they were before he left. The Act says, unless the "employer's" circumstances have changed. Primarily, no doubt, this was intended to provide for cases where necessary reduction of an employer's operating force or discontinuance of some particular department or activity would mean simply creating a useless job in order to reemploy the plaintiff. Without deciding whether a change in the returned soldier's relations with other employees or with third parties generally can ever constitute a change in the "employer's" circumstances within the meaning of the Act, and assuming that the refusal of the Association to reemploy him is a relevant fact, we are of the opinion that there was no change in this case which would make it unreasonable for the defendant to reengage the plaintiff. Accepting the defendant's contention that there would be some loss of efficiency and possibly some additional expense involved, more than that is needed to justify refusal to reinstate a person within the protection of the Act. In most cases it is possible to give some reason for the refusal. "Unreasonable" means more than inconvenient or undesirable. The defendant's argument upon this point, if carried to its necessary conclusion, would defeat the main purpose of the Act and limit its operation to merely capricious or arbitrary refusals. Men and women returning from military service find themselves, in countless cases, in competition for jobs *656 with persons who have been filling them in their absence. Handicapped, as they are bound to be by prolonged absence, such competition is not part of a fair and just system, and the intention was to eliminate it as far as reasonably possible. The Act intends that the employee should be restored to his position even though he has been temporarily replaced by a substitute who has been able, either by greater efficiency or a more acceptable personality, to make it desirable for the employer to make the change a permanent one. Because we are of the opinion that the plaintiff is a person holding a position in the employ of the defendant the judgment of the District Court is reversed and the case remanded for appropriate action.

828 P.2d 462 (1992) 112 Or. App. 102 STATE of Oregon, Respondent, v. Charles Houston GUTHRIE, Appellant. 90-1173-C-3; CA A67307 (Control), CA A67334. Court of Appeals of Oregon. Argued and Submitted August 30, 1991. Decided March 11, 1992. *463 David K. Allen, Deputy Public Defender, argued the cause, for appellant. With him on the brief, was Sally L. Avera, Public Defender, Salem. Richard D. Wasserman, Asst. Atty. Gen., argued the cause, for respondent. With him on the brief, were Dave Frohnmayer, Atty. General, and Virginia L. Linder, Sol. Gen., Salem. Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ. DE MUNIZ, Judge. Defendant was convicted of attempted murder, ORS 163.115, assault in the first degree, ORS 163.185, assault in the fourth degree, ORS 163.160 and carrying a concealed weapon, ORS 166.240. He appeals his conviction for assault in the first degree and the upward departure sentence imposed on the convictions for attempted murder and assault in the first degree.[1] The charges arose from an incident on the evening of April 5, 1990, in the parking lot of a tavern in Jackson County. The victim, Hice, left the tavern and saw defendant and his brother beating up a third man. Hice testified that he walked up to defendant and told him, "Two on one ain't fair. Looks like he's had enough." Hice started to pull defendant away and was stabbed. Defendant's brother testified that Hice intervened before the man was hit and that Hice and defendant wrestled. The brother testified that Hice threw defendant to the ground and then charged him, after which the brothers stopped fighting and left. The jury found defendant guilty on all of the charges in the indictment. Defendant first assigns error to the trial court's order overruling his demurrer to the sentencing guideline subcategory language for the offense of assault in the first degree charged in count two of the indictment.[2] Under the sentencing guidelines, assault in the first degree is in crime seriousness category 10 "if the victim(s) did not substantially contribute to the commission of the offense by precipitating the attack." OAR 253-04-002; App 3. Otherwise, the offense is in category 9. Constitutional vagueness principles apply to the elements of a crime and also to the sentencing guidelines insofar as they define part of the conduct on which the sanction is based. See State v. Moeller, 105 Or.App. 434, 439, 806 P.2d 130, rev. dismissed, 312 Or. 76, 815 P.2d 701 (1991). Defendant argues that the language of the subcategory is unconstitutionally vague on its face. He contends that the "primary ambiguity in the guidelines language lies in the concept of [precipitating the attack]." He argues that the term precipitating could be read to apply to a victim like Hice, who was acting within the doctrines of self-defense and defense of others. On the other hand, he argues that the category might also be interpreted to apply only if the victim is involved in an unlawful act. Defendant contends that the language could also be read to exclude a victim who *464 comes within exceptions to the use of force in self-defense, as set out in ORS 161.215.[3] In short, his position is that the meaning is so unclear that judges and juries have "unbridled discretion to decide what conduct" comes within it and does not "provide notice of the forbidden conduct." State v. Cornell/Pinnell, 304 Or. 27, 29, 30, 741 P.2d 501 (1987). Defendant argues that the only way to save the subcategory is to interpret it as applying only to situations in which the victim is passive and is taken unawares by an attack. He urges that that interpretation would mean that fewer defendants would be sentenced to longer terms of imprisonment, a result that comports with the guidelines' policy that punishment by incarceration must not overburden the resources of the corrections system. OAR 253-02-001(3)(a). Even assuming that defendant's interpretation would result in fewer defendants being sentenced to incarceration for assault, we do not agree that the policy on which he relies takes precedence over all other policies underlying the guidelines. One of those is that ranking crime seriousness provides protection from personal assault for individuals. Commentary, Oregon Sentencing Guidelines Implementation Manual 12 (1989). Protection is not limited to passive victims only. The assault subcategory does not give a jury unbridled discretion to determine what conduct comes within it. The seriousness of an assault can depend, in part, on whether a defendant justifiably reacted to a victim's conduct. A jury can evaluate the circumstances and determine the culpability, if any, that a victim may share in provoking an assault. The language of the subcategory provides adequate notice to a person that an unprovoked assault is a more serious offense.[4] Defendant's final assignment of error is that the sentencing court erred in imposing an upward departure sentence of 180 months. He contends that the departure is not supported by the evidence and that the reasons given by the court were not substantial and compelling. ORS 138.222(3). The court found these aggravating factors: violence toward the victim, OAR 253-08-002(1)(b)(C); use of a weapon, OAR 253-08-001(1)(b)(E); permanent injury to the victim, OAR 253-908-005(1)(b)(I); persistent involvement in similar offenses, OAR 253-08-002(1)(b)(D); and prison discipline problems. The state concedes that the sentencing court erred in relying on the first three factors, which are elements of the crime of first degree assault. Under OAR 253-08-002(2), a factual aspect of a crime may not be used as an aggravating factor unless the aspect is "significantly different from the usual criminal conduct captured by the aspect of the crime." The court did not explain any significant differences and, in fact, indicated that the aggravation on which it was relying was, in part, "incorporated in the crime itself." Because we remand for resentencing, ORS 138.222(5), we address defendant's additional arguments. He contends *465 that the court erred in relying on "similar offenses," because his prior crimes were encompassed by his grid block. He also argues that the court erred in relying on his prison discipline history which, he contends, was too remote when considered with his "excellent" parole performance. Although "prison discipline" is not a departure factor listed under OAR 253-08-005(2), that list is not exclusive. OAR 253-08-002(1)(b)(D) provides that "[p]ersistent involvement in similar offenses" may be considered as an aggravating factor. The examples for that factor show that it has to do with the pattern of criminal behavior, instead of individual offenses that are reflected in the criminal history scale of the grid block. See State v. Cornelius, 112 Or.App. 98, 827 P.2d 937 (1992). The court could appropriately consider both factors as substantial and compelling reasons if it explains why they present circumstances not envisioned by the legislature in establishing the presumptive sentence. State v. Wilson, 111 Or.App. 147, 150-51, 826 P.2d 1010 (1992). The court did not provide that explanation. Defendant challenges the court's refusal to consider, as a mitigating circumstance, the victim's participation in the criminal conduct. OAR 253-08-002(a)(A). We do not review the court's decision whether to consider particular mitigating or aggravating factors. Under ORS 138.222(3), our review is limited to whether the reasons that the court provided for the departure constitute substantial and compelling reasons. State v. Wilson, supra, 111 Or.App. at 149, 826 P.2d 1010. Convictions affirmed; remanded for resentencing. NOTES [1] Convictions on those charges were merged for sentencing purposes. [2] Count two of the indictment reads, in part: "[T]he State further alleges that the above named victim did not substantially contribute to the commission of the above described offense by precipitating the attack, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon." [3] ORS 161.215 provides: "Notwithstanding ORS 161.209, a person is not justified in using physical force upon another person if: "(1) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person; or "(2) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force; or "(3) The physical force involved is the product of a combat by agreement not specifically authorized by law." [4] Defendant also assigns error to the denial of his motion for judgment of acquittal on the assault charge and the instruction that incorporated the subcategory language. He concedes that the record supports the conclusion that Hice was legally privileged to come to the aid of the third person. The alleged errors are based on his position, in the first assignment of error, that the language must be read to apply only to a cold-blooded assault on a passive victim. We have rejected that argument and, accordingly, find no error in the second or third assignments of error.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-11185 Conference Calendar KIM JEROME CARTER, Plaintiff-Appellant, versus STEVEN S. STAVRON, Defendant-Appellee. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CV-697-Y -------------------- August 24, 1999 Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges. PER CURIAM:* Kim Jerome Carter, Texas inmate #606546, has filed a “Motion to Dismiss Summary Disposition” and a “Motion Certifying Appeal is Taken in Good Faith,” which we construe as a motion for leave to proceed in forma pauperis (IFP) on appeal. Carter fails to challenge the district court’s determination that the appeal is not taken in good faith and fails to challenge the court’s rationale for dismissing the civil rights complaint** * 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. ** Carter brought suit against the private attorney who represented him in state court criminal proceedings in 1993.  No. 98-11185 -2- pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). Thus, even if there is a nonfrivolous issue for appeal, the issue is deemed abandoned. See Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995); see also Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986) (“To proceed on appeal [IFP], a litigant must be economically eligible, and his appeal must not be frivolous.”). Leave to appeal IFP is DENIED. This appeal is frivolous and therefore is dismissed. See 5th Cir. R. 42.2. The dismissal of the lawsuit as frivolous in the district court and the dismissal of this appeal as frivolous each count as a strike for purposes of 28 U.S.C. § 1915(g). We caution Carter that once he accumulates three strikes, he may not proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). IFP DENIED. APPEAL DISMISSED. 

981 F.2d 1288 299 U.S.App.D.C. 86 Katherine Anne MEYERv.George BUSH, Chairman, Task Force on Regulatory Relief, etal., Appellants. No. 92-5029. United States Court of Appeals,District of Columbia Circuit. Argued Sept. 18, 1992.Decided Jan. 8, 1993. [299 U.S.App.D.C. 87] Appeal from the United States District Court for the District of Columbia (88cv03112). Douglas Letter, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Matthew M. Collette, Atty., Dept. of Justice, Washington, DC, were on the brief, for appellants. Theresa A. Amato, with whom Alan B. Morrison and David C. Vladeck, Washington, DC, were on the brief, for appellee. Before: WALD, SILBERMAN, and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge SILBERMAN. Dissenting opinion filed by Circuit Judge WALD. SILBERMAN, Circuit Judge: 1 The district court, at the behest of the government, certified to us on interlocutory appeal the question whether President Reagan's Task Force on Regulatory Relief, headed by then-Vice President Bush and composed of certain cabinet members, is an "agency" for purposes of the Freedom of Information Act, 5 U.S.C. § 552. Appellee seeks certain Task Force documents under the Act. We reverse the district court's determination and hold that the Task Force was not an "agency." I. 2 Soon after his inauguration in 1981, President Reagan embarked on an effort to reduce regulatory burdens on the economy. As part of that program, the President established a cabinet-level Task Force on Regulatory Relief which included the Vice President, the Attorney General, the Secretaries of the Treasury, Commerce and Labor Departments, the Director of the Office of Management and Budget (OMB), the Chairman of the Council of Economic Advisers, and the President's Assistant for Policy Planning. President Reagan directed the Task Force to "review pending regulations, study past regulations with an eye towards revising them and recommend appropriate [299 U.S.App.D.C. 88] legislative remedies." As head of the Task Force, Vice President Bush named the Administrator for OMB's Office of Information and Regulatory Affairs (OIRA) as the Executive Director of the Task Force and a Special Assistant to the President as the Associate Director. Using staff from OMB, the Task Force operated from the Office of the Vice President. 3 President Reagan followed up the creation of the Task Force with Executive Order 12,291, which details the procedures for developing regulations and requires agencies to use cost/benefit analysis when making decisions. See Exec. Order No. 12,291, 46 Fed.Reg. 13,193 (1981). Agencies must issue a Regulatory Impact Analysis (RIA) for any regulations that have a significant effect on the economy--defined as "major rules" in the Executive Order. Subject to the direction of the Task Force, the OMB Director has the authority to review RIAs and to issue guidelines both for filing the RIAs and for identifying major rules. The Order also gives the OMB Director--subject to the Task Force's guidance--the authority, among other things: (1) to designate regulations as major rules; (2) to require agencies to seek additional information in connection with a regulation; (3) to require interagency consultation designed to reduce conflicting regulations; (4) to develop procedures for estimating the annual social costs and benefits of regulations; and (5) to prepare recommendations to the President for changes in agency statutes. Exec. Order No. 12,291, § 6. If any disagreements arise between an agency and OMB, the Task Force "shall resolve any issues raised under this Order or ensure that they are presented to the President." Id. § 3(e)(1). 4 Thus, the Order authorized OMB, under Task Force guidance, to provide policy advice, to require agencies to seek interagency coordination, and even to delay regulatory proposals. But it did not confer any power to prevent an agency from carrying out its legal duty. The Order cautioned that the agencies must follow its provisions only "to the extent permitted by law." Id. § 2. And § 8 exempts "[a]ny regulation for which consideration or reconsideration ... would conflict with deadlines imposed by statute or by judicial order." Moreover, in § 9, the President directed that the Order "is intended only to improve the internal management of the Federal government, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States." 5 The Task Force was in operation for two periods during the Reagan Administration. From 1981 to its initial termination in 1983, the Task Force reviewed and assessed regulations. In its "final report," the Task Force stated that it had "designated a total of 119 of the most questionable [existing] rules and regulatory programs for high-priority agency reconsideration," 76 of which the Administration took final action "to revise or eliminate," and 27 of which received "partial action or formal proposals for change." Under the Executive Order, OMB had reviewed 6,701 proposed and final regulations, including 89 final, and 53 proposed, "major" regulations. After a hiatus of three years, President Reagan reactivated the Task Force on December 15, 1986, and gave it much the same mission it had before. The Task Force was phased out after the transition to the Bush Administration. 6 On June 29, 1988, appellee submitted her FOIA request for documents held by "the Task Force on Regulatory Relief, Vice President George Bush, who Chairs the Task Force, or any other member of the Task Force." Appellee sought three types of documents: "(1) [a]ll reports, which have been issued since February, 1981, concerning the accomplishments of the Task Force; (2) [a]ll reports, which have been issued since February, 1981, which list or identify the regulations that the Task Force has reviewed; and (3) all reports, memoranda, correspondence, or other written documents transmitted to or from the Task Force or any of its members since January 1, 1985, concerning the Task Force's review of or involvement in regulations that were or still are under consideration by the Environmental Protection Agency, the Food and Drug Administration, or the Occupational [299 U.S.App.D.C. 89] Safety and Health Administration." After denying appellee's request, attorneys of the Vice President's office referred her to the OIRA Administrator, who also served as Executive Director of the Task Force. 7 Upon receiving appellee's renewed request, OMB officials conducted a search of publicly available reports and press releases, copies of Task Force documents located at OMB, and OMB's own files for records related to the Task Force. OMB did not conduct a search of the Vice President's files, which the government claimed were exempt from FOIA. In response to appellee's first two requests, OMB released only publicly available documents in its files. OMB identified eight "documents" covered by appellee's third request, but declined to provide them to appellee. The first seven documents are pages from briefing books prepared for the Vice President and other members of the Task Force (in 1987-88) for use during Task Force deliberations. They discuss agency regulations, the Task Force's staff analysis of those regulations, and policy recommendations to the Task Force. Copies of the briefing books were kept in "Task Force files" in the office of the OIRA Administrator, who, as it will be recalled, was also Executive Director of the Task Force. Although located at OMB, the files were segregated from OMB files. The government declined to produce these documents on the grounds that neither the Vice President nor the Task Force are "agencies" under FOIA. 8 The eighth document, a letter sent by the OIRA Administrator to Health and Human Services Secretary Bowen, contains "recommendations and guidance to be incorporated in future administrative and legislative proposals to improve the [FDA's investigational new drug] approval process," according to OMB officials. OMB withheld the letter under exemption 5 of FOIA, 5 U.S.C. § 552(b)(5), as a pre-decisional memorandum. The government concedes that the letter is an OMB--not a Task Force--document and that OMB is an agency within the meaning of FOIA. Thus, the eighth document is not subject to this interlocutory appeal. 9 Appellee brought suit in the district court challenging the adequacy of the document search, the government's specific refusal to search the Vice President's files, and the withholding of the eight documents. On a motion for summary judgment, the government claimed that the first seven documents were not "agency" documents, that the eighth was exempt, and that the search was adequate. Denying the motion, the district court held that the documents were Task Force documents, not the Vice President's, and that the Task Force was an agency under FOIA. See Meyer v. Bush, Civil Action No. 88-3122, Mem. Op., 1991 WL 212215 (D.D.C. Sept. 30, 1991). According to the court, "the Task Force was not formed simply to advise and assist the President," but rather "had substantial, independent, directorial authority." Id. The court did not decide whether the government was obliged to search the Vice President's files, and, upon the government's motion, certified as appropriate for an interlocutory appeal the question whether the Task Force is an agency under FOIA. II. 10 The district court applied the correct governing law in determining whether a body within the Executive Office of the President is a FOIA "agency." As amended in 1974, the Act defines "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(e) (emphasis added). 11 As clearly shown by the legislative history, however, Congress intended to codify our earlier decision (interpreting more general predecessor language) in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971).1 In [299 U.S.App.D.C. 90] that case, we held that the Office of Science and Technology (OST), a distinct entity within the Executive Office of the President, was a FOIA "agency." Although we acknowledged that OST advised and assisted the President, we emphasized that OST also had inherited from the National Science Foundation "substantial independent authority, " such as evaluating federal programs, initiating and supporting research, and awarding scholarships. Id. at 1073-75 (emphasis added); see also Rushforth v. Council of Economic Advisers, 762 F.2d 1038, 1041 (D.C.Cir.1985). OST was a FOIA agency precisely because it could act directly and independently beyond advising and assisting the President. "By virtue of its independent function of evaluating federal programs, the OST must be regarded as an agency subject to the APA and the Freedom of Information Act." Soucie, 448 F.2d at 1075. In Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980), the Supreme Court followed the legislative history and held that the Act did not cover " 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.' " Id. at 156, 100 S.Ct. at 971 (quoting H.R. CONF. REP. NO. 1380, 93d Cong., 2d Sess. 14 (1974)) (emphasis added). 12 Shortly after Kissinger, in Pacific Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 (D.C.Cir.1980), we decided that the Council on Environmental Quality (CEQ), an entity within the Executive Office of the President, was a FOIA agency. But subsequently in Rushforth v. Council of Economic Advisers, 762 F.2d 1038 (D.C.Cir.1985), we distinguished the Council of Economic Advisers (CEA) from the CEQ and exempted it from FOIA. We did so even though the House Report (on which the dissent relies, dissent at 1298) explicitly listed the CEA as an agency under FOIA. We concluded that the subsequent Conference Report's adoption of the Soucie test directly had undercut the House Report. We conceded that "the statutes organizing CEA and CEQ are, for all practical purposes, identical." Id. at 1041. Both organizations, moreover, performed duties, enumerated by statute, directed at providing advice and assistance to the President. CEQ differed, however, because several executive orders had given it the power to coordinate federal environmental programs and to issue guidelines to federal agencies for preparing environmental impact statements. Id. CEQ also had the authority to promulgate regulations--legally binding on the agencies--implementing the procedural provisions of the National Environmental Policy Act, 83 Stat. 852 (1970).2 See also Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581, 584-85 (D.C.Cir.1990). CEA had no similar power to issue formal, legally authoritative commands to entities or persons within or outside the executive branch. As we observed: "CEA is directed to appraise federal programs relative to a particular statutory policy and make recommendations to the President in that regard." Rushforth, 762 F.2d at 1043. But the "CEA has no regulatory power under [its] statute. It cannot fund projects based on [its] appraisal, as OST might, nor can it issue regulations for procedures based on the appraisals, as CEQ might." Id. 13 Appellee argues that the Task Force bore a closer resemblance to the CEQ than the CEA because it evaluated agency regulatory efforts and had authority to provide some direction over agency rulemaking. In other words, appellee focuses not on the [299 U.S.App.D.C. 91] Task Force's advice or recommendation responsibilities to the President, but rather on its interaction with the agencies. The government responds that the directions given to the agencies merely "assisted" the President because the President himself cannot issue every specific order to the departments and agencies. According to the government, appellee's argument would read "assist" out of Soucie and Kissinger 's "advise and assist" test, and would limit its exemption to bodies that only advise the President. The government also contends that the Task Force did not exercise sufficient independent authority--independent from the President--to qualify as an "agency" under the Act. It was no different than several presidential assistants acting together or than the President's cabinet. And the government emphasizes that the Vice President--a separate constitutional officer who could not be thought of as an "agency"--headed the Task Force. Finally, the government distinguishes our prior cases because, unlike the OST, the CEQ, or even the CEA, the Task Force never received any delegated authority from Congress. 14 The core of the dispute between the parties, then, turns on the degree of independence from the President the Task Force exercised in its relations with the rest of the executive branch. Was the Task Force, in Soucie 's words, "substantially independent," or was its function "solely to advise and assist" the President? The latter phrase is not easy to apply literally. Every action taken by any executive branch official can be described as "assisting" the President. On the other hand, the line cannot be drawn to include all those who direct others in the executive branch because, contrary to the legislative history and Kissinger, under that approach the White House staff would be an agency. We can assume, however, that Congress intended the phrase "solely to advise and assist" the President to refer to entities whose characteristics and functions were similar to those of the President's immediate personal staff. 15 Thus, when we apply Soucie to those who help the President supervise others in the executive branch, we think it is necessary to focus on three interrelated factors. We must ask how close operationally the group is to the President, what the nature of its delegation from the President is, and whether it has a self-contained structure. Proximity to the President, in the sense of continuing interaction, is surely in part what Congress had in mind when it exempted the President's "immediate personal staff" without requiring a careful examination of its function.3 See H.R.REP. NO. 1380, 93d Cong., 2d Sess. 14 (1974). Therefore, the other units in the Executive Office, which are exempted because they "advise and assist the President," would be those whose characteristics are similar to the White House staff--one of which is proximity to the President.4 16 Closely related to the proximity factor is the nature of the delegation. The greater the scope of the delegation--which also usually implies less continuing interaction with the President--the more independence an entity will exercise. Thus, Rushforth held that the CEA was not an agency because, unlike CEQ, CEA did not possess any delegated regulatory authority to supervise agencies. Similarly, we recently determined that the White House Counsel's Office is not a FOIA agency. National Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990). Unquestionably, the Chairman and members of the CEA and the White House counsel, like other senior White House officials close to the President, often give ad hoc directions to executive branch personnel.. [299 U.S.App.D.C. 92] But when it occurs, it is assumed that they merely are passing on the President's wishes. 17 In this case, appellee contends that the Task Force exercised regulatory authority over executive branch agencies. That is not accurate. Executive Order 12,291 did not authorize either the Vice President or the Task Force, qua Task Force, to give directions to the executive branch. Instead, the OMB Director took up that responsibility under the Executive Order. For example, the Order says the Director of OMB shall have the authority to designate major rules "subject to the direction of the Task Force." Exec. Order No. 12,291, § 3(b). The Director's other powers of review are only "subject to the direction of the Task Force." Id. § 3(e)(1), § (3)(i), § 5(b), § 6(a), § 6(b). The Associate Director of OMB for OIRA also served as Executive Director of the Task Force, but the government does not even claim that his (or the Director's), written policy instructions to the agencies were "Task Force" documents. As the government concedes, those documents, like document eight, are OMB records subject to FOIA. Insofar as appellee is correct in arguing that the body which provided direction to the executive branch is an agency under FOIA, that body is OMB, not the Task Force. 18 A careful reading of the Executive Order--which, of course, is the most important indication of the Task Force's role--reveals that whatever significant authority the President delegated he gave to the Director of OMB. Although the appellee and the dissent blend together the responsibilities of both OMB and the Task Force, they are analytically quite distinct. The dissent's list of the "Task Force's" responsibilities, dissent at 1294, is, therefore--like Homer's catalogue of ships--exhaustive but quite beside the point. Also irrelevant, at least to this case, is the dissent's concern that OMB's directives implementing the Executive Order should be exposed, see dissent at 1313 n. 26. Despite OMB's closeness to the President, it is a permanent agency with a significant staff and broadly delegated powers, and so it unquestionably falls under FOIA. 19 It remains to be determined, however, whether the Task Force's role, vis-a-vis the OMB Director and cabinet or agency heads, made the Task Force a FOIA agency. The Executive Order did give the Task Force the responsibility for providing "guidance" and "direction" to the OMB Director, and the authority to resolve disputes between agencies and OMB "or [to] ensure that they are presented to the President." Exec.Order No. 12,291, § 3(e)(1). In that respect, however, the Task Force theoretically was positioned between the OMB Director and the President, placing the Task Force only a hair's breadth from the President. After all, the OMB Director, whose duties include aiding the President in managing the entire executive branch, is (as the dissent recognizes at 1307) the cabinet officer functionally, if not actually, closest to the President. The cabinet members serving on the Task Force, therefore, were acting not so much as the heads of their departments, but rather as the functional equivalents of assistants to the President ("immediate personal staff" are, it will be recalled, exempt from FOIA coverage). Furthermore, notwithstanding appellee's proffer of press releases--which is not reliable evidence--we see no indication that the Task Force, qua Task Force, directed anyone, including OMB, to do anything.5 When the Task Force wished directions given to the executive branch, it found it necessary to advise the President to put such instructions in another Executive Order. (See Executive Order No. 12,498 § 1(d)). If the Task Force exercised all the powers which the dissent attributes to it, we would expect the Task Force to have generated more than only the seven documents that fell within appellee's FOIA request. 20 Nor does the dispute resolution mechanism of the Executive Order indicate that [299 U.S.App.D.C. 93] the Task Force, in dealing with the OMB Director (or the agency heads), acted with substantial independence. Despite the option granted to the Task Force to resolve disputes or bring them to the President, it is rather hard to imagine that the OMB Director, or any other head of a department or agency who reports directly to the President, would acquiesce in a Task Force decision that was thought not to represent directly and precisely the President's opinion. It seems implicit that the Vice President and the other members of the Task Force were not expected to resolve disputes themselves, without presenting those disputes to the President, unless they already knew the President's views on the exact issue. This, of course, means the Task Force was not expected to act with significant independence. Not surprisingly, there is no documented example of an agency appealing an OMB decision to the Task Force.6 21 Appellee suggests, however, that the Vice President's chairmanship of the Task Force gave the Task Force added clout and independent authority. The government responds that the Vice President's role made the Task Force even less plausible an agency under FOIA. Because of his constitutional position, according to the government, we must treat the Vice President and his staff in the same manner as the President and his staff. Indeed, appellee conceded at oral argument that if the Vice President alone held the exact duties of the Task Force, the Vice President would not be an agency for purposes of FOIA. See Armstrong v. Bush, 924 F.2d 282, 286 n. 2 (D.C.Cir.1991) (President and Vice President subject only to Presidential Records Act, not Federal Records Act).7 22 In any event, despite the Vice President's rank, we do not believe his status as Chairman lent the Task Force any authority independent of the President. The Vice President is the only senior official in the executive branch totally protected from the President's removal power. See Bowsher v. Synar, 478 U.S. 714, 721-27, 106 S.Ct. 3181, 3185-88, 92 L.Ed.2d 583 (1986) (presidential power to remove executive branch officials crucial to presidential control). Presidents are, for that reason, reluctant to delegate real supervisory authority over the executive branch to the Vice President. As Professor Rossiter has observed, it is dangerous for the President to give the Vice President administrative responsibilities "because the Vice President is not subject to removal" and so could become "a dagger aimed constantly at the precious unity of the executive power." C. ROSSITER, THE AMERICAN PRESIDENCY 140 (2d ed. 1960); see also Report of the Task Force in A HEARTBEAT AWAY: REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON THE VICE PRESIDENCY 64-66 (1988). No matter how close the personal and functional relationship between a Vice President and President, the former, mindful of traditional presidential concerns, presumably will not express direction to others in the executive branch unless his view is shared by the President. The Vice President's chairmanship,, [299 U.S.App.D.C. 94] thus, cuts against appellee's argument. 23 The Task Force's lack of a separate staff further indicates the absence of independent authority. In Soucie, we implied that structure and function, for purposes of defining agency, are interrelated. "If the OST's sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency." Soucie, 448 F.2d at 1075 (emphasis added). FOIA, by declaring that only "establishments in the executive branch" are covered, 5 U.S.C. § 552(e), requires a definite structure for agency status. And just as the intended exemption for the President's personal staff leads us to believe that proximity to the President is relevant so, too, the exemption suggests the importance of structure. For another characteristic of the President's immediate staff is its lack of a firm structure. 24 It could be said that, in one sense, the President "established" the Task Force, albeit by informal presidential direction, and then later delegated to it certain functions under Executive Order 12,291. But the Task Force was simply a partial cabinet group. The President does not create an "establishment" subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem. Furthermore, the Task Force operated out of the Vice President's office without a separate staff, borrowing OMB personnel as needed. We doubt that any individual or group, within the Office of the President, without a separate staff, can be regarded as an "establishment" with independent authority. Veterans of bureaucratic wars will insist that the typical officer in the executive branch is virtually powerless without a staff. And it is often said that presidential appointees are captured relatively quickly by their staffs--in other words, they are weaned away from presidential influence and made, in that sense, more independent. Whether these maxims are true or not, the Task Force's lack of a separate staff is a strong indicator that it was neither an "establishment" nor an independent actor in the executive branch. 25 The dissent at 1312 n. 24 suggests that the Executive Order might distinguish this case from one in which the President merely instructs several cabinet officers, or a group of White House assistants (or perhaps the Chief of Staff), to perform the same duties. But that distinction appears inconsistent with the dissent's insistence that the crucial factor is the function performed by the entity in question. As we understand our colleague's reasoning, if the President had set up this exact structure by memorandum, or even by oral direction, the Task Force would still be a FOIA agency. So the Executive Order is, according to the dissent's logic, mere surplusage. See dissent at 1303 n. 9; see also dissent at 1301. 26 We do not think much should turn on whether the President delegates authority to a White House group by memorandum or by Executive Order.8 Otherwise, of course, a future President could avoid creating an agency under FOIA by informally delegating authority to an "establishment" in the Executive Office. As we have indicated, however, the structure of the group is important in determining its relative independence from the President. Function is crucial, but, like the architect [299 U.S.App.D.C. 95] Louis Sullivan, we believe that form follows function. 27 The dissent acknowledges that the President has a constitutional duty to see that the laws are faithfully executed, and, therefore, a duty to oversee the regulatory policies produced by the departments and agencies. See Sierra Club v. Costle, 657 F.2d 298, 406 (D.C.Cir.1981); Public Citizen v. Burke, 843 F.2d 1473, 1477-78 (D.C.Cir.1988). Nonetheless, the dissent insists that the choice the President makes between various techniques to perform this task can have enormous consequences under FOIA. If he performs this role alone, meeting with his cabinet officers and agency heads "face to face," as our colleague puts it, he may keep the discussion entirely confidential (so long as the agency rule is justified by the record), Sierra Club at 657 F.2d at 407. But should he use a group of cabinet officers and perhaps White House staff in some sort of committee like the Task Force to screen the regulatory issues, he risks creating a FOIA agency. That approach empties the word "assist" in the Soucie test of all meaning. 28 The dissent does not dispute, however, dissent at 1311-12 & n. 23, that if the President used only White House staff in this manner, he would avoid FOIA altogether. In other words, if the President had set up this exact Task Force structure (including OMB's role) in this exact fashion (by Executive Order), but used senior White House staff personnel as his Task Force members, FOIA would not apply. If, on the other hand, a President employed his entire cabinet as his Task Force, the dissent insists that FOIA would apply. To be sure, the dissent does doubt that a President would ever delegate true independent authority to his cabinet.9 In light of that sound observation, however, it is difficult to understand why the dissent strains to construe the Executive Order as granting "substantial independent" authority to a partial cabinet group. And the dissent's position leaves open the obvious question: how would we treat an analogous Task Force composed partially of senior White House staff and cabinet officers? 29 The dissent appears to recognize that the structure employed at least bears on the question whether the President has delegated independent authority. Dissent at 1311 n. 22. It would appear, then, that the line the dissent draws in this case is governed more by fortuitous history than by a logical principle. The dissent asserts over and over that in this case--structure aside--the Task Force was given "substantial independent" authority. But it is unclear just what factors distinguish this case from a multitude of similar arrangements that a President could use to accomplish the exact same ends--arrangements that the dissent is unwilling to categorize as covered by FOIA or not. See dissent at 1311 n. 23. As for our dissenting colleague's concerns about the President's ability to "shroud [the Task Force's] actions in absolute secrecy," dissent at 1313, it is worth noting that when a President openly discloses exactly how he will review regulations--as, for example, by a Task Force mechanism--it might well be thought more forthright than the behind the scenes ad hoc approach sanctioned in Sierra Club. 30 In sum, the Task Force was not a body with "substantial independent authority" to direct executive branch officials. The various cabinet members of the Task Force were unquestionably officers who wielded great authority as heads of their departments. But there is no indication that when acting as the Task Force they were to exercise substantial independent authority, nor in fact, did they do so. Put another way, the whole does not appear to equal the sum of its parts. The cabinet officers were acting, in truth, just as would senior White House staffers. We think the dissent's characterization, moreover, of the Task Force as the "people" behind the scenes [or curtain?] "who call the shots" is [299 U.S.App.D.C. 96] not supported by the record in this case. The Task Force seems to have been merely a committee which convened periodically both to bring together the views of various cabinet department heads concerning significant proposed regulations, and to shape for the President's decision intra-agency disputes which, in truth, only he can resolve. As such, the Task Force fell within the Soucie test as an entity "whose sole function is to advise and assist" the President. 31 * * * * * * 32 Accordingly, for the reasons stated, we conclude that the Task Force was not an agency under FOIA. Having decided the issue certified to us, we remand the case to the district court. 33 It is so ordered. WALD, Circuit Judge, dissenting: 34 A close examination of the Freedom of Information Act ("FOIA" or "the Act") and its legislative history, the governing FOIA precedent, and the record of the Task Force's creation and functions demonstrates that the Task Force falls within the Act's definition of an "agency." The majority opinion does not give due weight either to the applicable law or to the actual role the Task Force played in the President's regulatory reform program. Accordingly, I dissent. I. BACKGROUND A. Legislative History 35 Congress in 1974 amended the Freedom of Information Act to broaden the definition of "agency" to encompass more entities "which perform governmental functions and control information of interest to the public," H.R.REP. NO. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6267, 6274, reprinted in FOIA SOURCE BOOK: LEGISLATIVE HISTORY, TEXTS, AND OTHER DOCUMENTS, COMMITTEE ON GOVERNMENT OPERATIONS, U.S. HOUSE OF REPRESENTATIVES 121, 128 (1975) [hereinafter FOIA SOURCE BOOK]. These amendments expanded the definition of an "agency" expressly to include an "establishment ... in the Executive Office of the President." 5 U.S.C. § 552(e). As the majority points out, the House/Senate conference committee, citing this court's decision in Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), clarified that "Executive Office of the President ... is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." H.R.REP. NO. 1380, 93d Cong., 2d Sess. 14 (1974), reprinted in FOIA SOURCE BOOK 219, 233 [hereinafter Conference Report]. What the majority overlooks, however, is the additional and quite specific guidance Congress provided for determining when an establishment in the Executive Office of the President is an "agency" for FOIA purposes. 36 Most significantly, Congress contemplated that "agency" would encompass entities, like the Task Force, which are created solely by executive order. The statutory language expanding the definition of an agency originated in the House bill, H.R. 12471. In its report accompanying that legislation, the House Committee on Government Operations stated: 37 For the purposes of this section, the definition of "agency" has been expanded to include those entities which may not be considered agencies under [the APA, 5 U.S.C. § 551(1) ], but which perform governmental functions and control information of interest to the public. The bill expands the definition of agency for purposes of [FOIA].... 38 The term "establishment in the Executive Office of the President," as used in the amendment, means such functional entities as the Office of Telecommunications Policy, the Office of Management and Budget, the Council of Economic Advisers, the National Security Council, the Federal Property Council, and other similar establishments which have been or may in the future be created by Congress through statute or by Executive order. 39 [299 U.S.App.D.C. 97] H.R.REP. NO. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6274, reprinted in FOIA SOURCE BOOK 121, 128 (emphases added).1 40 Additionally, the legislative history indicates that in focusing on "functional entities" within the Executive Office of the President, Congress intended to exclude from the FOIA the President's own records. An exchange during the floor debate on H.R. 12471 between Representative Moorhead, chair of the Foreign Operations and Government Information Subcommittee of the House Committee on Government Operations, and Representative Erlenborn, the ranking minority member of that committee, illustrates this: 41 Rep. Erlenborn: The question has been asked by Members on this side of the aisle as to the meaning of two definitions of agencies to include the Executive Office of the President. 42 I want to ask the gentleman if it is not correct, as it states in the report of the committee, that the term "establishment in the Executive Office of the President" as it is contained in this bill means functional entities, such as the Office of Telecommunications Policy, the Office of Manager of [sic] the Budget, the Council of Economic Advisers and so forth; that it does not mean the public has a right to run through the private papers of the President himself? 43 Rep. Moorhead: No, definitely not. I think the report is crystal clear on that. I thank the gentleman for bringing it up. 44 120 CONG. REC. 6806 (1974), reprinted in FOIA SOURCE BOOK at 241 (emphasis added). 45 From the foregoing, we can surmise congressional intent on the definition of an agency to the following extent: It includes establishments within the Executive Office of the President, excepting only the President's "immediate personal staff" or units whose "sole function" is to advise and assist the President.2 It encompasses entities created by executive orders, with no requirement that the entity receive direct congressional approval or appropriations. And it shields the President's own records. B. Precedent 46 In the oft-cited case of Soucie v. David, 448 F.2d 1067 (D.C.Cir.1971), this court interpreted the APA and the FOIA to confer agency status "on any administrative unit with substantial independent authority in the exercise of specific functions." Id. at 1073 (emphasis added). We determined that the Office of Science and Technology ("OST") satisfied this test "[b]y virtue of its independent function of evaluating federal programs...." Id. at 1075. 47 This court has applied the Soucie "sole function" test three times to entities within the Executive Office of the President; two of the three entities were found to be [299 U.S.App.D.C. 98] "agencies."3 In its first application of the Soucie test, this court held that the Office of Management and Budget ("OMB"), an entity within the Executive Office of the President,4 was an "agency" under the Administrative Procedure Act, 5 U.S.C. § 551(1) and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332. Sierra Club v. Andrus, 581 F.2d 895 (D.C.Cir.1978).5 The court held that, although the OMB's primary statutory duty was to prepare the President's budget proposal for submission to Congress, it was an agency under the "sole function" test. Id. at 902. The court noted that the preparation of the budget was "an aid to Congress as well as an instrument of presidential and policymaking control over the executive bureaucracy," and that the OMB had other "management, coordination, and administrative functions." Id. The court also found that Congress "signified the importance of OMB's function, over and above its role as presidential advisor," when it provided for Senate confirmation of the OMB's director and deputy director. Id. 48 In 1980, this court applied the Soucie test to determine that the Council on Environmental Quality ("CEQ"), a unit within the Executive Office of the President, was an "agency" for purposes of the Government in the Sunshine Act, 5 U.S.C. § 552b(b), which adopted the FOIA definition of an agency. Pacific Legal Foundation v. Council on Environmental Quality, 636 F.2d 1259 (D.C.Cir.1980). The CEQ was created by the NEPA, which authorized it to advise the President in preparing his annual environmental policy report; prepare studies on environmental conditions and trends for the President; review and appraise federal programs that affect the environment and make recommendations to the President about those programs; and recommend national environmental policies to the President. 42 U.S.C. § 4344. The CEQ's mission was later expanded by several executive orders, which made it responsible for overseeing activities of federal agencies; for coordinating federal programs related to environmental quality and for issuing guidelines to federal agencies for preparing Environmental Impact Statements; for issuing regulations to federal agencies for implementing the procedural requirements of the NEPA; and for publishing and revising the national contingency plan for removing oil and hazardous substances from navigable waters. Pacific Legal Foundation, 636 F.2d at 1262. Relying on the Supreme Court's determination in Soucie that the OST's authority to evaluate federal programs was sufficient to qualify it as an agency, this court looked to the CEQ's executive order authority to evaluate federal programs and likewise found it sufficient to qualify the CEQ as an agency. Id. at 1263. 49 The only entity within the Executive Office of the President that this court has found not to be an agency under the "sole function" test is the President's Council of Economic Advisors ("CEA"). Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C.Cir.1985). The CEA was created by statute, housed in the Executive Office of the President, and authorized to, among other things, advise and assist the President in formulating his economic policies; gather information concerning economic developments and trends; and appraise federal programs and activities in light of [299 U.S.App.D.C. 99] the President's economic policies. 15 U.S.C. § 1023. The court noted that the CEA and the CEQ, which the court had earlier determined to be an agency, were created by statutes that were "for all practical purposes, identical." Rushforth, 762 F.2d at 1041. Nonetheless, Judge Starr, writing for the panel, distinguished the CEA from the CEQ on the ground that the latter's statutory functions had been expanded under several executive orders. Id. These expanded--and apparently dispositive--functions included coordinating federal regulatory policy, issuing guidelines for agencies to prepare required statements, and promulgating regulations for implementing the procedural provisions of a key environmental law. Id. See also id. at 1042 (the CEQ's "expanded duties ... took [it] out of the realm of entities the sole function of which is to advise and assist the President"). Judge Starr also distinguished the CEA from the OST, found in Soucie to be an agency, by the OST's ability to "take direct action." Id. at 1041. 50 This court most recently applied the Soucie test not to an entity within the Executive Office of the President, but to the Defense Nuclear Facilities Safety Board, an "independent establishment in the executive branch." 42 U.S.C. § 2286(a). In Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d 581 (D.C.Cir.1990), we held that the Board was an agency under the Soucie test, based on four functions demonstrating that the Board did "considerably more than merely offer advice": it conducted investigations; formally evaluated the Energy Department's standards relating to defense nuclear facilities; "force[d] public decisions about health and safety"; and possessed the authority to impose reporting requirements on the Secretary of Energy. Id. at 584-85. The court found that, since "[e]valuation plus advice was enough to make the Office of Science and Technology an 'agency' in Soucie," and the CEQ an agency in Pacific Legal Foundation, the Board's evaluation and other functions more than fulfilled the Soucie test. Id. 51 These cases teach us that whether an establishment is an "agency" for FOIA purposes hinges primarily on its functions. See, e.g., Rushforth, 762 F.2d at 1043 n. 7 ("it is, at bottom, its function that determines an entity's status for FOIA purposes"); see also Ryan v. Department of Justice, 617 F.2d 781, 788 (D.C.Cir.1980) (agency status depends on "general nature and functions" of a particular unit). Specifically, agency status does not depend on where within the Executive Office of the President (but outside the Office of the President, see infra 1309-10, 1311 n. 23) the establishment is located, see Rushforth, 762 F.2d at 1041 (while the CEA and the OST were "located, hierarchically, in the same position ..., there [was] no indication that [their] functional roles ... were the same; and critically, it was the functional role of the agency on which Soucie turned") (emphasis added), nor on congressionally granted authority, see id. (CEA and CEQ had virtually identical authorizing statutes). Thus, determining whether the Task Force is an agency requires a careful examination of both its authorized and actual functions. II. APPLICATION OF THE LAW TO THE TASK FORCE 52 Turning now to the Task Force, it is obvious that both its structure and its authorized and actual functions satisfy all statutory and case law requirements of an agency under the FOIA. A. The Task Force as an Establishment 53 First, the Task Force was an "establishment" within the Executive Office of the President. The legislative history of the FOIA's expanded definition of "agency" makes clear that entities created by executive order are sufficiently "established" to fall within its ambit. H.R.REP. NO. 876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6274, reprinted in FOIA SOURCE BOOK at 121, 128. The majority, however, in its inquiry into the nature of the delegation of authority to the Task Force, completely overlooks the formality and authority of the delegation provided by Executive Order No. 12,291, saying that [299 U.S.App.D.C. 100] the President established the Task Force by "informal presidential direction" and suggesting that it lacked a sufficiently "definite structure" to qualify for agency status. Majority opinion ("Maj. op.") at 1296. Although the President announced the formation of the Task Force before he issued Executive Order No. 12,291, it was the Executive Order that spelled out the Task Force's mission, responsibilities and relationship to other entities in the executive branch, including those within the Executive Office of the President. Short of a reorganization plan requiring congressional approval, the executive order offers the most formal means available to the President to create or assign responsibility to an entity within the Executive Office of the President.6 Without deciding whether an entity in the Executive Office of the President without executive order authority can ever be an agency,7 it seems clear that an entity whose role is established by an executive order is a sufficient "establishment" to qualify as an agency, provided it passes Soucie 's "sole function" test.8 The majority [299 U.S.App.D.C. 101] is surely correct that the President "does not create an 'establishment' subject to FOIA every time he convenes a group of senior staff or departmental heads to work on a problem." Maj. op. at 1296. This is not, however, a question of the President calling in his chief of staff and the Director of OMB, or yet his entire cabinet, for a strategy session. Instead, it is a matter of the creation of a separate functional entity to which the President--by an executive order--delegated significant independent authority to act on a continuing basis without his ongoing involvement. See infra at 1304-07. 54 The potential importance of executive order authority is evident in our opinion in Rushforth.9 There we determined that the President's delegation of authority, through an executive order, was alone enough to make an entity an "agency": 55 [A]ppellant mounts a policy argument that the President should not be allowed to take an entity out of, or place an entity in, FOIA agency status by the mere expedient of adding or eliminating duties. This argument is unavailing. Congress' intent would appear to have been to require entities having authority and the ability to act, but not those whose sole function was to render advice and assistance to the President, to be subject to FOIA. If the President adds duties to an entity which bring it outside the sole-function test, Congress would want the entity covered. 56 Rushforth, 762 F.2d at 1042 n. 5. This confirms that the "independent" authority that takes an agency outside the sole function test can be granted by the President, as well as the Congress. See also id. at 1042 (CEA lacked the "independent" authority enjoyed by the CEQ--authority granted by an executive order); id. at 1041-43 (emphasizing that the inquiry is on an entity's functions, not its genesis).10 57 The majority also expresses its "doubt that any individual or group, within the Office of the President, without a separate staff can be regarded as an 'establishment' with independent authority." Maj. op. at 1296. This new "requirement" of the majority that an agency have a separate staff is at odds with our precedent focusing on how an entity functions, not where it gets the resources to perform those functions. See Rushforth, 762 F.2d at 1041 ("critically, it was the functional role of the agency on which Soucie turned"); id. at 1043 n. 7 (Senate confirmation of CEA members not given great weight, as "the nature of the appointment" did not "speak[ ] to the function of the CEA"). Nor does this staff "requirement" appear anywhere in the FOIA's language or legislative history. Indeed, when Congress indicated that an entity created by an executive order could be a FOIA agency, it had to have contemplated that the President might exercise his broad powers to structure the Executive Office of the President to staff the new entity as he saw fit, whether by transferring staff to it or by designating personnel of other Executive Offices to provide needed support. It [299 U.S.App.D.C. 102] is clear that, by permittinG FOia agencies to be formed by executive order, Congress foreswore any requirement that an agency's staff appear on a separate line in an authorization or appropriation bill. 58 Even in case law under the APA, whose definition of "agency" is less expansive than the FOIA's, there is no such "separate staff" requirement. Instead, the APA inquiry into agency status is much like the FOIA inquiry: focused on the functions of the entity, and flexible enough to encompass the "myriad organizational arrangements for getting the business of government done." Washington Research Proj., Inc. v. HEW, 504 F.2d 238, 246 (D.C.Cir.1974) (citations omitted), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975). See also Lee Constr. Co. v. Fed. Reserve Bank of Richmond, 558 F.Supp. 165, 173 (D.Md.1982) (" 'The authority to act with the sanction of government behind it determines whether or not a governmental agency exists.' ") (quoting Lassiter v. Guy F. Atkinson Co., 176 F.2d 984, 991 (9th Cir.1949)). 59 Staff capabilities may, of course, be relevant indicia of an entity's ability to take substantial independent action, see Grumman Aircraft Engineering Corp. v. Renegotiation Bd., 482 F.2d 710, 715 (D.C.Cir.1973), rev'd on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), but ready access to staff support or, as in the case of the Task Force, direct delegation of authority effectively to direct OMB staff is the functional equivalent of a separate staff, as this case illustrates. In any event, it is clear, the majority's claims aside, that the Task Force was not "virtually powerless" without a separate staff. Maj. op. at 1296. Through its authority to direct the OMB Director and through the service of the OIRA Administrator as Executive Director of the Task Force (reinforced by the political suasion of its high-powered membership), the Task Force had the staff of a powerful and effective agency at its disposal.11 B. The Task Force's Functions 60 Turning to the second part of our inquiry, the Task Force clearly had functions beyond "advising and assisting the President," as this term has been construed in our case law. As the majority acknowledges, Executive Order No. 12,291 "is the most important indication of the Task Force's role...." Maj. op. at 1294. This Executive Order gave the Task Force "substantial independent authority," Soucie, 448 F.2d at 1073, charging it with the "direction" of a far-reaching regulatory reform program. The Task Force's directions were to be carried out by the Director of the OMB. Exec. Order No. 12,291 §§ 3(b), 3(e)(1), 3(i), 5(b), 6(a), 6(b), 7(c), 7(g) and 8(b). The Task Force was to "direct" the OMB Director in performing the following functions: reviewing preliminary and final Regulatory Impact Analyses ("RIAs"), notices of proposed rulemaking, or final rules based on the requirements of the order, § 3(e)(1); monitoring agency compliance with the order, § 6(a)(8); designating a proposed or currently effective rule as a "major" rule subject to additional review and reporting requirements, §§ 3(b), 6(a), 7(c)(2); requiring reconsideration of major rules, § 7(c)(1); identifying duplicative, overlapping and conflicting rules and requiring interagency consultation to eliminate such duplication, overlap or conflict, § 6(a)(5); preparing and promulgating uniform standards for the identification of major rules and the development of RIAs, § 6(a)(2); establishing schedules for reviews [299 U.S.App.D.C. 103] of RIAs, § 3(i); developing procedures for estimating annual costs and benefits of agency regulations, § 6(a)(6); developing procedures for the performance of his own functions under the order, § 6(b); requiring agencies to provide and evaluate additional information in connection with regulations or with their regulatory agendas, §§ 5(b), 6(a)(3); requiring the publication of regulatory agendas in a prescribed form, § 5(b)(2); waiving the requirements of the order with respect to any existing or proposed major rule, § 6(a)(4); and preparing, in consultation with the agency, recommendations for changes in the agency's statutes, § 6(a)(7). The Task Force was also entrusted with resolving any issues raised under the order or ensuring that they were presented to the President. See § 3(e)(1). One need not "strain" to construe this Executive Order as granting the Task Force substantial independent authority. See Maj. op. at 1297. 61 Additional evidence in the record reveals that the President intended, and the Task Force provided, an active and independent force for regulatory reform. The President instructed the Chair of the Task Force to "take clear, constructive, and decisive action to restrain Federal regulation and to improve the regulatory process." Memorandum for the Heads of Executive Departments and Agencies, Office of the Vice President, Mar. 25, 1981; Press Release, Office of the Vice President's Press Secretary, Mar. 25, 1981 (Task Force "was instructed by the President to take action, not write reports"). By the Administration's own accounts, the Task Force exercised its powers to the fullest, undertaking the final review of regulations of "truly major consequence," Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the White House Press Secretary, Feb. 18, 1981; "direct[ing]" federal agencies to propose new rules, Press Release, Office of the Press Secretary to the Vice President, Mar. 10, 1987; Press Release, Office of the Press Secretary to the Vice President, Jan. 29, 1988; "recommend[ing]" that federal agencies propose certain rules, Press Release, Office of the Vice President, July 14, 1987; "conven[ing] working groups representing key agencies to develop appropriate legislative proposals and responses," Press Release, Office of the Vice President, Feb. 17, 1981; Press Release, Office of the Vice President, April 10, 1987; "designat[ing] ... rules and regulatory programs for high-priority agency consideration," PRESIDENTIAL TASK FORCE ON REGULATORY RELIEF, REAGAN ADMINISTRATION REGULATORY ACHIEVEMENTS, Aug. 11, 1983, at 5; id. at 78; Press Release, Office of the White House Press Secretary, Feb. 4, 1982; making "decisions" and taking "actions" to address the submissions it receives. Remarks of Vice President George Bush at the Presidential Task Force on Regulatory Relief Briefing, Aug. 12, 1981; and "target[ing]" existing regulations for in-depth agency consideration, id. 62 The Task Force was directly involved not only with other executive agencies but with Congress and with the public. It "work[ed] actively with those in the Congress to achieve legislative change in the regulatory area," Press Release, Office of the Vice President's Press Secretary, June 13, 1981. It also "formally request[ed]" private sector comments to itself and to the agencies, Press Release, Office of the Vice President, March 25, 1981, and its counsel advised business leaders: "If you go to the agency first, don't be too pessimistic if they can't solve the problem there. If they don't, that is what the Task Force is for." C. Boyden Gray, Remarks at Transcription of Hall of Flags Regulatory Reform Briefing (Apr. 10, 1981), reprinted in Role of OMB in Regulation: Hearings of the Oversight and Investigations Subcomm. of the House Comm. on Energy & Commerce, 97th Cong., 1st Sess. 92 (1981), cited in Erik D. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 VA.J.NAT.RES.L. 1, 56 n. 283 (1984). 63 These functions equal or surpass those of every entity determined to date to be a FOIA agency and satisfy every judicial articulation of the Soucie "sole function" [299 U.S.App.D.C. 104] test.12 Like the OST in Soucie, 448 F.2d at 1075, the CEQ in Pacific Legal Foundation, 636 F.2d at 1263, and the Defense Nuclear Facilities Board in Energy Research Foundation, 917 F.2d at 584, the Task Force evaluated federal programs. Instead of evaluating only scientific, technological or environmental programs, however, the Task Force evaluated regulatory programs across the spectrum of executive agencies. See Press Release, Office of the Vice President, Feb. 17, 1981 (Task Force was "in charge of the President's overall regulatory reform program"). Its evaluation functions included: identification of duplicative, overlapping and conflicting rules; the final review of regulations of "truly major consequence"; identifying specific areas where it believed reporting and paperwork requirements could be reduced and, in coordination with the OMB, reviewing these requirements in order to reduce them; reviewing agencies' legislative recommendations; and reassessing federal regulations and paperwork requirements. It is significant that the Task Force's evaluation functions were geared not just toward counseling the President, but toward guiding its own interactions with the OMB and other executive agencies. Although the CEA's functions included evaluation, see Rushforth, 762 F.2d at 1042 n. 6, Judge Randolph later pointed out that all of its duties "simply facilitate[d] providing advice to the President." Energy Research Foundation v. Defense Nuclear Facilities Safety Board, 917 F.2d at 584. By contrast, the Task Force's evaluation function shaped its decisions and actions directed toward executive regulatory agencies. 64 Like the Defense Nuclear Facilities Board, see Energy Research Foundation, 917 F.2d at 585, the Task Force imposed reporting requirements on federal agencies. Under Executive Order No. 12,291 the Task Force could direct the head of the OMB to require agencies to provide additional information in connection with their regulations or regulatory agendas; determine the standards for and the form in which agencies filed their RIAs and agendas; and, by designating rules as major rules, sharply increase the reporting requirements incident to the rules. The Task Force also satisfies Rushforth 's requirement of ability to take "direct action." Rushforth, 762 F.2d at 1041. The President instructed the Task Force to "take action," Press Release, Office of the Vice President, Mar. 25, 1981, and the Task Force claimed to have followed those instructions. It announced that, after formally requesting private sector comments about governmental regulation directed to itself and to the agencies, it made "decisions" and took "actions" to address these submissions. For example, the Task Force announced the EPA's "bubble" rule as one of the "actions taken" by the Task Force. [299 U.S.App.D.C. 105] Again like the Defense Nuclear Facilities Board, which "force[d] public decisions about health and safety," Energy Research Foundation, 917 F.2d at 584-85, the Task Force "directed" the Department of Health and Human Services and the Food and Drug Administration to make certain drugs available to AIDS patients, and claimed credit for regulations on the use of alternative fuels, as well as the "bubble" rule. 65 Finally, the Task Force exercised two of the three functions--coordinating regulatory programs, issuing guidelines and promulgating regulations--by which this court distinguished the CEA, which was not an agency, from the CEQ, which was. Rushforth, 762 F.2d at 1041. While the CEQ coordinated only environmental regulatory policy, the Task Force was "in charge of the President's overall regulatory reform program." The Task Force issued guidelines for all regulatory agencies on the preparation of the mandatory RIAs. And while it may not have published regulations in the Federal Register, its guidelines were, nonetheless, binding on federal regulatory agencies. See Exec. Order No. 12,498, § 1(d), 3 C.F.R. § 323 (1986), reprinted in 5 U.S.C. § 601 note (1988). Moreover, it had far-reaching authority to shape the regulations of all regulatory agencies, through the final review of regulations of major consequence, the direction to federal agencies to propose new rules, the selection of rules for special scrutiny or for reconsideration, and the scheduling of the centralized review of all major regulations. Thus, it is easily distinguished from the CEA, which, as the Rushforth court noted, "ha[d] no regulatory power." Rushforth, 762 F.2d at 1043 (emphasis added). To the contrary, the Task Force's functions beyond advising and assisting the President equaled or exceeded those of the CEQ, and clearly sufficed to distinguish it from the CEA and to qualify it as an agency. 66 In assessing the Task Force's functions, the majority makes three fundamental errors. The first goes to the scope of the delegation of authority to the Task Force. The majority asserts that Executive Order No. 12,291 did not authorize "the Task Force, qua Task Force, to give directions to the executive branch." Maj. op. at 1293. To the contrary, the Executive Order expressly authorized the Task Force to give effective direction to the OMB,13 and through the OMB, to other executive agencies. In so doing, the Task Force directed what is "often called the most powerful agency in the United States Government." J. PARRIS, CONGRESSIONAL RESEARCH SERVICE, THE OFFICE OF MANAGEMENT AND BUDGET: BACKGROUND, RESPONSIBILITIES, RECENT ISSUES i (1978), cited in Olson, supra, at 5. The Task Force's authority to direct other executive agencies was only fortified by Executive Order No. 12,498, which made the Task Force's regulatory policy guidelines binding on the agencies. See Exec. Order No. 12,498, § 1(d), reprinted at 5 U.S.C. § 601 note. Curiously, the majority cites this increase in the Task Force's direct authority over the agencies as a sign that the Task Force didn't "direct[ ] anyone ... to do anything." Maj. op. at 1294. In Executive Order No. 12,498, however, the President didn't just say to the agencies, "do as I say," but instead, "do as the Task Force says." Thus, the President in Executive Order No. 12,498 underscored his delegation to the Task Force of the authority to direct the agencies through the issuance of binding policy guidelines.14 67 The majority's description of the scope of the President's delegation to the Task Force comes not from the terms of the [299 U.S.App.D.C. 106] Executive Order itself or the Task Force's own account of the authority it exercised (which the majority rejects as "not reliable evidence," Maj. op. at 1294), but instead principally from its own conjecture and surmise. For example, the majority would measure the Task Force's "independent authority" by the extent to which its actions are not dependent on "continuing interaction with the President." Maj. op. at 1293. There is no evidence in the record that the Task Force had any continuing interaction with the President, and ample evidence, as discussed above, that it was authorized to act, and indeed acted, on its own. The majority surmises, nonetheless, that the Task Force, which was chaired by the Vice President, did not exercise any significant independent authority in part because "Presidents are ... reluctant to delegate real supervisory authority over the executive branch to the Vice President" who is not subject to the President's removal power.15 Maj. op. at 1295. The majority relies on this general hypothesis about presidential behavior instead of on the Administration's own statements that Executive Order No. 12,291 did in fact constitute a delegation of the President's supervisory authority. See, e.g., Press Release, Office of the Vice President, Mar. 25, 1981 (Task Force to "take action"); Office of Legal Counsel, Memorandum on Proposed Executive Order Entitled "Federal Regulation" (Jan. 28, 1981), reprinted in 5 OP.OFF. LEGAL COUNSEL 59, 63 (1981) (President through Executive Order No. 12,291 "authoriz[ed] the Task Force and OMB Director to supervise agency rulemaking"); id. at 64 (Task Force and OMB Director "authorized to require an agency to defer rulemaking"). Only by "screening out" the Executive Order's and the Administration's descriptions of the Task Force's substantial independent authority can the majority conclude that the Task Force was merely "screen[ing] the regulatory issues" for the President's review. Maj. op. at 1297.16 68 For example, the majority cavalierly dismisses, Maj. op. at 1294, the President's explicit delegation to the Task Force of the authority either to resolve disputes arising under the order or to determine when a dispute required the President's personal attention. The President's delegation to the Task Force of the authority to keep an issue from even reaching his desk is a clear indication of the Task Force's significant authority to deal independently with regulatory issues. The majority's statement that it "seems implicit" that the Task Force would not on its own resolve disputes without presenting them to the President is directly contradicted by the express language of the Executive Order, and by the Vice President's own assertion that the Task Force presented disputes to the President only "if necessary," see Press Release, Office of the Vice President, Feb. 17, 1981 (the "most sensitive questions" arising under Executive Order No. 12,291 "will be brought in timely fashion to the Presidential Task Force (and, if necessary to the President himself)"; "regulations of truly major consequence are brought before the Presidential Task Force (and the President, if necessary) for final review").17 The majority [299 U.S.App.D.C. 107] further suggests that, should the Task Force itself resolve disputes according to the President's known wishes, it would not be acting "independently." See Maj. op. at 1294-95. By this definition, virtually no loyal government body would be sufficiently "independent" to qualify as an agency. Only renegades or freelancers who ignored or disregarded the President's orders would be seen to "act independently." 69 The majority's resort to a thirty-year-old treatise about the presidency, Maj. op. at 1296, "maxims" about staff capture, Maj. op. at 1296, and the supposed beliefs of "veterans of bureaucratic wars," Maj. op. at 1296, to determine how the Task Force actually functioned, and its dismissal of the Task Force's Executive Order authority as "beside the point," Maj. op. at 1294, is troubling, to say the least.18 It discredits the two best and most reliable indications of the Task Force's role: the authority granted by the express terms of the Executive Order itself, and the Administration's own accounts of how the Task Force operated. 70 The majority's second fundamental error is in creating and applying an "operational proximity" test that represents a strained reading of the legislative history and runs directly counter to our precedent. The majority asserts--without citing any support from the legislative history or case law--that operational proximity in the sense of "continuing interaction" is, in part, what Congress contemplated when it exempted the President's "immediate personal staff" from the definition of an "agency." Maj. op. at 1293. Even assuming that "operational proximity" was a consideration in exempting the President's "immediate personal staff,"19 it should be confined to this exemption. The majority's error is in confusing the "immediate personal staff" exemption, which is not at issue here, with the "sole function" exemption, which is a separate inquiry. 71 [299 U.S.App.D.C. 108] The Conference Report, of course, said that the definition of "agency" to include establishments in the Executive Office of the President was to be interpreted to exclude "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." CONF.REP. at 13 (emphasis added). We and the Supreme Court have interpreted "immediate personal staff" to refer to the staff of the Office of the President, also known as the White House Office, one of the fourteen units within the Executive Office of the President,20 and accordingly have granted FOIA exemptions to persons or offices within the White House Office without applying the "sole function" test. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S.Ct. 960, 971, 63 L.Ed.2d 267 (1980) ("The FOIA does render the 'Executive Office of the President' an agency subject to the Act. 5 U.S.C. § 552(e). The legislative history is unambiguous, however, in explaining that the 'Executive Office' does not include the Office of the President."); National Security Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990) (noting that the Supreme Court "ha[d] made clear that the Office of the President is not an 'agency' for purposes of the FOIA" and that the Office of Legal Counsel was part of that Office) (citing Kissinger, supra ). The majority correctly "assumes" that the President's "immediate personal staff" encompasses "at least those approximately 400 individuals employed in the White House Office," Maj. op. at 1293 n. 3 (emphasis added), but then attempts to extend its "operational proximity" concept beyond the confines of the White House Office and to incorporate it into the "sole function" test. 72 This is not only an illogical reading of the two tests established in the legislative history, it is also at odds with our "sole function" precedent. We made clear in Ryan, 617 F.2d at 789, that regardless of an entity's close proximity to or continuing interaction with a President, it is a FOIA agency unless its sole function is to advise and assist the President. Thus, to the extent that we focus on how closely the entity works with the President, the "sole function" test, and not "operational proximity" is the proper inquiry. 73 Furthermore, by the majority's broad definition of "proximity," virtually every person or entity within the Executive Office of the President would be excluded from the FOIA, contrary to the statute's express inclusion of the Executive Office of the President in its definition of agency. For example, under the majority's "operational proximity" test, the Director of the OMB, determined by the majority to be the cabinet officer "functionally ... closest to the President," Maj. op. at 1294, would, on the basis of that proximity, be a shoo-in for exclusion from the FOIA, but no one disputes that the OMB, along with its director, is subject to the FOIA. 74 The OMB's recognized operational proximity to the President, see Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN.L.REV. 181, 185 (1986) (OMB "acts in some respects as the President's personal staff"); Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV.L.REV. 1075, 1083 (1986) (OMB's role "is to serve as the eyes and ears of the president and to advance" the President's policies), does not negate the fact that the OMB is an establishment within the Executive Office of the President whose functions go beyond advising and assisting the President. When the statute expressly includes establishments within the Executive Office of the President,, [299 U.S.App.D.C. 109] while the accompanying report language excludes only "immediate personal staff" and those whose "sole function" is to advise and assist the President, I have to read the report language to qualify, not obliterate, the statutory directive. 75 Finally, on the question of proximity to the President, it is important to note that the plaintiff does not seek records of the President, of the Vice President, nor yet of the Office of the Vice President.21 Instead, she seeks the records of a separate functional entity operating partly out of the Office of the Vice President and partly out of the Office of Management and Budget. 76 The majority's third fundamental error in assessing the Task Force's agency status is to confuse its composition or its structure with its functions. It finds inordinate significance in the fact that the members of the Task Force also served in other capacities as agency heads and members of the President's cabinet. That the President selected cabinet members to serve on the Task Force is not dispositive of its agency status22 for a very simple reason: The relevant inquiry is whether there is a separate establishment within the Executive Office of the President with substantial authority to act independently, and not the status of the individual members who make up the entity.23 77 Although the majority professes to subscribe to the view that "form follows function,"," [299 U.S.App.D.C. 110] Maj. op. at 1297, its reasoning is closer to "form dictates function." That is, it is willing to disregard a wealth of record evidence about the Task Force's actual and authorized independent functions because the structure of the Task Force--as a "partial cabinet group" with the Vice President at the helm--raises questions in the majority's eyes as to the Task Force's "real" independence. Maj. op. at 1295.24 78 The majority's focus on the composition of the Task Force is particularly puzzling in light of the majority's own identification of the three factors relevant under Soucie to determine whether entities like the Task Force are agencies: operational proximity, a self-contained structure (including an independent staff), and the scope and nature of the delegation from the President. Maj. op. at 1293, 1296. Although I disagree with the majority about the first two--which are entirely creatures of the majority's own making--the scope and nature of the President's delegation of authority is certainly the primary relevant inquiry. The majority, however, departs from its own inquiry into what the President delegated, that is, the degree of independent authority he gave the entity, and asks instead to whom he delegated this authority, that is, what other roles the members of the entity happen to play in the Administration. This inquiry is clearly inconsistent with the functional inquiry this court has applied in FOIA cases for twenty years. III. CONCLUSION 79 This case does not question the President's authority to supervise the oversight of federal regulations. The President's authority to "supervise and guide" subordinate executive officers in order to "secure th[e] unitary and uniform execution of the laws" is well-established. Myers v. United States, 272 U.S. 52, 135, 47 S.Ct. 21, 31, 71 L.Ed. 160 (1926). More specifically, we have acknowledged the President's need and authority to coordinate federal regulatory policy: 80 The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House staff advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered. The executive power under the Constitution, after all, is not shared--it rests exclusively with the President. 81 Sierra Club v. Costle, 657 F.2d 298, 405 (1981); see also In re Permanent Surface Mining Reg. Litigation, 13 ENV'T REP. CAS. (BNA) 1586, 1597 (D.D.C.1979) (consultation between the President's advisers and other entities in the executive branch permissible). To exercise that power, the President and his close advisers must be able to communicate freely, and, in some cases, without public scrutiny. See Sierra Club, 657 F.2d at 406 ("Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive."). This case, however, unlike Sierra Club, does not involve face-to-face strategy sessions between [299 U.S.App.D.C. 111] the President and his policymakers. Rather, it involves a separate functional establishment within the Executive Office of the President to which the President delegated some of his executive powers. We have a clear expression of congressional intent that the records of such establishments are generally subject to the FOIA. Cf. Sierra Club, 657 F.2d at 407 (determining lawfulness of undocketed meeting with the President "in the absence of any further Congressional requirements" on docketing). Because the Presidential Task Force on Regulatory Relief does not fall within the Soucie exception to FOIA coverage, it must, consistent with the directives and exemptions of the FOIA, make its records available to those who request them. 82 Nor does this case question the President's authority to establish any kind of high-level structure--or no structure--within the Executive Office of the President to direct the regulatory reform effort. The President can choose to accomplish his regulatory objectives through his own actions, through an establishment created pursuant to his executive order authority, through an entity created through a congressionally-approved reorganization plan, or simply through rump sessions with his cabinet members. But the President must live with the consequences of his choice, one of which may be the requirements of the FOIA. We recognized this indisputable fact in Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C.Cir.1980): "In many different areas the President has a choice between using his staff to perform a function and using an agency to perform it. While not always substantively significant, these choices are often unavoidably significant for FOIA purposes, because the Act defines agencies as subject to disclosure and presidential staff as exempt."25 The majority, nonetheless, chafes at these consequences, see Maj. op. at 1297, apparently concerned that the cloak of presidential privilege does not and cannot extend as far as the President's delegated authority. It is one thing, however, to say that the President's conversations with his closest advisers, here the Task Force members, are confidential. It is quite another to say that when the Task Force goes forth to exercise substantial independent authority, the President's consultative privilege extends not only to the Task Force in its communications to those whose work they direct, such as the Administrator of the OMB's OIRA, who served as the Task Force's Executive Director, but even to communications between the Task Force and representatives of regulated industries. I am perplexed as to how the majority could label such an approach "forthright." Maj. op. at 1297. The most the President can be said to have "openly disclose[d]," Maj. op. at 1297, is a review mechanism by which the substance of and the outside participants in the review can remain cloaked in secrecy. 83 Instead of addressing the Task Force's authority to direct the President's regulatory reform efforts, this case questions its authority to shroud its actions in absolute secrecy.26 Similarly tasked entities within [299 U.S.App.D.C. 112] the Executive Office of the President, most notably the OMB, operate without such a cloak. Shortly after the enactment of Executive Order No. 12,291, the Office of Legal Counsel advised the OMB that certain substantive communications from the OMB to rulemaking agencies or from outside parties to the OMB pursuant to the order should be disclosed in the administrative record. (The OLC exempted substantive communications from the OMB that formed part of the agency's deliberative process.) Office of Legal Counsel, Contacts Between the Office of Management and Budget and Executive Branch Agencies Under Executive Order No. 12,291 (Apr. 24, 1981), reprinted in5 OP. OFF. LEGAL COUNSEL 107, 110-12 (1981). The OMB itself expanded on this disclosure policy in 1986 under a directive issued by Wendy Gramm, then the Administrator of the OMB's Office of Regulatory Affairs. OMB, Memorandum for the Heads of Departments and Agencies Subject to Executive Orders 12,291 and 12,498 (June 13, 1986), reprinted in OMB, REGULATORY PROGRAMS OF THE UNITED STATES GOVERNMENT, APRIL 1, 1988--MARCH 31, 1989 (1988), app. III, at 529-31. Even supporters of a strong presidential role in supervising the regulatory process stress the importance of public disclosure of most OMB communications under Executive Order Nos. 12,291 and 12,498. See, e.g., Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN.L.REV. 181, 188-90, 192 (1986). In fact, one Administrator of OIRA testified that "the very purpose of ... Executive Order 12,291 is to make regulatory decisions more transparent and accessible." Statement of Christopher DeMuth, OIRA Administrator, Before the Subcomm. on Administrative Law & Governmental Relations of the House Judiciary Comm. (July 28, 1983), reprinted in Regulatory Reform Act: Hearings Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 98th Cong., 1st Sess. 895, 922 (1983). 84 Given the Realpolitik of the workings of the Executive Office of the President, it is candidly hard to see how disclosure of the same genre of communications by and to the Task Force, which worked hand-in-glove with the OMB, sharing its staff, records, and responsibilities under Executive Order No. 12,291, would pose any significant potential for disruption of the President's valid oversight functions. In fact, it would seem that the objectives of the OIRA disclosure procedures--and FOIA itself--would be thwarted if comments sent to the OMB or the OIRA are subject to public access, while similar comments on the very same matter directed to the Task Force are never revealed.27 85 The majority's approach thus creates two tracks: The Task Force, which is charged with the "overall direction" of the President's regulatory reform program, is shielded from disclosure laws, while the [299 U.S.App.D.C. 113] OMB, which operates under the Task Force's direction, is not. This clearly maps out the formula for getting around disclosure laws in the Executive Office of the President: First, put a small unit of decisionmakers atop a larger establishment of persons who carry out those decisions, and insist that because only the implementers have a staff, only they form the "agency." Second, when necessary, maintain that the "significant authority" resides only with the implementers, see Maj. op. at 1294, and that the "whole" of the decisionmaking unit is less than the sum of its parts. See Maj. op. at 1298. That is, if you sever the "brains" of an organization from the "body," the people who call the shots are never in the public's sights.28 86 Subjecting the Task Force, as well as the OMB, to the FOIA would not compromise either the President's legitimate oversight authority or his undisputed need for confidential policy deliberations, as the FOIA's exemption 5 expressly provides for a deliberative process privilege. In fact, the Administration invoked this privilege to shield certain documents requested by the plaintiff in this case. To the extent that the President or his close advisers need to protect sensitive policy discussions, they can more appropriately do so through the FOIA exemption, which protects particular records from disclosure, rather than through the FOIA agency determination, which bars all records from disclosure. See Pacific Legal Foundation, 636 F.2d at 1265 (where concern was protecting confidential advice to the President, court was unwilling to close all meetings, rather than those meetings in which such confidential advice was to be deliberated). 87 It is not enough to say, as the majority does, that the Task Force or its Chair is a "hair's breadth" or a "heartbeat" away from the President. This court has previously declined to exempt the President's closest advisers, his Cabinet members, from the FOIA: "Many Cabinet officers, like the Attorney General or the Office of Legal Counsel under him, act as advisors to the President for many of their important functions; yet they are not members of the presidential staff or exclusively presidential advisors, and are thus not exempt from FOIA requirements." Ryan v. Department of Justice, 617 F.2d 781, 789 (D.C.Cir.1980). See also Soucie, 448 F.2d at 1074 n. 22 (director of OST expected to replace the President's Special Assistant for Science and Technology in the capacity of personal adviser to the President on scientific matters). Nor is it enough to say that the Task Force operated at the highest levels of the White House. Soucie itself involved an agency created in the Executive Office of the President to provide "higher level" coordination of the nation's science policies. Soucie, 448 F.2d at 1074. Finally, it is not enough to say that the Task Force created the records at issue in its role of advising the President. The report at issue in Soucie was "requested by the President precisely for advisory purposes," Ryan, 617 F.2d at 788, as was the information the Attorney General had gathered in Ryan. Id. 88 Instead, the proper inquiry, as the district court noted, must center on the "functions and responsibilities of the Task Force, not the title of its Chairman or his other office," and on the evidence that the Task Force was not formed simply to advise and assist the President, but rather had "substantial, independent, directorial authority." The majority recognizes, as it must, that the district court "applied the correct governing law...." Maj. op. at 1291. As the extensive prior discussion demonstrates, and as the district court found as well, such an inquiry leads ineluctably to a recognition that the Task Force is an "agency" under the FOIA test. Accordingly, I would affirm the district court's judgment, and dissent from my colleagues' contrary conclusion. 1 "With respect to the meaning of the term 'Executive Office of the President' the conferees intend the result reached in Soucie v. David. The term is not to be interpreted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." H.R.REP. NO. 1380, 93d Cong., 2d Sess. 14 (1974) (citation omitted) Before the 1974 Amendments, FOIA simply had adopted the APA's definition of agency: "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. § 551(1). 2 CEQ also admitted in litigation that it was an "agency," but not when it acted in its capacity of advising and assisting the President. Pacific Legal Foundation, 636 F.2d at 1263. We rejected this on-again, off-again approach to FOIA in Ryan v. Department of Justice, 617 F.2d 781, 788-89 (D.C.Cir.1980) 3 The President's immediate personal staff, we assume, would encompass at least those approximately 400 individuals employed in the White House Office. See Reorganization Plan No. 1 of 1977, 5 U.S.C.App. 1, § 2. But as we recognized in Rushforth, the sole function test must be applied to other units in the Executive Office of the President 4 "If the OST's sole function were to advise and assist the President, that might be taken as an indication that the OST is part of the President's staff and not a separate agency." Soucie, 448 F.2d at 1075 5 It is interesting to note that in the beginning of the dissent OMB and the Task Force are mentioned together, but gradually OMB fades behind the "curtain" (see dissent at 1309 n. 18), and by the end of the opinion the Task Force emerges alone 6 The dissent cites an article in an obscure law review (not in the record) as evidence that the Task Force actually exercised the power to resolve a dispute between OMB and OSHA. Dissent at 1308-09 n. 17. The law review article claims that the Task Force's dispute resolution authority was rarely invoked and that the OSHA example was the only publicly known example of its exercise. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 VA.J.NATURAL RESOURCES L. 1, 44 & n. 210 (1984). But close examination of the law review article's sources shows that it is unlikely any such incident took place. At hearings on OMB's authority under Exec. Order 12,291, the representative of the AFL-CIO claimed that the Task Force had intervened in an OMB-OSHA dispute to uphold OSHA's position. Nonetheless, the representative then conceded that "none of the intergovernmental exchanges ... are documented." Hearings on OMB Control of OSHA Rulemaking: Hearings Before a Subcomm. of the House Comm. on Gov't Operations, 97th Cong., 2d Sess. 22 (1982). In discussing the OMB-OSHA conflict, the head of OMB at the time merely noted that the Task Force had reviewed the matter but made no mention of an alleged appeal or a resolution of a dispute. Id. at 318 7 We do not have to decide whether the Vice President could ever be the head of a FOIA agency 8 The Executive Order carefully stated that its purpose was only for internal management and that it created no private rights. As such, it is doubtful that it had any legal significance. An Executive Order devoted solely to the internal management of the executive branch--and one which does not create any private rights--is not, for instance, subject to judicial review. Michigan v. Thomas, 805 F.2d 176, 187 (6th Cir.1986); Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 235-36 (8th Cir.1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976). The Order seems no different than a presidential memorandum delegating certain tasks to the Vice President and to some cabinet officers or to the President's own staff. If agency heads appealed directly to the President over a disagreement with OMB (or the Task Force) on regulatory matters--without giving the Task Force its opportunity to resolve disputes--it surely would not have been thought "illegal." Certainly, the President, if he wished, could have ignored his own Task Force 9 The old story about President Lincoln overruling his entire cabinet is instructive. After receiving the unanimous vote of his cabinet against a certain decision, Lincoln announced: "The vote has been taken. Seven noes, one aye--the ayes have it." See R. FENNO, THE PRESIDENT'S CABINET 29 (1963) 1 Although this court has subsequently concluded that one of the House's illustrative examples of a "functional entity," the Council of Economic Advisors, falls within the Soucie exception for units whose "sole function" is to advise and assist the President, Rushforth v. Council of Economic Advisors, 762 F.2d 1038 (D.C.Cir.1985), this does not undercut the congressional determination that entities created by executive orders can be "agencies" under the FOIA. After expressly providing that its substitute "follow[ed] the House bill "--the bill that defined "agency" to include establishments within the Executive Office of the President--the Conference Report merely imposed the additional requirement that this term be "interpreted" according to the Soucie test. CONF.REP. at 13, 14 (emphasis added) 2 It is worth noting that while the Senate bill did not expressly refer to entities within the Executive Office of the President, the Senate Committee on Government Operations contemplated that they would be included as "agencies" under the Soucie test: Section 3 expands on the definition of agency as provided in section 551(1) of title 5 [the APA]. That section defines "agency" as "each authority (whether or not within or subject to review by another agency) of the Government of the United States other than Congress, the courts, or the governments of the possessions, territories, or the District of Columbia." This definition has been broadly interpreted by the courts as including "any administrative unit with the substantial independent authority in the exercise of specific functions," which in one case was held to include the Office of Science and Technology. Soucie v. David, 448 F.2d 1067, 1073 ( [D.C.Cir.] 1971). S.REP. NO. 854, 93d Cong., 2d Sess. 32 (1974), reprinted in FOIA SOURCE BOOK at 153, 185. 3 We did not apply the Soucie "sole function" test to the White House Counsel, but instead treated it as part of the President's "immediate personal staff." See National Security Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C.Cir.1990) 4 The OMB itself was a presidential creation. See Reorganization Plan No. 2 of 1970, 35 FED.REG. 7959 (1970), reprinted in 31 U.S.C. § 501 note (1988) 5 The APA defines agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency." 5 U.S.C. § 551(1). Although the Sierra Club court was determining agency status under the APA, and not under the FOIA, its application of the Soucie test is nonetheless instructive here. Obviously, it applies the appropriate test, and moreover, since the FOIA definition is an expansion of the APA definition, see H.R.REP. NO. 1380, 93d Cong., 2d Sess. 13 (1974), reprinted in FOIA SOURCE BOOK at 219, 231, any entity determined to be an agency under the APA should easily qualify as an agency under the FOIA 6 The government acknowledges that an executive order remains in effect until formally rescinded. Letter from Appellant to Clerk of Court, October 2, 1992, at 4. See Feliciano v. United States, 297 F.Supp. 1356, 1358, 1359 (D.P.R.1969), aff'd, 422 F.2d 943 (1st Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970). An executive order is, for many purposes, a form of presidential "law." See, e.g., Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (managerial executive order lacking specific statutory authority can be "relevant federal law" for purposes of Supremacy Clause); In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890) (executive directive issued by the Attorney General was a "law of the United States" under the habeas corpus statute). See generally John E. Noyes, Executive Orders, Presidential Intent, and Private Rights of Action, 59 TEX.L.REV. 837, 839 (1981) (executive orders are "the most important type of 'Presidential legislation' ") While an executive order that merely implements a personal policy of the President may not be enforceable in a private civil action, Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 236 (8th Cir.1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976); Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451, 452 (D.C.Cir.1965), cert. denied, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966), at least one commentator has concluded that Executive Order No. 12,291 nonetheless binds the agencies under the doctrine of the unitary executive, which makes the rule of the executive the rule of the agency, and the doctrine that agencies must follow those rules that go beyond mere regulation of internal housekeeping. Peter Raven-Hansen, Making Agencies Follow Orders: Judicial Review of Executive Order 12,291, 1983 DUKE L.J. 285. 7 At least one entity outside of the Executive Office of the President that was created without statutory or executive order authority has been determined an agency for FOIA purposes. See Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 969 n. 2 (7th Cir.1977) (Watergate Special Prosecution Force, whose authority was delegated by the Attorney General through a formal Department of Justice regulation, was an agency under FOIA because it "exercised the requisite independent authority in exercising specific functions") 8 To the extent that the majority's assertion that the FOIA requires a "definite structure," Maj. op. at 1296, suggests that the statute requires a specific form or structure, I must disagree. The choice of the word "establishment," in lieu of board, division, office or some other term, makes the FOIA applicable to a broad range of structures. See Armstrong v. Bush, 924 F.2d 282, 289 (D.C.Cir.1991) (in the APA, "Congress thought it 'necessary to define agency as 'authority' rather than by name or form, because of the present system of including one agency within another or of authorizing internal boards or 'divisions' to have final authority' ") (quoting Senate Judiciary Committee Print, reprinted in LEGISLATIVE HISTORY OF THE ADMINISTRATIVE PROCEDURE ACT, S. Doc. No. 248, 79th Cong., 2d Sess. 13 (1946)). Therefore, I believe that while the general structure of an entity is relevant to whether it satisfies the statutory requirement of an "establishment," its specific form or structure is not dispositive of its agency status No less novel or puzzling is the majority's requirement that a FOIA agency have a "self-contained structure." Maj. op. at 1293. Does this suggest that no interagency task force, even if created by statute, heavily staffed, and armed with significant independent authority, could ever be a FOIA agency? Or is it intended to exclude any entity that relies on another body for staff or other support services? Whatever the majority intends, this requirement appears incompatible both with the legislative intent to expand the definition of agency and with this court's heretofore largely functional inquiry under Soucie. Perhaps most curious is the majority's analogy to the structure of the White House Office, or the President's "immediate personal staff." The majority first observes that the President's "immediate personal staff," which has been exempt from FOIA, lacks a "definite structure." (I'll assume for purposes of argument that this is true.) It then suggests that, because the White House staff possesses this characteristic, this characteristic is relevant to the FOIA inquiry. Maj. op. at 1296. By this same reasoning, the majority could claim that, because the White House Office has upwards of 400 employees, then only entities that have 400 employees can be agencies under FOIA. The majority does not explain how or why such fortuitous characteristics of the President's "immediate personal staff" can or should become relevant to our "sole function" inquiry. 9 Of course, how a President delegates to an entity is not as important as what he delegates. Here, he delegated significant authority to act independently. While Rushforth demonstrates that delegation by an executive order can, in some circumstances, be sufficient to establish an agency, we are not called on here to decide if such authority is necessary, and it bears repeating that I have nowhere suggested that it is. Cf. Maj. op. at 1296. In this regard, I agree with the majority that a President should not be able to avoid FOIA merely by delegating authority informally. Maj. op. at 1297. In this particular case, however, Executive Order No. 12,291 happens to provide relevant evidence for both parts of our inquiry: first, whether the Task Force was an "establishment," and second, how it functioned. In another case, however, an entity without executive order authority might well be deemed a FOIA agency 10 In light of the foregoing discussion, I am puzzled by the majority's assertion that I view Executive Order No. 12,291 as mere "surplusage." Maj. op. at 1296 11 Moreover, any "veteran of bureaucratic wars," see Maj. op. at 1296, is certainly familiar with the common practices of "assigning" and "detailing" top staff members from one agency to another, particularly to the White House, see, e.g., S. REP. NO. 353, 102d Cong., 2d Sess. 52 (1992) (supporting "White House efforts to reduce its reliance on detailees"), and with the existence in the Executive Office of the President of a separate unit, the Office of Administration, which is directed "to provide components of the Executive Office of the President with such administrative services as the President shall from time to time direct." Reorganization Plan No. 1 of 1977, 5 U.S.C.App. 1, § 2. Thus, there is little cause to worry that any high-level establishment within the Executive Office of the President will be a toothless tiger without its own independent staff 12 It is worth noting that the Task Force also possessed certain characteristics that this court has found relevant, if not required, in determining agency status. In Sierra Club v. Andrus, we noted that Congress had signalled the "importance of the OMB's power and function, over and above its role as presidential adviser," when it provided for Senate confirmation of the OMB's director and deputy director. 581 F.2d at 902. Congress has similarly required the Senate's advice and consent in the selection of the head of OIRA, who serves as the Executive Director of the Task Force. 44 U.S.C. § 3503(b) (1988). And to the extent that it is relevant that the OST assumed the functions of an entity that was itself an agency, the National Science Foundation, see Maj. op. at 1291, the Task Force assumed many functions previously exercised exclusively by the OMB. Under President Ford, for example, the OMB by itself evaluated agencies' Inflation Impact Statements and set criteria for determining which rules had to be accompanied by these statements. Exec. Order No. 11,821, 3A C.F.R. § 926 (1971-1975 Compilation), modified by Exec. Order No. 11,949, 3 C.F.R. § 161 (1976). Under President Carter, the OMB by itself guided agencies in performing the detailed regulatory analyses required under Executive Order No. 12,044. Exec. Order No. 12,044, 3 C.F.R. § 152 (1978). Executive Order No. 12,291, of course, goes farther than either of its predecessors in asserting central presidential control over the regulatory process. See Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 GEO.WASH.L.REV. 533, 549 (1989) ("The Reagan administration's program for oversight of regulation is the most ambitious to date."); Peter L. Strauss & Cass R. Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 ADMIN.L.REV. 181, 185 (1986) (Executive Order 12,291 and Executive Order 12,498 represent the "most dramatic steps" in asserting presidential authority over the regulatory process) 13 The Executive Order by its own terms recognizes the OMB as an executive agency. Exec. Order No. 12,291, § 1(d) 14 Of course, even before the issuance of Executive Order No. 12,498, federal agency compliance with other Task Force and OMB directives under Executive Order No. 12,291 was hardly optional. See Exec. Order No. 12,291 § 2 (agencies "shall" adhere to order's cost-benefit requirements; regulatory action "shall not be undertaken" unless costs outweigh benefits); id. § 3(f)(1) (agency "shall" consult with the OMB Director at his request and "shall" refrain from publishing regulatory analyses or notice of rulemaking until his review is complete); id. § 5(b) (OMB Director, subject to the direction of the Task Force, may "require" agencies to provide additional information and "require" publication of regulatory agendas in a particular form) 15 Ironically, after noting the dangers of a presidential delegation to an independent Vice President, the majority is willing to assume that the Vice President, in the exercise of his Task Force leadership, "presumably will not express direction to others in the executive branch unless his view is shared by the President." Maj. op. at 1295. Thus, the majority seems to believe that the court should assume the Vice President's loyalty to the President where it would be "dangerous" for his own President to do so 16 If the Task Force were merely reviewing or "screening" issues for the President's consideration and action, without more, it would not differ significantly from the Council of Economic Advisers, which we determined was not an agency. See Rushforth, 762 F.2d at 1043 (CEA's review of federal programs was connected to its function of making recommendations to the President); see also Defense Nuclear Facilities Board, 917 F.2d at 584 (CEA's duties "simply facilitate[d] providing advice to the President"). The evidence indicates, however, that the Task Force had significantly more independence than does the CEA 17 In determining how an agency functions, we have previously relied on its authorized functions, not merely its exercised functions. See Rushforth, 762 F.2d at 1041 (distinguishing the CEQ from the CEA by the executive order authority that had been delegated to the former). Thus, we have read Soucie to declare that the OST was an agency because "it could take direct action," Rushforth, 762 F.2d at 1041 (emphasis added), not because it did take that action. This is certainly the correct reading of Soucie, in which we inquired into the functions that had been delegated to the OST, rather than those that it had exercised. See Soucie, 448 F.2d at 1075 (examining functions that were "transferred" to or "inherited" by the OST) Furthermore, it would be unreasonable to require FOIA plaintiffs to "document," see Maj. op. at 1294, a putative agency's actual exercise of each of its delegated functions, since the entity's very denial of its agency status under the FOIA deprives the plaintiffs of the necessary documentation. In cases such as this one, where delegated authority may be exercised informally, there will often be no more than second-hand accounts of its exercise. See, e.g., Erik D. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 VA.J.NAT.RES.L. 1, 44 n. 210 (1984) (citing Hearings on OMB Control of OSHA Rulemaking: Hearings Before a Subcomm. of the House Comm. on Gov't Operations, 97th Cong., 2d Sess. 4-5, 20-26, 55, 316-19 (1982)) (account of the Task Force's actual exercise of its power to resolve a dispute between OMB and OSHA). In any event, whether or not the Task Force actually exercised its delegated dispute resolution function should not be dispositive of its agency status. The record amply demonstrates that the Task Force both possessed and exercised sufficient other functions to put it within the realm of FOIA agencies. And its authority to resolve disputes--whether or not ever exercised--only enhanced its position in the executive branch and reinforced its other express delegations of authority to direct the regulatory efforts of federal agencies. Of course, this does not mean that an entity's actual exercise of unauthorized functions could not subject it to agency status under the FOIA. To hold otherwise would be to permit irregular organizations or activities to escape disclosure. Instead, the inquiry should extend to functions that were either authorized or exercised, not just those that were authorized and exercised. 18 Disregarding the record evidence of the Task Force's active involvement in regulatory reform, the majority paints a picture of a "virtually powerless" group that was not an "independent actor" in the executive branch. Maj. op. at 1296. The real power, they suggest, resided not with this Cabinet-level Task Force chaired by the Vice President, but with the OMB. Frankly, this conjures up visions of the OMB as a looming, booming, electronic Wizard of Oz, exhorting us to "pay no attention to that man behind the curtain." Where, as here, the "man behind the curtain" is undertaking functions that are legally significant to our inquiry, we cannot and must not disregard them 19 I see little point in pursuing an inquiry into the scope of or the congressional intent behind the "immediate personal staff" exemption, as this case calls on us to construe only the "sole function" exemption 20 See Reorganization Plan No. 1 of 1977, 5 U.S.C.App. 1. The White House Office, which has roughly 400 employees, "concentrates on close personal support including policy and political advice and administrative and operational services." Id. (Message of the President). Other units within the Executive Office of the President, which has over 1800 employees, include the Office of Management and Budget, the National Security Council, the Council of Economic Advisers, the Office of Policy Development and the Office of the Special Representative for Trade Negotiations. See Charles R. Babcock, Hard to Pin Down What Taxpayers Give at Top Office, WASH. POST, Oct. 19, 1992, at A19; H.R.REP. NO. 618, 102d Cong., 2d Sess. (1992) (accompanying the bill appropriating funds for the Executive Office of the President); H.R.REP. NO. 919, 102 Cong., 2d Sess. (1992) (same) 21 The plaintiff requested not records of the Vice President "in his capacity as adviser to the President," but those "that were received or generated by the Task Force which he chairs." The district court below, having no evidence on whether the Office of the Vice President kept Task Force documents, withheld judgment as to whether the defendants would have to search there, too. Thus, the propriety of searching records of the Office of the Vice President is not before us 22 Nor would the basic inquiry under Soucie be different if the Task Force's members included the entire cabinet. It would be unprecedented for a President to turn his cabinet loose to take substantial independent actions on its own and without his ongoing involvement and direction; I know of no instance of the President's delegating to the cabinet "qua cabinet" substantial independent authority. The President's cabinet traditionally has existed solely to advise and assist the President in the exercise of his own retained authority. The majority's own anecdote, in which President Lincoln participates in and overrules the decision of his cabinet, see Maj. op. at 1297 n. 9, underscores that the President had not delegated any of his authority to the cabinet. Nonetheless, should a President ever exercise his power to delegate substantial independent authority to the cabinet (or to an entity that included all of the cabinet members), there would be no barrier to our applying the Soucie "sole function" test to determine if the cabinet's (or this entity's) new and enlarged powers qualified it as a FOIA agency I do recognize that, in applying the Soucie test where the delegation of authority is informal, implicit or otherwise ambiguous, the structure employed might provide some indication of whether the President had, in fact, delegated substantial independent authority. See Maj. op. at 1297. In this case, however, the Task Force's substantial independent authority is expressly and unambiguously delegated in Executive Order No. 12,291 and amply confirmed through the Administration's own statements. It cannot be negated merely by reference to the Task Force's structure or composition. 23 Although this Soucie "sole function" test is the proper test for establishments elsewhere in the Executive Office of the President, we have not applied it to persons or offices within the Office of the President, or White House Office. See Kissinger, 445 U.S. at 156, 100 S.Ct. at 971; National Security Archive, 909 F.2d at 545; see also Ryan, 617 F.2d at 789 (members of the presidential staff are exempt from FOIA). I recognize, therefore, that we would face a different question were we to consider the FOIA status of an entity comprised entirely of White House personnel, who have been exempt from FOIA in their traditional roles as the President's personal staff, but who now had stepped outside their traditional staff roles and were acting instead as principals to whom the President had delegated substantial independent authority. Since that question is not before this court, I do not address it. Since I do not address the question, I neither "dispute," see Maj. op. at 1297, nor endorse any conclusion as to its answer It does bear noting, however, that my recognition that an entity wholly within the White House Office presents a different case than the one before us is not "governed by fortuitous history," as the majority charges, Maj. op. at 1297, but by Kissinger and National Security Archive, which in turn were governed by the legislative history of the FOIA. My opinion also leaves open, as the majority correctly notes, Maj. op. at 1297, the question of the agency status of a hypothetical entity "composed partially of senior White House staff and cabinet officers." Maj. op. at 1297. Since that question, like the one involving White House staff alone, is not before the court, I do not reach it, either. Finally, in regard to White House staff, I question the majority's characterization of the Task Force as the "functional equivalent[ ] of assistants to the President," or senior White House staff. Maj. op. at 1294. The White House staff presumably advises and assists the President in the conduct of all his responsibilities, and without incurring FOIA responsibilities. There are two key distinctions, however. First, White House staff members presumably assist the President in his review of regulations, while the Task Force independently exercised the President's delegated authority to review those regulations. Second, as discussed above, even if the Task Force were functioning in a manner equivalent to White House staff, the relevant FOIA inquiry differs for White House staff and for other establishments within the Executive Office of the President. 24 Even if, as the majority urges, an entity's structure were to be given this overwhelming significance, I fail to see how the structure of the Task Force, which was headed by the "only senior official in the executive branch totally protected from the President's removal power," Maj. op. at 1295, would belie the executive order's express delegation of substantial independent authority 25 My colleagues find it "unclear just what factors" would lead me to distinguish this arrangement from similar arrangements that would not require FOIA disclosure. Maj. op. at 1297. I had hoped that my opinion made clear that the factors are, first, those that determine whether the "arrangement" creates an agency under FOIA; and second, if there is an agency, those factors that determine whether any particular communications with the agency can be kept confidential under a FOIA exception 26 Many commentators have decried the impenetrable veil of secrecy surrounding presidential intervention in rulemaking. See, e.g., Kenneth C. Davis, Presidential Control of Rulemaking, 56 TUL.L.REV. 849, 850-51 (1982) (the "harmful element" of secrecy in White House intervention under Executive Order No. 12,291 results in unfair procedure and impaired accountability); Alan B. Morrison, OMB Interference with Agency Rulemaking: The Wrong Way to Write a Regulation, 99 HARV.L.REV. 1059, 1064 (1986) ("the entire process [of review under Executive Order No. 12,291] operates in an atmosphere of secrecy and insulation from public debate that makes a mockery of the system of open participation embodied in the Administrative Procedure Act (APA)"); Erik D. Olson, The Quiet Shift of Power: Office of Management & Budget Supervision of Environmental Protection Agency Rulemaking Under Executive Order 12,291, 4 VA.J.NAT.RES.L. 1, 14 (1984) (OMB's "propensity for secrecy ... tends to undercut the value of OMB review); Steven T. Kargman, Note, OMB Intervention in Agency Rulemaking: The Case for Broadened Record Review, 95 YALE L.J. 1789, 1793 (1986) (Undisclosed OMB intervention results in "two different 'records': one reflecting what happened during the agency's public rulemaking proceedings, and the other reflecting what happened between the agency and OMB."); Ann Rosenfield, Note, Presidential Policy Management of Agency Rules Under Reagan Order 12,498, 38 ADMIN.L.REV. 63, 93 (1986) (because OMB regulatory review takes place "wholly in secret, it is hard to see how review of rulemaking has led to [the promised advantages of] the appearance of open government and increased agency accountability to the public"); Note, Executive Orders 12,291 and 12,498: Usurpation of Legislative Power or Blueprint for Legislative Reform?, 54 GEO.WASH.L.REV. 512, 530 (1986) ("secret presentations" to OMB "allow[ ] OMB to circumvent two related tenets of the APA: the requirement for giving interested parties the opportunity to submit materials into the rulemaking record, and the ban on ex parte communications") (citations omitted). See also H.REP. NO. 919, 102d Cong., 2d Sess. 49 (1992) (expressing conferees' concerns about the lack of a public record of the regulatory review conducted by the Council of Competitiveness "or such other similar reviewing agency established within the Executive Office of the President") 27 The 1986 OIRA disclosure procedures themselves were a response to congressional pressure to open up the OMB's processes, under a threat of defunding the OIRA. See Oversight of the Office of Management and Budget Regulatory Review and Planning Process: Hearing Before the Subcomm. on Intergovernmental Relations of the Senate Comm. on Governmental Affairs, 99th Cong., 2d Sess. 56-58, 97-98 (1986); see also Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 GEO.WASH.L.REV. 533, 582 (1989) 28 The majority thus misapprehends what it terms my concern about exposing OMB directives. See Maj. op. at 1294. I understand full well that the OMB is subject to disclosure, but I recognize that such disclosure is indeed a hollow gesture if the key records both influencing and documenting the actions taken by the OMB are funnelled only through the Task Force

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 09-3241 _____________ PRIMEPOINT, L.L.C. v. PRIMEPAY, INC., Appellant _____________ On Appeal from the United States District Court for the District of New Jersey (Civ. No. 1-06-cv-01551) District Judge: Hon. Renee M. Bumb Argued: September 23, 2010 Before: McKEE, Chief Judge, AMBRO and CHAGARES, Circuit Judges (Opinion filed: November 29, 2010) Philip S. Burnham, II, Esq. Burnham Law Group Plaza 1000 at Main Street Suite 202 Voorhees, NJ 08043 Douglas V. Rigler, Esq. (Argued) Young & Thompson 209 Madison Street Suite 500 Alexandria, VA 22314 Counsel for Appellant Abbe Fletman, Esq. (Argued) Flaster Greenberg 1600 John F. Kennedy Boulevard 2nd Floor Philadelphia, PA 19103 Adam E. Gersh, Esq. Darren H. Goldstein, Esq. Flaster Greenberg 1810 Chapel Avenue West Cherry Hill, NJ 08002 Counsel for Appellee __________ OPINION _________ McKEE, Chief Judge. PrimePay, Inc. appeals the district court’s final judgment that Primepoint, L.L.C. did not infringe upon PrimePay’s trademarks. For the reasons set forth below, we will affirm. Because we write primarily for the parties, we need not repeat the facts and procedural history of this case. Moreover, the district court has ably summarized that background and explained the legal issues in this case. See Primepoint, L.L.C. v. Primepay, Inc., 2009 WL 1884369 (D.N.J. June 30, 2009); Primepoint, L.L.C. v. Primepay, Inc., 545 F. Supp. 2d. 426 (D.N.J. 2008). On appeal, PrimePay argues that the district court; (1) legally erred when it failed to enjoin Primepoint’s use of the PrimeTax mark, and (2) legally and factually erred when it determined that there was no likelihood 2 of confusion between the marks of PrimePay and Primepoint, and therefore Primepoint did not infringe PrimePay’s mark. PrimePay argues that the district court erred in failing to enjoin Primepoint’s use of the mark “PrimeTax.” However, there is no evidence on this record that Primepoint continued to use that mark after it agreed to cease all use. It agreed to cease the use upon being notified that its use may infringe PrimePay’s trademark. Although PrimePay argues that it is nevertheless entitled to the requested injunction, it is clear that the district court did not err in refusing to enjoin something that was no longer occurring, absent evidence of the likelihood that an infringing use would occur again in the future. While “the court’s power to grant injunctive relief survives discontinuance of the illegal conduct. the purpose of an injunction is to prevent future violations.” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). Where the illegal conduct has ceased, the party seeking the injunction bears the burden of proving “that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” Id. We also reject PrimePay’s claim that the district court erred when it determined that PrimePay’s proof did not establish a sufficient likelihood of confusion between the marks of PrimePay and Primepoint to get relief. Judge Bumb issued a detailed and thoughtful opinion that carefully and clearly explained her reasons for finding that PrimePay had not established a likelihood of confusion, see Primepoint, L.L.C. v. Primepay, Inc., 2009 WL 1884369 (D.N.J. June 30, 2009), and we will affirm substantially for the reasons set forth by Judge Bumb. 3 

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0708n.06 No. 09-3214 FILED Nov 03, 2009 LEONARD GREEN, Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RICHARD HARPS, GENE DeFLORVILLE, ) MELVIN HARSEY, ALEXANDRA KOLLIAS, ) LENORE LADO, JUDITH O’NEIL, THOMAS ) O’NEIL, FARRELL THOMAS, and JOSEPH ) WIECZOREK, ) ) Plaintiffs-Appellants, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE NORTHERN ) DISTRICT OF OHIO TRW AUTOMOTIVE U.S., LLC, ) ) Defendant-Appellee. ) ) BEFORE: GILMAN and GRIFFIN, Circuit Judges, and STEEH, District Judge.* PER CURIAM. Plaintiffs, retired employees (or their dependents) of defendant TRW Automotive U.S., LLC (“TRW”),1 appeal the district court’s dismissal of their complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for vested retiree medical benefits. Because the district court did not err in ruling that a collective bargaining agreement unambiguously disclaimed * The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting by designation. 1 Although the retired employees were employed by non-party TRW, Inc., defendant TRW Automotive U.S., LLC, succeeded TRW, Inc., and assumed all liabilities relating to this lawsuit. No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC TRW’s obligation to provide lifetime retiree medical benefits and that a plant shutdown agreement did not enlarge plaintiffs’ rights or supplant the collective bargaining agreement, we affirm. I. The facts are not disputed. TRW operated a plant in Cleveland, Ohio, which manufactured engine valves. Beginning in 1992, the production and maintenance employees at the plant were represented by Local 2400 of the United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”). In 1997, TRW and UAW negotiated and signed a Collective Bargaining Agreement (“CBA”). The CBA provided, in relevant part: Retiree Medical Benefits TRW agrees to provide the following medical benefits to Cleveland Valve Plant and Clarkwood retirees and disabled employees who retired or became disabled on or after April 1, 1992 and those employees who retire during the term of this contract. The qualified dependents, widows and widowers of these groups are also eligible. 1. The TRW Cleveland Area Plan and the TRW Medicare Supplement Plan at the current level of medical benefits or their equivalent will be maintained, or: 2. Health Maintenance Organizations (HMO’s) will continue to be offered. TRW will contribute 75% of the monthly premium rate for the program in which the retirees participate. TRW reserves the right to make reasonable modifications to the benefits provided in the summary plan description. This clause shall not be construed to convey any rights to those beyond the term of this agreement. The CBA also stated: 33.1 Term. This Agreement shall remain in full force and effect until midnight, March 31, 2002, and thereafter until either party gives sixty (60) days written notice -2- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC by registered mail to the other party of the termination of this Agreement whereupon the same shall be terminated after said sixty (60) days, provided, however, that on or after April 1, 2002, either party may terminate any provision thereof upon such notice without terminating the remainder of this Agreement. In October 2001, TRW announced that it was closing the plant. Thereafter, TRW and UAW negotiated and signed a Plant Shutdown Agreement (“Shutdown Agreement”), effective February 2002. The Shutdown Agreement provided, in relevant part: 4. The following additional compensation and benefits will be provided to affected employees, where applicable. *** i. Pension Plan. Pursuant to the terms of the TRW UAW Local 2400 Pension Plan, affected employees will continue to be credited with up to 12 months of service following their date of layoff for purposes of determining eligibility for and amount of the benefit under the Plan. Service will stop accruing under that Plan if during that 12-month period the affected employee dies or retires. For purposes of eligibility for a normal or early retirement under the pension plan, an affected employee’s severance from service date shall be deemed to be 12 months after the date of their layoff, or earlier if they die or retire prior to that date. Employees, who retire during the 12-month period, or prior to that period, will receive the retiree health care benefits provided for in the collective bargaining agreement. *** 15. Except as modified by this Plant Shutdown Agreement, the Collective Bargaining Agreement between the parties dated April 1, 1997, is extended and shall remain in effect until June 30, 2002. -3- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC If any provision of the Collective Bargaining Agreement is inconsistent with any provision for the Plant Shutdown Agreement, the provisions of the Plant Shutdown Agreement shall govern. *** 21. Nothing in this Agreement shall be construed as waiving any Pension or Retirement benefits (including retiree medical) the affected employee may have under the terms of the Collective Bargaining Agreement. In addition, paragraph 10 provided that “[e]ach affected employee will sign a Receipt and Release . . . prior to receiving any payments and/or benefits provided in th[e] [Shutdown] Agreement” and that signing the Release will “extinguish all rights the employee may have under the Collective Bargaining Agreement dated April 1, 1997.” In the Release and Waiver attached as an exhibit to the Shutdown Agreement, the employee agreed to waive “any claims or causes of action . . . related to . . . the closing of the plant except for any individual statutory claims . . . vested rights (such as pension and insurance), and any rights set forth in the termination agreement.” The plant closed in July 2002. Plaintiffs, all of whom were UAW employees or their spouses, retired from the plant before or at the time of its closure. Thereafter, TRW continued to provide its retirees with the health care benefits described in the CBA until the end of 2005. In October 2005, TRW sent letters to its retiree medical plan participants explaining that, “[a]s healthcare costs continue to increase significantly year after year, TRW cannot continue ‘business as usual[.]’” The letters notified retirees that TRW was modifying their health care options. Specifically, the company advised its Medicare-eligible retirees that two Medicare Supplement Plan (“MSP”) options, MSP IV and Kaiser Medicare Plus-OH, would be discontinued -4- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC beginning January 1, 2006. At that time, all retirees who were covered by either of those plans would be enrolled automatically in a third option, Aetna MSP III. Unlike the previous two options, MSP III did not provide coverage for prescription drugs. TRW explained that it was making this change because the federal government had expanded Medicare to include optional prescription drug benefits (Medicare Part D) beginning in January 2006. The letters also notified all retirees, including those not eligible for Medicare, that TRW intended to modify the health coverage contribution structure. For Medicare-eligible retirees, TRW agreed to pay 100% of the 2006 monthly MSP III premiums rather than the 75% contribution required by the CBA, explaining that, for 2006, retirees could purchase Medicare Part D with the resulting savings. For Medicare-ineligible retirees, TRW announced that there would be no increase in the retirees’ premiums for 2006. However, as to both groups, TRW capped indefinitely its plan contribution at the 2006 dollar amount (rather than its previous percentage contribution), explaining that, after 2006, all retiree medical plan participants would be responsible for future inflationary increases in plan costs. The UAW “vigorously object[ed]” to these intended changes and “demand[ed] that TRW retain the current benefits and premiums.” The UAW’s November 1, 2005, correspondence stated that “[p]ursuant to our last collective bargaining agreement, ERISA and the close out agreement between TRW and the UAW, our retiree health insurance benefits are lifetime, vested benefits, which cannot unilaterally be altered at any time.” By letter dated November 11, 2005, TRW -5- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC responded that it would go forward with the changes and would “work with health care providers to hold down escalating costs and manage inflationary increases.” On September 5, 2008, plaintiffs filed a two-count, purported class action lawsuit on behalf of themselves and a class of approximately 924 “similarly situated retirees, spouses, and surviving spouses and dependents” in the United States District Court for the Northern District of Ohio.2 Count I alleged a breach of the Shutdown Agreement, in violation of § 301 of the Labor- Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185. Count II was brought pursuant to § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). Plaintiffs complained that TRW’s modifications provided less coverage to Medicare-eligible retirees and their spouses and dependents, caused dramatic increases in their health care costs, and resulted in their forgoing of medical treatment. Plaintiffs sought damages and lifetime reinstatement of retiree health insurance coverage to pre-January 2006 levels. On January 26, 2009, the district court granted TRW’s motion to dismiss the complaint for failure to state a claim upon which relief could be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held that the CBA unambiguously disclaimed TRW’s obligation to provide plaintiffs with vested health benefits and that the Shutdown Agreement did not enlarge or supplant TRW’s health insurance obligations to plaintiffs. Plaintiffs timely appealed. 2 The complaint was not certified as a class action lawsuit by the district court prior to this appeal. -6- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC II. The complaint asserted two claims: breach of the Shutdown Agreement, in violation of § 301 of the LMRA, and denial of vested health care benefits, contrary to § 502 of ERISA. The district court and the parties agree on three preliminary matters. First, they are in accord that, because ERISA does not require the vesting of rights in health or welfare plans, plaintiffs’ ERISA claim is derivative of their § 301 claim. Second, the parties concur that the sole issue is whether TRW agreed to provide vested health care benefits to plaintiffs. Third, they stipulate that “vesting,” if it occurred, means two things for purposes of this lawsuit: (1) retiree health benefits are available to plaintiffs for life, and (2) TRW’s unilateral modification of those benefits was impermissible. But contrast Reese v. CNH Am. LLC, 574 F.3d 315, 318, 327 (6th Cir. 2009) (holding that even though the CBA granted retirees lifetime health-care benefits upon retirement, it did not resolve the scope of those benefits because “the relevant CBA provisions suggest[ed] that the parties contemplated reasonable modifications”) with Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 578 (6th Cir. 2006) (“If a welfare benefit has vested, the employer’s unilateral modification or reduction of those benefits constitutes a LMRA violation.”) and Sprague v. Gen. Motors Corp., 133 F.3d 388, 400 (6th Cir. 1998) (en banc) (“To vest [welfare] benefits is to render them forever unalterable.”). A. We give fresh review to a district court’s dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Gunasekera v. Irwin, 551 F.3d 461, 465-66 (6th Cir. 2009). Dismissal under Rule 12(b)(6) eliminates a pleading or portion of a pleading that fails to state a -7- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC claim upon which relief can be granted. FED . R. CIV . P. 12(b)(6). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, the complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” In deciding whether to dismiss under Rule 12(b)(6), “[w]e accept all the Plaintiffs’ factual allegations as true and construe the complaint in the light most favorable to the Plaintiffs.” Gunasekera, 551 F.3d at 466 (citations and internal quotation marks omitted). However, to survive dismissal, the complaint must contain enough facts to establish a “plausible,” as opposed to merely a “possible,” entitlement to relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 570 (2007)). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 129 S. Ct. at 1949. Finally, a district court’s consideration of documents that are central to the plaintiffs’ claims and to which the complaint refers and incorporates as exhibits is proper when assessing a Rule 12(b)(6) motion. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). B. In this appeal, plaintiffs contend that the CBA did not unambiguously impose a durational limit on retiree medical benefits. TRW counters that plaintiffs have forfeited the issue because they did not argue that the CBA was ambiguous before the district court. We agree with TRW that the issue is forfeited. In their response in opposition to TRW’s motion to dismiss, plaintiffs did not challenge the principal basis upon which TRW sought to dismiss their complaint – that the CBA unambiguously afforded plaintiffs no right to retiree medical benefits -8- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC beyond its expiration date. Instead, plaintiffs relied solely upon the Shutdown Agreement to support their entitlement to vested medical benefits. Central to the district court’s analysis was plaintiffs’ lack of argument, and therefore their implicit concession, cf. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (holding that, in a civil action, a party’s silence – its refusal to testify – in response to probative evidence offered against it permits an adverse inference), that the CBA did not confer upon them an absolute right to medical benefits beyond its term: Plaintiffs do not assert that the statement in the Retiree Medical Benefits clause in the CBA providing, “This clause shall not be construed to convey any rights to those beyond the term of this agreement” is ambiguous. Plaintiffs, therefore, agree that the language limited retiree healthcare benefits to the term of the 1997 CBA and, accordingly, the benefits were not vested. And, the CBA provided, under the “term” clause, that “either party may terminate any provision” after the CBA’s expiration. Based on this language, defendant had no obligation to provide retiree benefits after the CBA expired. It is well-established that issues not presented to and considered by the district court are generally not preserved for appeal. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008). This rule (1) allows the district court to perform its important role of considering issues in the first instance, thereby “eas[ing] appellate review” and (2) “ensures fairness to litigants by preventing surprise issues from appearing on appeal.” Id. To consider for the first time in this appeal plaintiffs’ newly raised challenge to TRW’s and the district court’s interpretations of the CBA’s language would subvert both of these policies. We therefore deem the issue forfeited. Assuming arguendo that the issue was properly preserved, we do not share plaintiffs’ view that the CBA is ambiguous. The operative language – “[t]his clause shall not be construed to convey any rights to those beyond the term of this agreement” which concluded the “Retiree Medical -9- No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC Benefits” section of the CBA – unambiguously disclaimed TRW’s obligation to provide retiree medical benefits beyond the CBA’s term. The CBA defined “term” as its expiration date. In this way, the operative provision functioned as a specific durational limit on retiree medical benefits. See, e.g., Am. Fed’n of Grain Millers v. Int’l Multifoods Corp., 116 F.3d 976, 981 (2d Cir. 1997) (holding that a durational clause providing that “retiree medical benefits could not be reduced ‘[d]uring the term of this Agreement’” did not establish a vested right to medical benefits because “[p]romising to provide benefits for a certain period of time necessarily establishes that once that time period expires, the promise does as well.”); Bittinger v. Tecumseh Prods. Co., 83 F. Supp. 2d 851, 858, 860 (E.D. Mich. 1998), aff’d per curiam, 201 F.3d 440 (6th Cir. 1999) (unpublished) (holding that a durational clause providing that “[t]he company has established an Insurance Plan for employees covered by this Agreement and this Plan shall remain in effect for the duration of the [CBA] without costs to said employees” . . . “expressly limit[ed] the provision of retiree benefits to the duration of the [CBA].”); UAW v. Cleveland Gear Corp., No. C83-947, 1983 WL 2174, at *2 (N.D. Ohio Oct. 20, 1983), aff’d, 746 F.2d 1477 (6th Cir. 1984) (unpublished table mem.) (holding that a durational clause providing that “‘[t]he Insurance Agreement and Insurance Plan, as revised, shall be effective as provided therein and shall remain in full force and effect during the term of this collective bargaining agreement’ . . . clearly demonstrate[d] the intent of the parties to restrict to the term of the [CBA] the specific insurance benefits contained in the Insurance Agreement and Insurance Plan.”). - 10 - No. 09-3214 Harps, et al. v. TRW Automotive U.S. LLC In contrast to the above-cited cases in which a plausible argument could be made that the durational clauses were ambiguous because they were silent about what rights, if any, would exist when the CBAs expired, the durational clause at issue here was forward-looking. It disclaimed any obligation “to convey any rights to those beyond the term of this agreement[,]” thereby rendering plaintiffs’ assertion of ambiguity and claim to vested benefits implausible. (Emphasis added.) While maintaining that the above-cited cases are distinguishable or of questionable continuing validity, plaintiffs cite no authority construing similar language to provide vested benefits. C. Plaintiffs also argue, as they did below, that the Shutdown Agreement by itself or in conjunction with the CBA, plausibly suggested an intent to provide them with vested medical benefits. After carefully reviewing the record below, reading the parties’ briefs, and considering the arguments made by both parties at oral argument, we are persuaded that the district court properly analyzed this issue and correctly held that the Shutdown Agreement, either by itself or in conjunction with the CBA, did not plausibly suggest that the parties intended to provide plaintiffs with vested retiree medical benefits. Rather than issue a detailed opinion on this issue, which would serve no useful purpose, we adopt the district court’s reasoning set forth in its Memorandum of Opinion and Order dated January 26, 2009. III. We affirm the judgment of the district court. - 11 - 

STATE OF WEST VIRGINIA FILED SUPREME COURT OF APPEALS December 19, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS GARY B. ELLER, OF WEST VIRGINIA Claimant Below, Petitioner vs.) No. 12-0696 (BOR Appeal No. 2046813) (Claim No. 2011014473) XINERGY CORPORATION/RAVEN CREST, Employer Below, Respondent MEMORANDUM DECISION Petitioner Gary B. Eller, by William B. Gerwig III, his attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. Xinergy Corporation/Raven Crest, by Lisa A. Warner Hunter, its attorney, filed a timely response. This appeal arises from the Board of Review’s Final Order dated May 25, 2012, in which the Board reversed a December 27, 2011, Order of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges reversed the claims administrator’s June 1, 2011, decision denying Mr. Eller’s request for authorization for treatment, including surgery, and temporary total disability benefits. The Court has carefully reviewed the records, written arguments, and appendices contained in the petition, and the case is mature for consideration. This Court considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds that the Board of Review’s decision is based upon a material misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. While at work on October 18, 2011, Mr. Eller climbed a berm, tripped, and fell down the other side. On April 1, 2011, the claims administrator held the claim compensable for a right knee contusion. He returned to work two to three days later. After the injury, Mr. Eller’s knee frequently popped, stung, and gave out. On April 3, 2012, Mr. Eller was working on a lawn mower at his home. When he straightened up from a crouched position his knee gave out and he fell. Three days later he visited Dr. Phillip D. Surface who found that Mr. Eller had a bucket 1 handle tear of the medial meniscus. Dr. Surface determined that the meniscus tear was related to the initial compensable injury. It was also Dr. Surface’s opinion that surgery would be necessary to treat the injury. In its decision dated June 1, 2011, the claims administrator denied Mr. Eller’s request for treatment, including surgery, as well as temporary total disability benefits. The claims administrator determined that the injury was not compensable because it happened at Mr. Eller’s home and not in the course of his employment. The Office of Judges concluded that the April of 2012 injury was an aggravation of the October of 2011 injury and was therefore compensable. The Office of Judges used the standards enumerated in Wilson v. Workers’ Compensation Commissioner, 174 W.Va. 61, 328 S.E.2d 485 (1984), to arrive at its decision. The Office of Judges found that Mr. Eller’s deposition testimony, that his knee condition remained symptomatic after the October of 2011 injury, was credible. The Office of Judges also relied on Dr. Surface’s evaluation of Mr. Eller’s knee and his determination that the April of 2012 injury was connected to the work-related October of 2011 injury. The Office of Judges ordered the authorization of treatment, including surgery, and temporary total disability benefits as established by appropriate medical evidence. The Board of Review reversed the Office of Judges’ decision on the basis that it was clearly wrong in view of the evidence on the whole record. The Board of Review found that the only compensable condition in this case was the October of 2011 knee contusion. It held that the record contained no evidence that the current treatment, including surgery, was medically necessary and reasonably required to treat the knee contusion. The Board of Review’s decision is based on a material misrepresentation or mischaracterization of the evidentiary record. The only evidence on the record regarding the April of 2012, injury are the reports of Dr. Surface and the accompanying MRI. Dr. Surface found that the April of 2012, injury was related to the compensable October of 2011 injury. He also determined that further treatment and surgery were necessary to treat the injury. There is no evidence on the record to refute his medical opinion. For the foregoing reasons, we find that the decision of the Board of Review is clearly the result of erroneous conclusions of law. Therefore, the decision of the Board of Review is reversed and remanded with instructions to determine the compensability of the April 3, 2011, injury. Reversed and Remanded. ISSUED: December 19, 2013 CONCURRED IN BY: Chief Justice Brent D. Benjamin Justice Robin J. Davis Justice Margaret L. Workman 2 Justice Menis E. Ketchum DISSENTING: Justice Allen H. Loughry II 3 

133 Cal.Rptr.2d 514 (2003) 108 Cal.App.4th 509 Larry HAYWARD, Plaintiff and Respondent, v. VENTURA VOLVO, Defendant and Appellant. Court of Appeal, Second District, Division Six. May 5, 2003. Review Denied July 30, 2003.[*] Pollard Archer Cranert Googooian & Stevens, Michele M. Lambre and James H. Lehr, Beverly Hills, for Defendant and Appellant. Lawrence C. Noble, Ventura, for Plaintiff and Respondent. GILBERT, P.J. Plaintiff bought a car that does not work. He retained a lawyer on a contingency fee to bring an action under the Consumers Legal Remedies Act (Civ.Code, *515 § 1750 et seq.).[1] He prevailed and the court awarded reasonable attorney's fees under the Act. Here we hold that the court is not limited in awarding fees to those incurred by plaintiff under the contingency fee contract. We affirm. FACTS Larry Hayward sued Lars Lundgren Enterprises, Inc., doing business as Ventura Volvo (hereafter "Ventura Volvo"). Hayward alleged that he purchased a used car from Ventura Volvo along with an extended warranty. When the engine needed replacement, Ventura Volvo refused to honor the warranty. A jury awarded Hayward $14,812 compensatory damages and a $29,624 civil penalty against Ventura Volvo for its willful violation of the warranty. (§ 1794, subd. (c).) Hayward moved for an award of attorney's fees pursuant to section 1780, subdivision (d). He requested $103,419 as the reasonable value of his attorney's services. Ventura Volvo objected that the award is limited to the fees actually incurred by plaintiff under the contingency fee contract. The contract between Hayward and his attorney called for no fee beyond the $2,000 retainer if there is no recovery. If there is a recovery, the contract stated that the attorney would be paid "all attorney's fees paid by Defendant plus forty percent (40%) of any civil penalty awarded or offered." Ventura Volvo asserted that Hayward's fee award was limited to $12,000, approximately 40 percent of the $29,624 civil penalty. The trial court rejected Ventura Volvo's argument and awarded Hayward reasonable attorney's fees of $98,000. DISCUSSION Ventura Volvo does not challenge the reasonableness of the amount of attorney's fees awarded. It contends only that section 1780, subdivision (d) limits the fee award to those incurred by plaintiff pursuant to agreement with his attorney. Section 1780, subdivision (d) provides: "The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney's fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiffs prosecution of the action was not in good faith." Ventura Volvo's argument rests on the omission of the word "reasonable" from the statute's provision for fees awarded to a prevailing plaintiff. Ventura Volvo contrasts the first sentence of section 1780, subdivision (d) mandating an attorney's fee award to a prevailing plaintiff, with the second sentence granting discretion to award "[reasonable attorney's fees" to a prevailing defendant. In construing a statute we look first to its language, giving it its usual and ordinary meaning. (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227, 120 Cal.Rptr.2d 795, 47 P.3d 639.) If the language is ambiguous, we may resort to extrinsic sources such as the objects to be achieved and legislative history. (Ibid.) We choose the construction that comports most closely with the apparent intent of the Legislature, with a view toward promoting the general purpose of the statute. (Ibid.) Here section 1760 aids us in construing section 1780. Section 1760 provides: "This title shall be liberally construed and applied to promote its underlying purposes, *516 which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection." Ventura Volvo admits that it has no legislative history to support its interpretation. Nor does it suggest any policy to explain why the Legislature would intend to limit the traditional exercise of the trial court's discretion in setting the amount of fees. The legislative policy to allow prevailing plaintiffs reasonable attorney's fees is clear. Section 1780 provides remedies for consumers who have been victims of unfair or deceptive business practices. (Id., subd. (a); see also § 1770.) The provision for recovery of attorney's fees allows consumers to pursue remedies in cases as here, where the compensatory damages are relatively modest. To limit the fee award to an amount less than that reasonably incurred in prosecuting such a case, would impede the legislative purpose underlying section 1780. Moreover, Hayward's attorney agreed to accept in part "all attorney's fees paid by Defendant[.]" Under Ventura Volvo's theory, because the plaintiff never incurs liability for such fees, the trial court can award none. The practical effect of this interpretation prevents plaintiffs attorneys from agreeing to accept as compensation whatever the court might award. That would clearly not be in the best interest of consumers who are the victims of unfair or deceptive practices. It is true that as a general rule where one part of a statute contains a term, the omission of that term from another part of the statute indicates that the Legislature intended a different meaning. (Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648 657, 98 Cal. Rptr.2d 378.) But the general rule must yield to the express direction of the Legislature. Here section 1760 expressly directs us to liberally construe section 1780 to protect consumers and to provide economical procedures to secure such protection. To do that, we must construe the statute as allowing prevailing consumers reasonable attorney's fees. Nothing in the plain language of section 1780, subdivision (d) compels us to adopt Ventura Volvo's interpretation. To the contrary, clear legislative policy compels an interpretation requiring the trial court to award reasonable fees to the prevailing plaintiff. Although the trial court can consider a contingency fee agreement in determining what is reasonable, it is not bound by the terms of the agreement. (See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096, 95 Cal.Rptr.2d 198, 997 P.2d 511.) The judgment (order) is affirmed. Costs on appeal are awarded to respondent. We concur: YEGAN and COFFEE, JJ. NOTES [*] George, C.J., and Brown, J., did not participate therein. [1] All statutory references are to the Civil Code.

669 N.E.2d 751 (1996) Michael D. GREER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. No. 57A03-9510-CR-333. Court of Appeals of Indiana. July 25, 1996. Transfer Granted October 15, 1996. *753 Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, for appellant-defendant. Pamela Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Office of Attorney General, Indianapolis, for appellee-plaintiff. *752 OPINION GARRARD, Judge. Michael Greer appeals his revocation of probation, alleging that he received ineffective assistance of counsel and that the denial of credit for time served while on home detention as a condition of his probation violates Article I, Section 23 of the Indiana Constitution and the Equal Protection Clause of the United States Constitution. FACTS Greer was convicted of two counts of child molesting as class C felonies and sentenced to concurrent terms of eight years imprisonment on both counts in September of 1991. Greer's convictions were affirmed by a memorandum decision of this court. On October 4, 1993, the trial court granted Greer's petition for sentence modification, suspending the remainder of his sentence and placing him on home detention as a condition of his probation. On April 29, 1994, the trial court modified Greer's sentence and ordered Greer placed in the custody of the Community Residential Correction Center *754 for the remainder of his sentence beginning April 30, 1994. After a hearing on May 24, 1994, the trial court found that Greer had violated a term of his probation by failing to abstain from the use of alcohol. His probation was revoked and he was ordered to serve the remainder of his sentence in the Indiana Department of Correction. Greer received twenty-five days of Class I credit time for the time he was incarcerated in the Community Residential Correction Center. On October 17, 1994, Greer's sentence was again modified. Greer was placed on probation with the condition of home detention and the remainder of his sentence was suspended. In January of 1995, a probation violation report was filed, alleging that Greer had violated the terms of his probation by failing to abstain from the use of alcohol. The report further alleged that Greer's father, with whom Greer had been living, no longer wanted him in the home. On January 6, 1995, the court provisionally revoked the probation pending an evidentiary hearing. A hearing was held on March 7, 1995, and the trial court found that Greer had violated the terms of his probation. Greer's probation was again revoked and he was ordered to serve the remainder of his sentence. On March 13, 1995, Greer filed a pro se motion for credit time, requesting credit for the time he spent on home detention from October 5, 1993 through April 29, 1994 and from October 13, 1994 through January 6, 1995. This motion was denied on March 14, 1995. On June 12, 1995, the trial court granted Greer's petition for permission to file a belated praecipe, which was then filed on this date. DISCUSSION We address the following issues raised by the parties: I. Whether this court has jurisdiction over this appeal due to Greer's failure to timely file a praecipe. II. Whether Greer received ineffective assistance of counsel at the probation revocation hearing. III. Whether the failure to give Greer credit for time served on home detention denied Greer the right to equal treatment under Article I, Section 23 of the Indiana Constitution. IV. Whether the failure to give Greer credit for time served on home detention denied Greer the right to equal protection of the law under the Fourteenth Amendment of the United States Constitution. ISSUE I We first address whether Greer's failure to file a timely praecipe requires us to dismiss his appeal for lack of jurisdiction. An appeal is initiated by the filing of a praecipe in the trial court, and the praecipe must be filed within thirty days of a final appealable order. Ind.Appellate Rule 2(A). The failure to timely file a praecipe is a jurisdictional failure that results in the appeal's dismissal. Moran v. Cook, 644 N.E.2d 179 (Ind.Ct.App.1994). Effective January 1, 1994, the supreme court amended Ind.Post-Conviction Rule 2, permitting a court to grant an appellant leave to file a belated praecipe only if the appellant is seeking a direct appeal of the conviction. Howard v. State, 653 N.E.2d 1389 (Ind.1995). Here, Greer is appealing from his revocation of probation and the denial of his petition for credit time. However, we need not reach the issue of whether the amendment to the post-conviction rules and Howard apply to the situation before us, because the State has waived its right to contest jurisdiction in this appeal. The State failed to object to Greer's belated praecipe at any time prior to filing its brief in this appeal, either at the trial or appellate level. In Byrd v. State, 592 N.E.2d 690 (Ind.1992), the supreme court necessarily determined that the issue was jurisdiction of the particular case and held that the State had waived its right to challenge a belated praecipe. After noting that the State had numerous opportunities to object to the belated praecipe but failed to do so, the court went on to state: It is well settled that Indiana's appellate courts look with disfavor upon issues that are raised by a party for the first time on appeal or in original actions without first *755 raising the issue at first opportunity in the trial court. When the State is a party to a state court proceeding, it, like all parties, must comply with the rules then governing, and its actions, like those of all parties, are subject to scrutiny under principles of waiver and estoppel. [The State's] silence persisted until ... the State filed its motion to dismiss in the appellate court, one day before its brief responding to appellant's brief on the merits was due. At that juncture, the trial court's belated praecipe order remained intact, the record of proceedings had been completed for use on appeal and had been filed, and appellant's brief had been structured and prepared in final form, and duly filed. Because the State did not avail itself of these several opportunities to challenge the availability and regularity of the belated process, it was in no position to make that challenge in its motion to dismiss. Id. at 691-91 (citations omitted). Similarly, by waiting until filing its appellate brief to raise any objection to the filing of a belated praecipe, the State has waived the right to make its challenge in this case. ISSUE II Greer contends that he was denied effective assistance of counsel at the probation revocation hearing. Reversal for ineffective assistance of counsel is appropriate only in cases where a defendant shows both that counsel's performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced the defendant as to deprive him of a fair trial. King v. State, 642 N.E.2d 1389, 1391-92 (Ind.Ct.App.1994). More specifically, the defendant must show that there is a "`reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Madden v. State, 656 N.E.2d 524, 527-28 (Ind.Ct.App.1995), trans. denied, quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). The evidence against Greer at the revocation hearing consisted solely of the testimony of his probation officer, Mel Glick. Glick testified that Greer's father had stated that Greer had consumed alcoholic beverages and that he no longer wanted Greer living at his house. Glick further testified that, after the filing of the violation report, he spoke with Greer and Greer admitted consuming alcoholic beverages. Greer's attorney failed to object to Glick's testimony. First, we address Glick's testimony regarding Greer's father's statements. Clearly, this testimony constituted hearsay, an out-of-court statement offered into evidence to prove the truth of the matter asserted. Ind.Evidence Rule 801(c); Arndt v. State, 642 N.E.2d 224, 227 (Ind.1994). The State argues that hearsay evidence is admissible in probation revocation hearings pursuant to Evid.R. 101(c)(2), which states that the Indiana Rules of Evidence do not apply to "[p]roceedings relating to ... probation...." However, Evid.R. 101(a) states that, if the rules do not cover a specific evidence issue, common or statutory law shall apply. While it is true that a probation revocation hearing is in the nature of a civil proceeding and that probationers are thus not entitled to the full array of constitutional rights afforded at trial, we must conclude that the intent of the Rules of Evidence is not to completely eliminate all evidentiary rules in a probation revocation proceeding. As noted in Payne v. State, 515 N.E.2d 1141 (Ind.Ct.App.1987), the hearsay rule applies in civil proceedings, and we can see no rationale for treating a probationer with less deference than a civil litigant. Id. at 1144. We conclude that the hearsay rule applies in a probation revocation hearing. The State does not offer, and we are not aware of, any applicable hearsay exceptions. Thus, Greer has demonstrated that, had a proper objection been made, the objection should have been sustained. Garrett v. State, 602 N.E.2d 139, 141 (Ind.1992), reh'g denied. Whether or not Greer suffered any harm from the omission depends upon the admission of his own statement to his probation officer. Greer argues that he received ineffective assistance of counsel when his attorney *756 failed to object to the admission of his statement to his probation officer. Greer contends that the State was required to prove beyond a reasonable doubt that Greer was advised of his Miranda[1] rights and that he knowingly and voluntarily waived those rights in giving his statement to his probation officer. The failure to object to testimony regarding a defendant's statement taken without Miranda warnings waives any error. Banks v. State, 578 N.E.2d 667, 668 (Ind. 1991); Whitehead v. State, 511 N.E.2d 284, 292 (Ind.1987), cert. denied, 484 U.S. 1031, 108 S.Ct. 761, 98 L.Ed.2d 773 (1988). In alleging that his counsel was ineffective in failing to object, Greer must show that, had a proper objection been made, it would have been sustained. Garrett, 602 N.E.2d at 141. He has failed to do so. Initially, we note that a probation officer is not required to give Miranda warnings when the probationer is not in custody, the interrogation is reasonably related to the officer's duty to supervise the probationer, and the questioning is reasonable under all the circumstances. Alspach v. State, 440 N.E.2d 502, 505 (Ind.Ct.App.1982). Here, the probation officer testified that he went to the jail to question Greer, and the court's order of January 6, 1995 reflects that Greer was to be remanded to the custody of the Shelby County Sheriff's Department and, subsequently, the Noble County Sheriff's Department. Thus, Greer has shown that he was in custody at the time of the statement. However, Greer's remaining argument is that "the State, whose burden it was to prove that Greer had been informed of and had knowingly and voluntarily waived his Miranda rights, presented no evidence, whatsoever, to establish that Glick read the Miranda rights to Greer or that Greer had knowingly and voluntarily waived those rights." (Brief of appellant at 34). This miscasts the error Greer is attempting to argue. Greer's attorney did not object to Glick's testimony. In the absence of an objection, the State did not have the burden to affirmatively establish that Greer was informed of and voluntarily waived his Miranda rights. Banks, 578 N.E.2d at 668; Whitehead, 511 N.E.2d at 292. For all we know, the proper advice was given and, knowing this, counsel saw no value in raising an objection. The burden falls to Greer, in his attempt to prove ineffective assistance of counsel, to demonstrate that an objection would have been sustained. Greer's assertion that the State failed to present evidence that Miranda warnings were given and that Greer knowingly and voluntarily waived those rights and made his statement is insufficient. As Greer has failed to allege or show by affidavit that he in fact did not receive his Miranda warnings or that he did not knowingly and voluntarily waive them, he has failed to show ineffective assistance of counsel. See Marshall v. State, 621 N.E.2d 308, 321-22 (Ind.1993) (appellant's failure to state what offer to prove should have been cannot show ineffective assistance based upon failure to make the offer to prove); Fugate v. State, 608 N.E.2d 1370, 1373 (Ind.1993) (appellant's failure to provide affidavit showing substance of witness's testimony negates ineffective assistance claim based upon counsel's failure to call witness at trial). ISSUE III Greer next argues that the application of Ind.Code § 35-50-6-6(a), which does not allow credit time to accrue for a person on parole or probation, violates Article I, Section 23 of the Indiana Constitution. Greer contends that there is no substantial, nonarbitrary reason to treat persons imprisoned on home detention as a condition of probation differently than other persons who are imprisoned. A person on probation may be ordered to undergo home detention as a condition of probation. I.C. §§ 35-38-2-2.3(a)(15); 35-38-2.5-5(a). Additionally, Indiana provides a system by which those imprisoned earn credit time. A person who is imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class I. I.C. § 35-50-6-4(a). A *757 person assigned to Class I earns one day of credit time for each day he is imprisoned for a crime or confined awaiting trial or sentencing. I.C. § 35-50-6-3(a). However, a person does not earn credit time while on parole or probation. I.C. § 35-50-6-6(a). Article I, Section 23 of the Indiana Constitution provides: The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens. In Collins v. Day, 644 N.E.2d 72 (Ind.1994), the supreme court held that the privileges and immunities clause of the Indiana Constitution requires an independent interpretation and application separate from federal equal protection analysis: [W]e hold that Article I, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion. Id. at 80. The court further observed that courts presume a statute to be constitutional and place the burden upon the challenger "to negate every conceivable basis which might have supported the classification." Id. (citation omitted). The court further stated: "Legislative classification becomes a judicial question only where the lines drawn appear arbitrary or manifestly unreasonable. So long as the classification is based upon substantial distinctions with reference to the subject matter, we will not substitute our judgment for that of the legislature...." Id., quoting Chaffin v. Nicosia, 261 Ind. 698, 310 N.E.2d 867, 869 (1974). Id. The court in Barton v. State, 598 N.E.2d 623 (Ind.Ct.App.1992), addressed the issue of whether the denial of credit for time served by probationer in home detention program violated equal protection, and determined that it did not. In analyzing the question of whether this denial constituted cruel and unusual punishment, the court concluded that home detention, as opposed to confinement in jail, is substantially different and clearly a benefit to defendants; thus, there was no cruel and unusual punishment. In examining the equal protection argument, the court found that, because the defendant was on probation while on home detention, he was not similarly situated with a person placed in a community corrections program under I.C. § 35-38-2.6, who would be entitled to time credit, because under this statute a person would not be on probation at the time of placement in the community corrections program. Id. at 624. Thus, the court found no constitutional violation. Greer argues that the result in Barton is abrogated by the supreme court's decision in Capes v. State, 634 N.E.2d 1334 (Ind.1994). It is true that the supreme court held that a defendant serving home detention while awaiting trial is "imprisoned awaiting trial" and is therefore qualified for membership in Class I. Id. at 1334-1335; I.C. § 35-50-6-4(a). However, this does not resolve the question of whether it violates Section 23 to deny credit for time served in home detention as a condition of probation as opposed to granting credit for time served while awaiting trial or sentencing. Greer asserts that the fact that he is on probation is an irrelevant distinction. In fact, it is a crucial distinction. Probation is a "matter of grace and a conditional liberty that is a favor, not a right." Johnson v. State, 659 N.E.2d 194, 198 (Ind.Ct.App.1995), reh'g denied (citation omitted). Further, conditions of probation, within certain parameters, may impinge upon the probationer's exercise of an otherwise constitutionally protected right. Johnson, 659 N.E.2d at 199 (citing United States v. Turner, 44 F.3d 900, 903 (10th Cir.1995) (prohibition against harassing, intimidating or picketing in front of family planning facility was valid condition of probation)); Patton v. State, 580 N.E.2d 693, 698 (Ind.Ct.App.1991), trans. denied. Probation is designed to both produce a law-abiding *758 citizen and protect the public. Patton, 580 N.E.2d at 698. Thus, contrary to the view expressed in Judge Sullivan's separate opinion, we find that Capes is not dispositive; that the status of home detention may sufficiently impinge upon an unconvicted person's liberty interest to require good time credit and, yet, not require the same result when applied against the qualified liberty interest of one on probation or parole. The unique nature of a defendant on probation convinces us that the legislature's decision not to grant credit time to such persons does not violate Section 23. If a person serving pretrial home detention was not given credit for time served, he would serve a longer sentence than a person who posted bond. However, probation is a conditional liberty during which time the defendant is to be concerned with rehabilitation. The legislature's decision to deny a probationer the ability to accrue credit time is rationally related to the goal of deterring criminal behavior while on probation. The unique status of a probationer is a sufficiently distinguishing characteristic to justify the treatment implemented by the legislature. As the "preferential treatment" of earning credit time is uniformly applicable to all persons similarly situated, i.e., all those not on probation, we find no constitutional violation. Moreover, we note that our supreme court has had opportunities to address the issue before us and has failed to find any constitutional error. First, the court did not overrule or even reference the Barton decision in Capes. Further, in Smith v. State, 610 N.E.2d 265 (Ind.Ct.App.1993), vacated in part on other grounds, aff'd. in part 621 N.E.2d 325 (Ind.1993) we held that the denial of "good time" credit while on home detention did not result in a denial of due process or equal protection of the law. The supreme court affirmed this portion of the opinion pursuant to Ind.Appellate Rule 11(B)(3). Smith v. State, 621 N.E.2d 325, 326 (Ind. 1993). In Collins v. State, 639 N.E.2d 653 (Ind.Ct.App.1994), trans. denied, the defendant again objected to the failure to receive credit time for the time served on home detention. While the case does not specifically state what grounds the defendant based his objections upon, the court cited Barton as valid authority and concluded that Capes was distinguishable as it involved pretrial detention. Our supreme court's denial of transfer in this case as well convinces us that Barton is still good law, and our analysis causes us to concur in its decision. Thus, we find that I.C. § 35-50-6-6(a) does not violate Section 23. ISSUE IV Greer finally argues that the denial of credit time for probationers who are on home detention as a condition of probation violates the Equal Protection Clause of the Fourteenth Amendment. We again note our agreement with the resolution of this issue as determined in Barton: Equal protection of the laws does not mandate similar treatment for those individuals who are not similarly situated. As persons who are placed in community corrections programs under Ind.Code § 35-38-2.6 are not on probation at the time of placement (cf. placement under Ind.Code § 35-38-2-2.3(a)(3)), they are not similarly situated to appellant whose home detention was a condition of probation. Barton, 598 N.E.2d at 624 (citations omitted). However, Greer argues that a strict scrutiny standard should be applied under federal equal protection analysis because his fundamental right to liberty is burdened by the statute. The threshold question for federal equal protection analysis concerns the level of scrutiny. Indiana Dept. of Environmental Management v. Chemical Waste Management, Inc., 643 N.E.2d 331, 337 (Ind. 1994). Those laws which involve a suspect classification, like race or alienage, and those which burden the exercise of fundamental rights, like reproduction or expression, receive the strictest scrutiny. Id. Strict scrutiny requires the government to show that the law is a necessary means to a compelling governmental purpose and is narrowly tailored to that purpose. Id. "Intermediate" level scrutiny requires an important governmental objective to justify certain classifications, *759 such as gender. Id. Ordinary government activities must only satisfy a rational basis test, which requires merely that the law be "rationally related to a legitimate governmental purpose." Id. (citation omitted). Greer contends that, because I.C. § 35-50-6-6(a) burdens his fundamental right to be at liberty, it must be analyzed under a strict scrutiny standard. In Brown v. State, 262 Ind. 629, 322 N.E.2d 708 (1975), the supreme court held that a statute authorizing credit for presentence confinement affected the fundamental right to be at liberty by denying retroactive application. Greer argues that, as Capes concluded that pretrial home detention is imprisonment for the purpose of credit time, I.C. § 35-50-6-6(a) burdens his fundamental right to be at liberty by denying credit time for the period he was on home detention as a condition of his probation. We again find the fact that Greer was on home detention as a condition of his probation to be determinative. By virtue of two convictions of the crime of child molesting, Greer has forfeited his right to liberty during the eight years to which he was sentenced. The probationary period is a privilege which was conditionally granted to Greer. While on probation, the purpose of home detention is not to operate as imprisonment but, rather, to operate as a condition of probation in order to achieve the probationer's rehabilitation as a productive member of society. Thus, as the purpose of home detention is not imprisonment but rather a condition of probation, the denial of credit time is not burdening Greer's right to liberty. See Johnson, 659 N.E.2d at 199 (conditions of probation may impinge upon the probationer's exercise of an otherwise constitutionally protected right); Beanblossom v. State, 637 N.E.2d 1345, 1348 (Ind.Ct.App.1994), trans. denied (given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty). As Greer has failed to show that the statute at issue burdens his fundamental right to liberty, we apply the rational basis test: to survive equal protection analysis, the statute must be rationally related to a legitimate governmental purpose. Indiana Dept. of Environmental Management, 643 N.E.2d at 337. Probation is concerned with both the rehabilitation of the probationer and the protection of society. See Dulin v. State, 169 Ind.App. 211, 346 N.E.2d 746, 750 (1976), quoting United States v. Rushlow, 385 F.Supp. 795, 797 (S.D.Cal.1974), aff'd 541 F.2d 287 (9th Cir.1976). The legislature's decision not to allow a probationer to accrue credit time is rationally related to the goal of deterring criminal behavior while on probation, thus serving both the purposes of rehabilitation and protection of society. We conclude that this statute does not violate the Fourteenth Amendment. Judgment affirmed. SULLIVAN, J., concurs in part and dissents in part with separate opinion. HOFFMAN, J., dissents with separate opinion. SULLIVAN, Judge, concurring and dissenting in part. With respect to Issue I, I agree that the State has waived the issue of a belated praecipe. I note, however, that the conclusion that failure to file a timely praecipe is a "waivable" defect implies that such failure does not render the appeal defective for lack of subject matter jurisdiction, since lack of subject matter jurisdiction is an issue which can be raised at any time, including for the first time on appeal. See In re Adoption of H.S. (1985) Ind.App., 483 N.E.2d 777, 780. Further, if such failure to file a timely praecipe resulted in our not obtaining subject matter jurisdiction, we would raise this matter sua sponte even had the State never brought the issue to our attention. Id. Thus, while Greer's failure to file a timely praecipe is a "jurisdictional" defect, the defect that results must necessarily be one of jurisdiction over this particular case. See Sanders v. Carson (1995) Ind.App., 645 N.E.2d 1141, 1145 ("Jurisdiction of a particular case refers to the right, authority, and power to hear and determine a specific case within that class of cases over which a court has subject matter jurisdiction."). Judge Garrard's lead opinion in citing to Byrd v. State here agrees that the issue involves jurisdiction of the particular case. This distinction, *760 though of longstanding and unquestioned stature within our system of appellate review, has resulted in confusing and often contradictory language in our decisions and those of our supreme court. Compare Byrd v. State (1992) Ind., 592 N.E.2d 690, 691-92 (holding that State had waived issue of whether appellant could file belated praecipe) and Soft Water Utilities v. LeFevre (1973) 261 Ind. 260, 301 N.E.2d 745 (permitting trial court to retroactively post-date ruling on motion to correct errors in order to permit otherwise untimely praecipe to be filed) with Claywell v. Review Bd. (1994) Ind., 643 N.E.2d 330 (citing Sears, Roebuck & Co. v. Hutchens (1973) 260 Ind. 561, 297 N.E.2d 807 for proposition that, "where an appellant fails to file a timely praecipe, the Court of Appeals has `no choice' but to dismiss") and Jennings v. Davis (1994) Ind.App., 634 N.E.2d 810 (holding that, when praecipe is not filed within thirty days, "we must dismiss the appeal") (emphasis supplied). In Claywell, our supreme court, while holding that the failure to file an assignment of errors results in dismissal of the appeal,[2] approvingly acknowledged the doctrine that, in "rare and exceptional circumstances", an appellate court may hear a case notwithstanding failure to comply with the jurisdictional prerequisites to review. 643 N.E.2d at 331 (citing Lugar v. State ex rel Lee (1978) 270 Ind. 45, 46-7, 383 N.E.2d 287, 289). In my view, the teaching of Lugar can best be understood as acknowledging that the failure of a particular litigant, whose case otherwise falls within the purview of our jurisdiction, to comply with our appellate rules does not result in our failure to obtain subject matter jurisdiction, but rather, jurisdiction over the particular case. Subject matter jurisdiction addresses the nature or class of cases which a court may hear, while jurisdiction over the case addresses the prerequisites a particular litigant must follow in order to proceed in a particular court. See generally Mann v. Mann (1988) Ind.App., 528 N.E.2d 821, 822. There is no doubt that we have jurisdiction over the nature or class of cases within which Greer's appeal falls. See Ind. Appellate Rule 4(B) (providing that, except for specifically enumerated areas, Court of Appeals has general appellate jurisdiction).[3] Thus, Greer's failure to file a timely praecipe does not deprive us of jurisdiction over the subject matter of his appeal, but rather, of jurisdiction over his particular case. Therefore, because the jurisdictional defect was one of jurisdiction over the case, the State was required to raise it at the earliest opportunity, on penalty of "waiving" its "waiver" argument.[4] Judge Garrard's lead opinion also cites Howard v. State (1995) Ind., 653 N.E.2d 1389 for the proposition that the belated praecipe countenanced under Indiana Post Conviction Rule 2 has reference only to direct appeals from a conviction. Such holding may well be read to preclude the filing of a belated praecipe under P.C.R. 2 as a vehicle to appeal denial of a P.C.R. 1 petition. However, the holding does not preclude belated appeals from matters wholly extraneous to the validity of the basic conviction and the sentence imposed upon that conviction. For this reason, I perceive that consideration of the merits of a challenge to a probation revocation may be obtained, under certain circumstances, notwithstanding a praecipe which was not timely. With respect to Issue II, I concur with the lead opinion's treatment of the applicability of the hearsay rule in a *761 probation revocation proceeding. As to the lead opinion's treatment of Greer's argument that he received ineffective assistance of counsel because of counsel's failure to object to the admission of Glick's testimony regarding Greer's admission that he had used alcohol, I concur in result. It appears that, not only does Greer fail to "allege or show by affidavit", Slip Op. at 8, that he did not receive his Miranda warnings, he also does not allege or argue on appeal that he was procedurally precluded from doing so. Thus, there is no reason for us to believe that Greer is actually contesting whether he received his Miranda warnings, and no reason to think that, even had such an objection been made by his trial counsel, the outcome of a hearing might have been favorable to Greer. I must respectfully dissent, however, from Judge Garrard's conclusions as to Issues III and IV. These issues involve the respective "equal protection" provisions of the Indiana and United States Constitutions. For purposes of the discussion here, there is no reason to differentiate between the two, because I conclude that denial of home detention credit constitutes unlawful discrimination against one segment of the class of persons which is deemed to be "imprisoned". In Capes v. State (1994) Ind., 634 N.E.2d 1334, our Supreme Court clearly and unmistakably held that a person under home detention is "imprisoned" for purposes of entitlement to credit against his sentence. Home detention, therefore, whether awaiting trial, or as a condition of probation, is therefore imprisonment for sentencing credit purposes just as is incarceration in a secure facility following conviction. The Supreme Court in Capes, did not see fit to differentiate among various "imprisonments" according to the degree of isolation or the severity of the treatment. It is perhaps accurate to say that the legislative intendment of I.C. XX-XX-X-X at the time of enactment was to prohibit the earning of credit against the sentence for those on probation or parole. However, in 1976, at the time of enactment, home detention as a means of incarceration during probation was not in use. Home detention was not legislatively created or recognized until 1988 with the enactment of I.C. 35-38-2.5. The General Assembly has chosen not to clarify its intended application of I.C. XX-XX-X-X in light of modern uses of forms of "imprisonment" whether as a term of probation or otherwise. Nevertheless, whether a person is in the status of a probationer or not, if he is on home detention, he is "imprisoned" for purposes of earning credit against his sentence. So saith our Supreme Court, Capes, supra. To deny credit against the sentence to one who is upon probation but is nevertheless imprisoned on home detention, yet grant credit to one who is upon home detention while awaiting trial, Capes, supra, or to one who is imprisoned in a maximum security penal facility, see I.C. XX-XX-X-X, or to one who is in a minimum security release program such as work release, I.C. 11-10-8, is to deny equal application of the law. If only some of the class of imprisoned persons, i.e., probationers, are denied credit for time served on home detention, such constitutes a denial of equal protection.[5] I would hold that to the extent that I.C. XX-XX-X-X denies credit time to a probationer while upon home detention, it is unconstitutional. Accordingly, although I would affirm the revocation of Greer's probation, I would remand for reconsideration of the credit to be given for the time served while upon home detention. HOFFMAN, Judge, dissenting. I respectfully dissent. As noted by the majority, leave to file a belated praecipe is permitted only when a direct appeal is taken from a conviction. I do not agree that the decision in Byrd v. State, 592 N.E.2d 690, 691-692 (Ind.1992) is controlling. Byrd was decided in 1992 prior to the rule change. The version of the rule in effect at the time *762 Byrd was decided did not confine consideration to appeals from convictions. The appeal from a probation violation is not a direct appeal from a conviction. The State could not waive the right to contest jurisdiction, where as here the rule does not confer any jurisdiction. The timely filing of a praecipe is a jurisdictional matter and an absolute precondition to an appeal. Board of Com'rs of Lake County v. Foster, 614 N.E.2d 949, 950 (Ind.Ct.App.1993). The failure to timely file the praecipe is fatal to Greer's purported appeal from a probation violation. I would dismiss the appeal. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] Effective February 1, 1996, our supreme court amended the appellate rules so that an assignment of errors is no longer a prerequisite to appellate review. See Ind. Appellate Rule 4(C), 7.2(A)(1) (1996). [3] By comparison, of course, we would not have subject matter jurisdiction over Greer's appeal if he were appealing a death sentence, since that is a class of criminal appeals over which our supreme court has exclusive appellate jurisdiction. See Ind. Appellate Rule 4(A)(7) (providing that supreme court has exclusive jurisdiction over appeals from cases in which the death penalty has been imposed). Thus, if such an appeal were presented to us, we would be powerless to do anything other than dismiss such a case even if the State failed to make a jurisdictional argument. [4] In this regard, therefore, I agree with Judge Garrard's opinion to the effect that we need not decide the applicability of Ind. Post-Conviction Rule 2 to Greer's case, since, due to the State's waiver, we may consider Greer's appeal irrespective of the rule's applicability to an appeal from revocation of probation. [5] In achieving success upon an equal protection argument, a post conviction home detainee may kill the goose that laid the golden egg. It is conceivable that the General Assembly might determine, in its eminent wisdom, that equal application of the laws to all who are imprisoned, is to be achieved by abolishing any credit for time served.

147 Ariz. 508 (1985) 711 P.2d 647 Gary PATCHELL, Petitioner, v. The STATE of Arizona, and the Superior Court of the State of Arizona, In and For the County of Pima, and the Honorable John Hawkins, a Judge Thereof, Respondents, and The STATE of Arizona, Real Party in Interest. No. 2 CA-SA 0292. Court of Appeals of Arizona, Division 2, Department A. November 7, 1985. Alpert, Fein & Hameroff, P.C. by Donn S. Alpert, Tucson, for petitioner. Stephen D. Neely, Pima County Atty. by Alan Davidon, Tucson, for real party in interest. OPINION BIRDSALL, Presiding Judge. In this special action, we are called upon to determine the validity of Arizona's "use immunity" statute, A.R.S. § 13-4064, under the Arizona Constitution. Because the issue presented is one of first impression, is narrowly framed, and is of statewide importance, we accept jurisdiction. For the reasons set forth below, however, we deny relief. On June 21, 1985, petitioner was subpoenaed to testify before the Pima County grand jury. He appeared but refused to testify, asserting his Fifth Amendment privilege against self-incrimination. The state then requested the superior court to grant the petitioner use immunity and order him to testify pursuant to A.R.S. § 13-4064.[1] Following a hearing on August *509 14, at which petitioner raised his constitutional objections to that statute, the state's request was granted. Pursuant to the court's order, petitioner again appeared before the grand jury on September 4, but he again refused to testify on Fifth Amendment grounds. He was brought before the court the same day, found in contempt, and committed to the county jail until he purged himself of the contempt.[2] In his petition for special action to this court, petitioner argued that § 13-4064 was beyond the power of the legislature to enact and contravened the provisions of the Arizona Constitution pertaining to the privilege against self-incrimination and transactional immunity, as well as the Due Process, Equal Protection, and Privileges and Immunities provisions of both the state and federal constitutions. The difference between use and transactional immunity is: "`Use immunity' prohibits witnesses' compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness; on the other hand, `transactional immunity' affords immunity to the witness from prosecution for offense to which his compelled testimony relates." Black's Law Dictionary 677 (5th ed., 1979). At oral argument petitioner withdrew all claims except those pertaining to the authority of the legislature to enact the use immunity statute. We therefore address only that issue. Petitioner notes initially that the Arizona Constitution, as originally enacted, contained not only a prohibition against compulsory self-incrimination, Ariz. Const. Art. 2 § 10, but also a limited exception to that prohibition, Ariz.Const. Art. 2 § 19. This latter section provides: "Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with bribery or illegal rebating, shall not be excused from giving testimony or producing evidence, when legally called upon to do so, on the ground that it may tend to incriminate him under the laws of the State; but no person shall be prosecuted or subject to any penalty or forfeiture for, or on account of, any transaction, matter, or thing concerning which he may so testify or produce evidence." Thus, the government may compel incriminatory testimony in bribery and illegal rebating cases, but only upon a grant of complete immunity from prosecution, i.e., transactional immunity. Petitioner argues that because the drafters of the constitution specifically provided for a certain type of immunity (transactional as opposed to use immunity) and only with regard to certain designated offenses, the legislature has no authority to enact a statute providing for any other type of immunity or permitting immunity for compulsory testimony with regard to any other offenses. We disagree. It has long been settled that "the power of the legislature is plenary and unless that power is limited by express or inferential provisions of the Constitution, the legislature may enact any law which in its discretion it may desire." Whitney v. Bolin, 85 Ariz. 44, 47, 330 P.2d 1003, 1004 (1958); see also Harris v. Maehling, 112 Ariz. 590, 545 P.2d 47 (1976). The fact that the constitution contains a self-executing provision on a particular subject, such as this one, does not prevent the legislature from acting on the same subject, so long as its statutes are "in harmony with the spirit of the constitution." Roberts v. Spray, 71 Ariz. 60, 69, 223 P.2d 808, 814 (1950). We see no conflict between the cited provisions of the constitution and A.R.S. § 13-4064. We find that the latter statute is indeed in *510 harmony with the purpose behind the enactment of Article 2, § 19. Petitioner refers us to the minutes of the drafting committee in support of his contention that the drafters intended to limit the grant of immunity. While it is true that the original proposal to permit immunity in all cases was amended to restrict its applicability only to the offenses enumerated, the amendment arose out of the concern of the drafters that the broad availability of immunity would produce conspiracies among co-defendants which would preclude prosecution of the more culpable, or perhaps preclude prosecution altogether. This concern is clearly addressed by the provisions of § 13-4064 which authorize only use, as opposed to transactional, immunity and which leave the determination of the propriety of the grant of immunity to the collective discretion of the prosecutor and the court. Although the practice of granting immunity from prosecution in exchange for compelled incriminating testimony predates the constitution, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the concept of use immunity is of relatively recent origin. While consonant in principle with the Fifth Amendment prohibition against compulsory self-incrimination, it does not preclude prosecution of the witness other than on the basis of his testimony or evidence derived therefrom. Further, by committing the decision whether to grant immunity to the prosecutor in the first instance and then to the court, the legislature has ensured that an appropriate determination will be made as to whether the public interest is best served by exchanging use immunity for testimony. See State v. Buchanan, 110 Ariz. 285, 518 P.2d 108 (1974). The enactment of this legislation is clearly not prohibited by the constitution. Because we find the use immunity statute to be consistent with the purposes behind Article 2, sections 10 and 19, we deny relief. HOWARD and FERNANDEZ, JJ., concur. NOTES [1] A.R.S. § 13-4064 provides: "In any criminal proceeding before a court or grand jury, if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby and if the prosecuting attorney, in writing, requests the court to order that person to answer the question or produce the evidence, the court may so order and that person shall comply with the order. When the court denies such a request, the court shall state its reasons for denial in writing. After complying, such testimony or evidence, shall not be used against the person in any proceeding or prosecution for a crime or offense concerning which he gave answer or produced evidence under court order. However, he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order. If a person refuses to testify after being granted immunity and after being ordered to testify as aforesaid, he may be adjudged in contempt and committed to the county jail. If the grand jury before which he was ordered to testify has been dissolved, he may then purge himself by testifying before the court." [2] Oral argument in this matter, which was heard on October 22, was delayed at the behest of the petitioner.

734 P.2d 729 (1987) STATE INDUSTRIAL INSURANCE SYSTEM, Appellant, v. Kelleen PORTER (Ferguson) and Wayne Newton's Aramus Arabians, Respondents. No. 16923. Supreme Court of Nevada. March 31, 1987. Robert G. Giunta, Associate Gen. Counsel, Darla R. Anderson, Gen. Counsel, Las Vegas, Pamela Bugge, Gen. Counsel, Carson City, for appellant. King, Clark, Gross & Sutcliffe, Gordon Richards, James M. Nave, Appeals Officer, Las Vegas, for respondents. OPINION PER CURIAM: The respondent Porter was employed by Wayne Newton's Aramus Arabians. During the course of Porter's employment, a horse kicked her and the trauma led to a two-month premature delivery of Porter's child, Christopher. Both mother and child incurred medical expenses directly attributable to the industrial accident. In ensuing proceedings pursuant to Nevada's Worker's Compensation Statutes, an appeals officer ordered the SIIS to pay the short-term neonatal medical expenses resulting from the accident. The district court affirmed; this appeal followed. We agree with the district court. We think it evident that where, as here, an industrial accident is found to have resulted in a premature birth, and there are medical expenses directly relating to the premature birth, the working mother is entitled to benefits for the short-term neonatal care of the child that are directly attributable to the premature nature of the birth. Work places present hazards, and a pregnant woman is compelled by the laws of nature to expose her fetus to those hazards. If she is to benefit her employer, both she and her fetus must risk the dangers of the work place. We therefore conclude that the purposes of the Nevada Worker's compensation scheme are in accord with the appeals officer's determination. We find it unnecessary to reach other questions that have been tendered by appellant. Porter has not attempted to claim that the appeals officer's ruling established a right to recover for further care which *730 may hereafter become necessary and which may arguably be related to the accident. Affirmed.

222 Ga. 337 (1966) 149 S.E.2d 799 FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF STATESBORO v. DODD; and vice versa. 23506, 23507. Supreme Court of Georgia. Argued June 13, 1966. Decided July 7, 1966. Allen & Edenfield, Francis W. Allen, George M. Johnston, Pierce, Ranitz & Lee, Edward H. Lee, Stephens, Gignilliat & Abbott, Laurie K. Abbott, for appellant. W. Ward Newton, W. J. Neville, Neville & Neville, for appellee. GRICE, Justice. The petition of a security deed grantor against her grantee, claiming misapplication of fire insurance proceeds and unlawful foreclosure, sought injunction, reformation, damages and other relief. The suit was brought by Mrs. Mary Ruth L. Dodd in the Superior Court of Bulloch County against the First Federal Savings & Loan Association of Statesboro. The defendant appealed the overruling of its renewed general demurrer and also one ground of its renewed special demurrer. The plaintiff cross appealed the overruling of her motion to dismiss all of the defendant's said renewed demurrers. 1. Since, under our appraisal of the record, the question presented by the cross appeal controls this review, we deal with it initially, without the necessity of setting forth the allegations of the petition and its three amendments. One of the grounds of the plaintiff's motion to dismiss the defendant's renewed general and special demurrers asserted that such demurrers addressed themselves to allegations of the plaintiff *338 either previously demurred to and amended by plaintiff without materially changing her cause of action, or to allegations previously demurred to wherein said demurrers were overruled and the law of the case established. This motion is meritorious. At the time of the March 9, 1966, filing of the demurrers thus attacked, the trial court had three times ruled on general and special demurrers of the defendant. On October 15, 1965, it had overruled the defendant's general demurrer and four grounds of its special demurrer to the original petition; on December 17, 1965, it had overruled the defendant's renewed general demurrer and five grounds of its special demurrer to the petition as amended; and on December 30, 1965, it had overruled the defendant's renewed general demurrer to the petition as further amended. We see no useful purpose in examining the materiality of the first and second amendments and determining the exact point at which the law of the case was established. That is not necessary in order to review the plaintiff's motion to dismiss which is directed at the demurrers occasioned by the third amendment. The materiality of that amendment is decisive. Our Code, § 81-1312, provides in material part: "An amendment to a petition ... which materially changes the cause of action ... opens the petition ... as amended, to demurrer ... An immaterial amendment shall not so open the petition." As we evaluate this third amendment it added nothing of substance to the petition as previously amended. This amendment denominated as a trespass certain acts which had already been alleged, recited a larger amount of attorney's fees to be due, and repeated the claim to punitive damages. It was mere elaboration and was not material so as to open the petition to demurrer. Consequently, the law of the case as to the sufficiency of the petition had already been established. See Kelly v. Strouse, 116 Ga. 872 (7), 889-890 (43 SE 280); Johnson v. Ellington, 196 Ga. 846 (4) (28 SE2d 114); Witherspoon v. Roseberry, 221 Ga. 465 (145 SE2d 513). Therefore, the demurrers subsequently filed on March 9, and overruled on March 18, were of no legal consequence. *339 The denial of plaintiff's motion to dismiss the demurrers was erroneous. 2. Furthermore, since such subsequent demurrers were of no legal consequence, the rulings upon them afforded no bases for enumerations of error. Witherspoon v. Roseberry, 221 Ga. 465, supra. Therefore, the appeal must be dismissed. Judgment on cross appeal reversed; appeal dismissed. All the Justices concur.

827 F.2d 246 8 Fed.R.Serv.3d 815 ROTHWELL COTTON COMPANY, a Texas Corporation, Defendant-Appellant,v.ROSENTHAL & COMPANY, a partnership, and FGL CommodityServices, Inc., an Iowa Corporation, Plaintiffs-Appellees. No. 86-1510. United States Court of Appeals,Seventh Circuit. Argued Dec. 4, 1986.Decided Aug. 24, 1987.As Amended on Denial of Rehearing and Rehearing Denied Dec.11, 1987.* 1 John Roberson, Philip T. Powers & Associates, Chicago, Ill., for defendant-appellant. 2 Ralph A. Mantynband, Arvey Hodes Costello & Burman, Chicago, Ill., for plaintiffs-appellees. 3 Before BAUER, Chief Judge, FLAUM, Circuit Judge, and REYNOLDS, Senior District Judge.* 4 REYNOLDS, Senior District Judge. 5 Rosenthal & Company ("Rosenthal") and FGL Commodity Services, Inc., ("FGL"), plaintiffs-appellees, brought an action against Rothwell Cotton Company ("Rothwell"), defendant-appellant, claiming that Rothwell owed Rosenthal and FGL $26,563.74 for a trading deficit in the commodities trading account Rothwell had maintained with Rosenthal and FGL. Rothwell counterclaimed that Rosenthal and FGL had breached various duties owed to Rothwell and had allowed excessive trading in Rothwell's account. 6 Rosenthal moved for summary judgment on the counterclaim on the grounds that, due to a provision in the parties' contract, Rosenthal could not be liable for such misconduct because Rosenthal was merely responsible for executing orders placed and was not responsible for checking the wisdom of those orders. The district judge granted Rosenthal's motion for summary judgment on Rothwell's counterclaim and also denied Rothwell's motion to reconsider that decision, after Rothwell presented Judge Marshall with what it claimed was newly discovered evidence. This appeal followed. RELEVANT FACTS 7 Jimmy Don Rothwell is the president of the Rothwell Cotton Company in Childress, Texas. Larry Jones ("Jones"), a friend of Jimmy Don Rothwell, owns and runs FGL-Childress in Texas. FGL-Childress opened a commodities trading account for Rothwell with FGL in Des Moines, Iowa. FGL and FGL-Childress are separate corporations, though they have a contractual relationship. FGL is a future commissions merchant registered with the Commodities Future Trading Commission, but it is not a member of any exchange. Rosenthal is a clearing member of the major commodities exchanges, and FGL contracted with Rosenthal to have Rosenthal execute orders for all FGL's customers. 8 Rosenthal, in turn, had FGL customers sign an agreement directly with Rosenthal. The agreement signed by Jimmy Don Rothwell on May 13, 1983, was entitled "Introduced Customer Commodity Agreement" ("Agreement"), and it provided in relevant part, at paragraph 12, that Rosenthal would: 9 ... not be responsible or liable whatsoever for any matters relating to sales practices, trading practices or recommendations or any similar or other matter, whether authorized or unauthorized by the undersigned, it being expressly understood, agreed and acknowledged that your sole responsibilities hereunder relate to the execution, clearing and bookkeeping of transactions for the accounts on various exchanges in accordance with the instruction you receive from the introducing broker(s) of the undersigned in accordance with the usual practice and that the undersigned shall look to said introducing broker(s) for any redress with respect to any matter other than your gross negligence or wilful misconduct in executing, clearing and/or bookkeeping transactions for the accounts of the undersigned. 10 Immediately above the signature of Jimmy Don Rothwell, who signed the agreement on behalf of Rothwell, is the warning in upper case that, "AS THIS IS AN INTRODUCED ACCOUNT ROSENTHAL & COMPANY'S ROLE AND LIABILITY IS LIMITED TO EXECUTION AND CLEARING MATTERS. SEE PARAGRAPH 12 ABOVE." Rosenthal provided the district court with an uncontradicted affidavit that this provision was subject to negotiation and did not appear in some other similar accounts. 11 Rothwell alleged that it authorized FGL and Jones to trade on Rothwell's account only in cotton, wheat, and cattle commodities. The agreement between Rothwell and FGL provided that Jimmy Don Rothwell was to approve all trades on Rothwell's account. Jones allegedly engaged in excessive and unauthorized trading in the account which resulted in a loss to Rothwell of $278,000 and an additional $178,000 in commissions. 12 On April 5, 1985, ten months after the original complaint had been filed, the district court granted Rosenthal's motion for summary judgment. The court found that the agreement between Rothwell and Rosenthal properly limited Rosenthal's liability to willful misconduct or gross negligence relating to executing and clearing matters. The court further found that public policy did not prohibit Rosenthal from limiting its liability to its own conduct and that the provision was not unconscionable. Finally, the district court found that Rothwell's allegations and the offered proof failed to establish a case against Rosenthal for a claim upon which it could be sued; namely, clearing and execution of trades. 13 Rothwell waited 1 1/2 months after the district judge's decision on the motion for summary judgment, and then it filed a motion asking the judge to reconsider his decision on the basis of newly-discovered evidence. In support of its motion to reconsider, Rothwell attached the following: (1) deposition testimony of three witnesses, all of whose depositions had been taken at least a month before the district judge's decision; (2) a memorandum Rosenthal had filed in support of its motion for summary judgment more than five months before the judge's decision; (3) a memorandum from a Rosenthal employee that had been produced at a deposition more than a month before the judge's decision; and (4) two decisions of the Commodity Futures Trading Commission, both of which had been rendered more than a year before the judge issued his decision granting Rosenthal's motion for summary judgment. 14 In its reply brief in support of its motion for reconsideration, filed four months after the district court's decision and order, Rothwell attached yet more "newly discovered evidence." The evidence, with the exception of a decision by the Commodity Futures Trading Commission, was either available to Rothwell before the original decision for summary judgment was issued, or it related to dealings between the parties that were not relevant to the questions at issue in the suit. Finally, and more than five months after the district judge's decision, Rothwell filed a supplemental reply brief to which it attached still more "newly discovered evidence," which included some excerpts from a deposition that had just been taken and some commodities trading rules published months before this action was commenced in the district court. 15 The district judge denied Rothwell's motion to reconsider his earlier decision, and he later expressly found that there was no just reason for delay and ordered the clerk to enter final judgment against Rothwell on its counterclaim against Rosenthal. This appeal followed. ANALYSIS 16 This court must decide two questions: (1) Whether the district court properly granted summary judgment on the counterclaim for Rosenthal on the original motion in light of the evidence then before the court; and (2) whether the judge abused his discretion in denying Rothwell's motion to reconsider. The decision of the district court will be affirmed because Rosenthal was entitled to summary judgment on the record presented at the time of the original motion and because the district judge did not abuse his discretion in denying the plaintiff's motion to reconsider his earlier decision. 17 Rothwell argues, as it must, that the district court was wrong as a matter of law in granting Rosenthal's original motion for summary judgment on the counterclaim and abused its discretion in denying Rothwell's motion to reconsider. Rothwell's brief on appeal is mostly an attack on the district court's alleged abuse of discretion in denying the motion to reconsider, with special emphasis on the arguments and evidence Rothwell filed along with its reply brief and supplemental reply brief on the motion for reconsideration. During oral argument, Rothwell downplayed the question of abuse of discretion and added yet another legal theory; that Rosenthal could not have been granted summary judgment on the original record because it had "judicially admitted" that it owed additional duties to Rothwell in an answer to Rothwell's counterclaim.1 18 Conspicuously absent from Rothwell's briefs and arguments on appeal is any justification for Rothwell's failure to raise the arguments or evidence upon which it now relies before the district court granted summary judgment to Rosenthal. 19 The heart of Rothwell's argument on appeal is that the district court's analysis that Rosenthal had only limited duties to Rothwell is contrary to duties assumed voluntarily by Rosenthal and imposed by law. Rothwell argues that Rosenthal is legally responsible for the defalcations of Jones and FGL and that to allow Rosenthal to avoid this duty by contract would be contrary to the public policy of both the United States and Illinois. In addition, Rothwell argues that material issues of fact existed as to Rothwell's claims that the limitation of liability provision was a term of adhesion and that Rosenthal assumed and breached additional duties, beyond those addressed by the parties' contract. 20 Rosenthal emphasizes that all of the evidence or legal authority presented by Rothwell in its memorandum in support of the motion to reconsider could have been presented to the district court before the decision on summary judgment was issued. In fact, much of it was in existence before the lawsuit was even filed. Rosenthal next argues that the district judge was compelled to grant Rosenthal's motion for summary judgment on the counterclaim on the record before him at that time because there were no questions of disputed fact, and the contract the parties had freely entered into limited Rosenthal's liability to matters which were not alleged in the lawsuit, i.e., clearing and executing orders. Rosenthal also contends that Rothwell failed to produce sufficient evidence or legal authority to support its allegation that the limitation of liability provision was a term of adhesion or contrary to public policy. 21 In reviewing the district court's decision granting Rosenthal's motion for summary judgment, this court must consider whether the ruling was correct at a matter of law on the record then before the court. Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir.1983). The district court's denial of Rothwell's motion for reconsideration is subject to an abuse of discretion standard. Planet Corp. v. Sullivan, 702 F.2d 123, 125 (7th Cir.1983). 22 At the time the district court granted Rosenthal's motion for summary judgment on the counterclaim, the record established that Jimmy Don Rothwell, on behalf of Rothwell, had freely entered into a negotiable contract with Rosenthal that limited Rosenthal's liability to matters involving the clearing and execution of trades. The provision limiting Rosenthal's liability was in plain language. An upper-case warning, appearing immediately above Jimmy Don Rothwell's signature, called his attention to the provision. The record established that neither Rothwell nor Larry Jones were agents of Rosenthal and that Rosenthal was a completely separate entity that had no role in deciding either the volume or the wisdom of the trades to be made. 23 Upon that record, and in the absence of any evidence presented by Rothwell that Rosenthal owed any other duties to Rothwell, the district court properly found that the parties' relationship was governed by the contract. Rosenthal's liability under that contract was limited to conduct for which Rosenthal was responsible; to wit, the execution and clearing of trades. Rothwell failed to allege or produce any evidence that Rosenthal had failed to properly perform those duties, and--assuming the limitation of liability provision was valid--Rosenthal was entitled to summary judgment. The district court was also correct in dismissing, upon the record then before it, Rothwell's claim that the limitation of liability provision was void as unconscionable or as a term of adhesion. 24 The contract provision limiting Rosenthal's liability was not contrary to public policy. Rothwell failed to present any legal authority to the district court that Rosenthal could not limit its liability to its own acts. 25 "[I]n the absence of legislative directive to the contrary, exculpatory provisions must be deemed valid and enforceable.... Where the legislature has not acted, an exculpatory clause will be held invalid only if a special social relationship of a semi-public nature is found to permeate the transaction between the parties. Such a relationship has been found to exist in cases involving common carriers ... and employer-employee relationships.... The special social relationship argument has been rejected in cases involving a variety of contracts including business leases ... health club memberships ... and agreements involving stock car racing ... the rental of riding equipment ... and the stabling of horses." 26 First Financial Ins. v. Purolator Security, Inc., 69 Ill.App.3d 413, 26 Ill.Dec. 393, 396-97, 388 N.E.2d 17, 20-21 (1979) (citations omitted). 27 Rothwell did not present the district court with any statutory or case law, Illinois or federal, which prohibited the limitation in the parties' agreement. Apart from any legal barriers to such a provision, there is nothing inherently wrong in allowing the party to a contract to protect himself from liability for the wrongdoing of others. 28 Neither did Rothwell present evidence or authority sufficient to support its claim that the limitation provision was a term of adhesion or unconscionable. This case is easily distinguished on its facts from Star Finance Corp. v. McGee, 27 Ill.App.3d 421, 326 N.E.2d 518 (1975), upon which Rothwell relies. In First Financial, 388 N.E.2d at 22, the court explained that an unconscionable agreement had been defined as one "which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept on the other." (citation omitted). Rothwell has failed to establish the extraordinary circumstances necessary before an Illinois court will find a contract term void as adhesive. 29 Rosenthal established by affidavits and other evidence that the contract was one freely entered into between two competently-run, commercial entities, with the provision in question being open to negotiation, and highlighted by language immediately above the place where Jimmy Don Rothwell signed the agreement on behalf of Rothwell. Jimmy Don Rothwell, meanwhile, swore that he never saw the provision, or attempted to negotiate. Similarly situated parties seeking to void a term as adhesive have been rebuffed by Illinois courts. See, McClure Engineering Assoc., Inc. v. Reuben Donnelley Corp., 101 Ill.App.3d 1109, 57 Ill.Dec. 471, 428 N.E.2d 1151 (Ill.App.3d, 1981), aff'd, 95 Ill.2d 68, 69 Ill.Dec. 183, 447 N.E.2d 400 (1983). Rothwell was neither forced to deal with Rosenthal nor prevented from negotiating the provision. It may not now come to the court, after the fact, and ask it to void a provision into which its president freely entered. 30 The district court correctly granted Rosenthal's motion for summary judgment on the counterclaim on the record then before it. Rothwell failed to present that court with evidence or argument sufficient to establish that the limitation of liability, which was negotiable and prominently mentioned in the contract, was either unconscionable or void against public policy. Rather, and in the absence of evidence that Rosenthal was responsible for either Jones or FGL, it merely limited Rosenthal's potential liability to those actions for which Rosenthal was responsible, and over which Rosenthal had control. 31 The next question is whether the district court abused its discretion in denying Rothwell's motion to reconsider. Planet Corp. v. Sullivan, 702 F.2d 123 (7th Cir.1983). Rothwell's brief is long on support for why summary judgment is not appropriate in light of all the evidence and legal arguments it now presents, but short on explaining why Rothwell should be able to begin presenting those arguments--in waves--almost six weeks after the district court had already ruled against Rothwell. 32 The district court had not yet entered final judgment for Rosenthal at the time Rothwell filed its motion to reconsider, and Rothwell contends the motion is governed by Fed.R.Civ.P. 54(b), which provides that "any order or other form of decision ... which adjudicates fewer than all the claims ... is subject to revision at any time before the entry of judgment adjudicating all the claims...." Rosenthal directs the court's attention to Fed.R.Civ.P. 60(b)(2) which allows the court to relieve a party from an order on the basis of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Both parties agree that in order to prevail on its motion to reconsider, Rothwell must first establish that it could not, through the exercise of due diligence, have presented the "newly discovered evidence" to the district court before the decision on summary judgment was granted. 33 In Keene Corp. v. International Fidelity Insurance Co., 561 F.Supp. 656 (N.D.Ill.1976), aff'd, 736 F.2d 388 (7th Cir.1984), the court gave a helpful summary of the law governing motions to reconsider: 34 Motions for reconsideration serve a limited function; to correct manifest errors of law or fact or to present newly discovered evidence. Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion. The nonmovant has an affirmative duty to come forward to meet a properly supported motion for summary judgment.... Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time. 35 Id. at 665-66 (citation and footnote omitted). 36 The district court did not abuse its discretion in denying Rothwell's motion to reconsider because Rothwell failed to make a showing that it had exercised due diligence in attempting to produce the evidence or argument while the motion for summary judgment was pending. 37 Most of the "newly discovered evidence" Rothwell submitted, along with its three briefs filed in support of the motion to reconsider, was either case law or commodity rules that were in existence before the motion for summary judgment was even filed. Everything submitted with the opening brief on reconsideration was in existence before the original motion was decided, and Rothwell failed to give the trial court or this court any satisfactory explanation as to why the information could not have been produced earlier. Rothwell's argument that some deposition testimony was not yet transcribed, even though the deposition was taken a month before the court's decision, ignores both the possibility of expedited transcription and Fed.R.Civ.P. 56(f). Fed.R.Civ.P. 56(f) provides: 38 When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. 39 Rothwell neither asked the judge for more time or for an order compelling any depositions Rothwell felt relevant to the pending motion. Instead, Rothwell presented the court with information that had been, for the most part, available to Rothwell before the decision was rendered, and did so piece-by-piece, submitting some with each of the three briefs it filed for reconsideration in the more than five month period after the earlier decision. Absent a showing that this resulted for reasons other than a lack of due diligence on the part of Rothwell, Rothwell may not relitigate a motion it already had a chance to contest, and lost. 40 On this record, this court cannot find that the district judge abused his discretion in denying the motion to reconsider. Having found that summary judgment was properly granted to Rosenthal, and that Rothwell failed to make the showing of due diligence necessary to cause the district judge to reconsider,2 the decision of the district judge is Affirmed. * The Order amending this opinion and denying rehearing en banc is published at 835 F.2d 710 * The Honorable John W. Reynolds, Senior District Judge for the Eastern District of Wisconsin, is sitting by designation 1 Consistent with Rothwell's practice in this lawsuit, this argument was not made in either of Rothwell's briefs on appeal or in any of Rothwell's numerous filings in support of its motion to reconsider in the district court. 'Arguments not raised in the briefs are waiver ....' United States v. Hornick, 815 F.2d 1156, 1159 (7th Cir.1987) (citation omitted). Because Rothwell ignored this contention until oral argument, the court will not consider what role, if any, Rosenthal's "judicial admission" played in this action 2 Having decided that Rothwell failed to meet its initial burden of establishing that it had discovered new evidence which could not through the exercise of due diligence have been previously produced, the court does not reach the question of what additional duties, if any, Rosenthal might have owed Rothwell in relation to the transactions at issue

522 F.3d 443 (2008) PHARMACEUTICAL CARE MANAGEMENT ASSOCIATION, Appellant v. DISTRICT OF COLUMBIA and Adrian Fenty, in his Official Capacity as Mayor of the District of Columbia, Appellees. No. 07-7062. United States Court of Appeals, District of Columbia Circuit. Argued March 7, 2008. Decided April 18, 2008. Paul J. Ondrasik, Jr. argued the cause for appellant. With him on the briefs were Martin D. Schneiderman and Linda S. Stein. Robin S. Conrad and Jonathan D. Hacker were the brief for amici curiae America's *445 Health Insurance Plans, et al. in support of appellant. James C. McKay, Jr., Senior Assistant Attorney General, Office of Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Peter J. Nickles, Interim Attorney General, Todd S. Kim, Solicitor General, and Lutz Alexander Prager. Edward E. Schwab, Deputy Attorney General, entered an appearance. Jan A. May, Bruce Vignery, and Michael Schuster were on the brief for amici curiae American Association of Retired Persons, et al. in support of appellee. Stacy J. Canan entered an appearance. Before: RANDOLPH and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge RANDOLPH. *444 RANDOLPH, Circuit Judge: The plaintiff — the Pharmaceutical Care Management Association — is a national trade organization representing pharmacy benefit managers. Pharmacy benefit managers act as "middlemen" hired by health benefit providers (such as employers, health maintenance organizations, and public and private health plans) "to provide prescription drug benefit administration and management services."[1] One important role of a pharmacy benefit manager is to pool health benefit providers and negotiate discounts on pharmaceuticals from manufacturers or pharmacies. See Fed. Trade Comm'n, Pharmacy Benefit Managers: Ownership of Mail-Order Pharmacies 41-60 (2005). A health benefit provider may find it difficult to judge the value of a pharmacy benefit manager's services without information about the relationships between the manager and manufacturers or pharmacies. See Fed. Trade Comm'n & Dep't of Justice, Improving Health Care: A Dose of Competition ch. 7, at 16 (2004). For example, a pharmacy benefit manager could work against the health benefit provider's interest by substituting a more expensive drug than the one prescribed in order to receive a rebate from the manufacturer that is not passed on to — or shared with — the health benefit provider. O'Donnell & Fendler, 40 J. HEALTH L. at 212; see also Pharmacy Benefit Managers at 59 (noting that large pharmacy benefit managers retained between 30 and 65 percent of rebate payments in 2003). The Association brought this action seeking an injunction against the enforcement of the District of Columbia's AccessRx Act of 2004, D.C.CODE § 48-831.01 et seq. Title II of the Act requires, among other things, pharmacy benefit managers to act as fiduciaries, to disclose the content of their contracts with pharmacies and manufacturers, and to pass on any payments or discounts they receive from pharmacies or manufacturers. Id. § 48-832.01(b)-(c). Title II applies to pharmacy benefit managers working with both employee-based and non-employee-based health benefit providers. Id. § 48-831.02(4)(a). Claiming that the Employee Retirement Income Security Act of 1974 (ERISA) preempted Title II and that Title II was otherwise unconstitutional, the Association obtained a preliminary injunction against *446 the enforcement of the District's statute. Pharm. Care Mgmt. Ass'n v. District of Columbia, No. 04-1082 (D.D.C. Dec. 21, 2004). While the District's appeal of the preliminary injunction was pending in this court, the First Circuit upheld a Maine statute that is similar to Title II. Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 297 (1st Cir.2005). Because the Association was the losing party in Rowe, we remanded this case to the district court to consider the preclusive effect of the First Circuit's opinion. Pharm. Care Mgmt. Ass'n v. District of Columbia, 173 Fed. Appx. 3 (D.C.Cir.2006). The District then amended its AccessRx Act of 2004 to conform to the Maine law. AccessRx Clarification Amendment Act of 2006, published as part of the Fiscal Year 2007 Budget Support Act of 2006, 53 D.C.Reg. 6899 (Aug. 25, 2006). In granting summary judgment against the Association, the district court held that the amended AccessRx Act was nearly identical to the Maine law, that the Association had a full and fair opportunity to litigate its claims in Rowe, and that the Association's loss in Rowe precluded it from relitigating those claims in this case. Pharm. Care Mgmt. Ass'n v. District of Columbia, 477 F.Supp.2d 86 (D.D.C.2007). The question on appeal is whether the judicially-created doctrine of collateral estoppel bars the Association's claims. We are concerned with what is known as non-mutual defensive estoppel. This aspect of the doctrine precludes a plaintiff from contesting an issue it has previously litigated and lost in another case against a different defendant. The estoppel here would be non-mutual because if the Association had won its case against the Maine law, the District would not have been barred from defending its identical statute. (To hold otherwise would be to deprive the District of due process — it would not have had its day in court. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 85 L.Ed. 22 (1940).) The preclusion is defensive because the defendant invokes the bar against the plaintiff's claims. Compare Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (offensive), with Blonder-Tongue, 402 U.S. at 330, 91 S.Ct. 1434 (defensive). Even when collateral estoppel would otherwise apply, there are numerous exceptions. Of particular importance in this case is the exception for cases presenting "unmixed questions of law." Collateral estoppel does not apply with the same force to unmixed questions of law as it does to mixed questions of law and fact or to pure questions of fact. See United States v. Stauffer Chem. Co., 464 U.S. 165, 170-71, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984); Montana v. United States, 440 U.S. 147, 162-63, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 69 L.Ed. 262 (1924). Although the Supreme Court has acknowledged that the purpose and application of this exception are not entirely clear, the exception continues to have force. Stauffer Chem. Co., 464 U.S. at 171-72, 104 S.Ct. 575. In cases involving mutual collateral estoppel, the exception applies only if the issue is one of law and the facts of the cases are substantially unrelated. RESTATEMENT (SECOND) OF JUDGMENTS § 28(2)(a); see also Stauffer Chem. Co., 464 U.S. at 171, 173, 104 S.Ct. 575. Less is required for the exception to apply in a case of non-mutual estoppel — such as this case. In a non-mutual case, "an issue is not precluded if it is `one of law and treating it as conclusively determined would inappropriately foreclose opportunities for *447 obtaining reconsideration of the legal rule upon which it was based.'" Chicago Truck Drivers, Union (Indep.) Pension Fund v. Century Motor Freight, Inc., 125 F.3d 526, 531 (7th Cir.1997) (quoting RESTATEMENT § 29(7)). To apply collateral estoppel under these circumstances would prevent the court from performing its function of developing the law. Id. (citing RESTATEMENT § 29 cmt. i). We do not believe collateral estoppel bars the Association's claims. Both parties agree that the issues presented here are legal. To foreclose our reconsideration of the legal issues would not aid judicial economy. See Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). A trade association could readily avoid the estoppel consequence of a loss by having one or more of its members bring the lawsuit. Applying collateral estoppel here would also freeze the development of the law in an area of substantial public interest. See RESTATEMENT § 29 cmt. i. In addition, practical considerations counsel against application of collateral estoppel in this case. Collateral estoppel is generally inappropriate when the issue is one of law and there has been a change in the legal context after the first decision. RESTATEMENT § 28(2)(b); see, e.g., Montana, 440 U.S. at 161, 99 S.Ct. 970; Am. Med. Int'l, Inc. v. Sec'y of HEW, 677 F.2d 118, 120-21 (D.C.Cir.1981); Kania v. Fordham, 702 F.2d 475, 476 n. 2 (4th Cir.1983). After the First Circuit's decision in Rowe, the Department of Labor promulgated a rule requiring ERISA plans to disclose information about their contracts with service providers. Annual Reporting and Disclosure, 72 Fed.Reg. 64,710 (Nov. 16, 2007). In order to facilitate the plans' ability to make these disclosures, the Labor Department has proposed a rule that would require service providers to disclose certain financial information to the plans they serve. Reasonable Contract or Arrangement Under Section 408(b)(2) — Fee Disclosure, 72 Fed.Reg. 70,988 (Dec. 13, 2007). Pharmacy benefit managers are listed among the service providers required to make disclosures, id. at 70,989, and at least some of the information the draft rule requires them to disclose is similar to that required under Title II of the District's AccessRx Act. These developments, particularly if the proposed rule is promulgated, may change the legal analysis regarding ERISA preemption, though we emphasize that we express no opinion on the merits of the preemption issue. For the foregoing reasons, the order granting the District's motion for summary judgment is vacated and the case is remanded for consideration on the merits. So ordered. NOTES [1] Thomas P. O'Donnell & Mark K. Fendler, Prescription or Proscription? The General Failure of Attempts to Litigate and Legislate Against PBMs as "Fiduciaries," and the Role of Market Forces Allowing PBMs to Contain Private-Sector Prescription Drug Prices, 40 J. HEALTH L. 205, 205-07 (2007).

Case: 13-5101 Document: 26 Page: 1 Filed: 11/19/2013 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ NICHOLE MEDICAL EQUIPMENT & SUPPLY, INC., AND DOMINIC ROTELLA, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee. __________________________ 2013-5101 __________________________ Appeal from the United States Court of Federal Claims in No. 12-CV-0364, Senior Judge Eric G. Brug- gink. __________________________ ON MOTION __________________________ ORDER Dominic Rotella moves for leave to proceed in forma pauperis. Counsel for the appellants moves for leave to withdraw as counsel. The court notes that the other appellant, Nichole Medical Equipment & Supply, Inc., was represented by the same counsel and has not paid the docketing fee. Case: 13-5101 Document: 26 Page: 2 Filed: 11/19/2013 NICHOLE MEDICAL EQUIPMENT v. US 2 A corporation may not proceed in forma pauperis. See Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194 (1993) (holding that “only a natural person may qualify for treatment in forma pauperis”). The appellants are jointly responsible for payment of the docketing fee. The court grants counsel’s motion. However, we note that a corporation must be represented by counsel to proceed in this court. See 28 U.S.C. § 1654; Fed. Cir. R. 47.3; Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed. Cir. 1983); see also Rowland, 506 U.S. at 201-02 (1993) ("It has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel."). This requirement may not be waived. New counsel for Nichole Medical Equipment & Supply must enter an appearance on behalf of the corporation. Thus, if Nichole Medical Equipment & Supply, Inc. intends to proceed with this appeal, it must obtain new counsel and the docketing fee must be paid within 30 days. Accordingly, IT IS ORDERED THAT: (1) The motion for leave to withdraw as counsel is granted. (2) Rotella's motion to proceed in forma pauperis is held in abeyance, pending Nichole's notification within 30 days that it has obtained counsel and paid the docketing fee. (2) If Nichole does not obtain counsel and pay the docketing fee within 30 days, the caption will be amended to strike its status as appellant and Rotella's motion for leave to proceed in forma pauperis will be considered. Case: 13-5101 Document: 26 Page: 3 Filed: 11/19/2013 3 NICHOLE MEDICAL EQUIPMENT V. US FOR THE COURT /s/ Daniel E. O’Toole Daniel E. O’Toole Clerk s8 

108 F.3d 56 154 L.R.R.M. (BNA) 2673, 65 USLW 2595,133 Lab.Cas. P 11,779 TELEDYNE ECONOMIC DEVELOPMENT, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.TELEDYNE ECONOMIC DEVELOPMENT, Respondent. Nos. 96-1630, 96-1790. United States Court of Appeals,Fourth Circuit. Argued Jan. 29, 1997.Decided March 6, 1997. ARGUED: Robert B. Cottington, Reed, Smith, Shaw & McClay, Pittsburgh, PA, for Teledyne. Richard A. Cohen, National Labor Relations Board, Washington, DC, for NLRB. ON BRIEF: Peter D. Post, Reed, Smith, Shaw & McClay, Pittsburgh, PA, for Teledyne. Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, DC, for NLRB. Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation. Enforced by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge ERVIN and Judge HILTON joined. OPINION WILKINSON, Chief Judge: 1 This case presents the question of whether the National Labor Relations Board may assert jurisdiction over a private employer whose relationship with its employees is the subject of extensive regulation through a government contract. Teledyne Economic Development challenges an NLRB order requiring Teledyne to bargain with a union representing two groups of Teledyne employees at a Job Corps Center. Teledyne argues that the extensive control exercised by the Department of Labor over the terms and conditions of employment at the Center prohibits the Board from exercising jurisdiction over Teledyne in this case. The plain language of the Act, however, grants the Board the discretion to assert jurisdiction. See 29 U.S.C. §§ 152(2) & 164(c)(1). Accordingly, we enforce the order of the Board in this case. I. 2 Teledyne Economic Development ("Teledyne") operates a Job Corps Center in Pittsburgh, Pennsylvania pursuant to a contract with the United States Department of Labor ("DOL"). The Center's statutory purpose is to train severely disadvantaged youths between the ages of 16 and 24 in order to provide them with the skills to find meaningful employment. 3 Teledyne has operated the Center since its opening in 1971 under a series of competitively bid contracts with the DOL. Under the most recent contract, Teledyne may not increase reimbursable line-item expenses by more than three percent per year. That limit applies to aggregate employee salaries and wages. Additionally, Teledyne may not increase any individual employee's wages by more than 9.9 percent in any year. Within these limits, Teledyne is free to act without DOL approval or input. However, if Teledyne exceeds these limits without DOL approval, it will not be reimbursed. Although Teledyne constructed its own fringe benefits package, the benefit costs had to be approved by the DOL for Teledyne to be reimbursed. In addition, personnel policies must be approved by the DOL, and, once approved, cannot be changed without further DOL approval. Teledyne must also submit any new personnel policies or procedures to the DOL for approval before they may be implemented. 4 On August 7, 1995, the Service Personnel and Employees of the Dairy Industry, Teamsters Local Union No. 205 ("the Union") filed a petition with the NLRB's Pittsburgh Regional Office seeking to represent the instructors and counselors employed by Teledyne at the Center. On August 18, 1995, the Union filed a second petition seeking to represent the Center's licensed practical nurses. Teledyne argued that the Board could not assert jurisdiction over Teledyne's operations because the DOL exercised extensive control over personnel and labor relations matters. 5 The Board's Regional Director issued a Decision and Direction of Election in which he rejected Teledyne's argument, noting that it was no longer the Board's policy to decline the exercise of its statutory jurisdiction based on the considerations raised by Teledyne. Teledyne requested an appeal, which the Board denied on October 5, 1995. 6 Elections took place among the employees in each of the two units on October 6, 1995. A majority of each unit's employees cast ballots in favor of union representation. Accordingly, the Board certified the Union as the exclusive collective-bargaining representative of Teledyne's instructors and counselors and its licensed practical nurses. 7 Following the certifications, Teledyne refused the Union's requests for recognition and bargaining. The Union filed an unfair labor practice charge, and the Board's General Counsel issued a complaint, alleging that Teledyne's refusals to bargain violated sections 8(a)(5) and (1) of the National Labor Relations Act, 28 U.S.C. § 158(a)(5) and (1). Teledyne disputed the validity of the underlying union certifications. The Board issued an order requiring Teledyne to cease and desist from refusing to bargain with the Union. Teledyne filed a petition for review to this court, and the Board filed a cross-application for enforcement. II. 8 Teledyne asserts that it is exempt from coverage by section 2(2) of the National Labor Relations Act. That section exempts from the Act's provisions "the United States or any wholly owned Government corporation, ... or any State or political subdivisions thereof." 29 U.S.C. § 152(2). Prior to 1995, the Board had extended this exemption to private employers providing services for exempt governmental entities where the exempt entity exercised effective control of the primary terms of employment. See Res-Care, Inc., 280 NLRB 670, 1986 WL 53982 (1986). 9 In Management Training Corp., 317 NLRB 1355, 1995 WL 451936 (1995), the Board declared it would no longer apply the Res-Care governmental control test. The Board explained that instead, when election petitions involving private employers who were arguably controlled by exempt entities were filed, it would exercise its statutory jurisdiction to the fullest extent possible. Accordingly, it would thereafter "only consider whether the employer meets the definition of 'employer' under Section 2(2) of the Act and whether such employer meets the applicable monetary jurisdictional standards." Id. at 1358-59. Teledyne possesses the authority to hire, fire, direct, and discipline its employees in accordance with its formulated policies. As a statutory employer, see 29 U.S.C. § 152(2), Teledyne fell within the Board's jurisdiction under the Management Training rule. A. 10 Teledyne first contends that the Board is bound by section 2(2) of the NLRA to extend the governmental exemption to private employers where an exempt governmental entity effectively controls the basic terms of employment. We reserved this issue in ARA Services, Inc. v. NLRB, 71 F.3d 129, 136 (4th Cir.1995), noting that "there exists a question as to the [Management Training rule's] statutory validity."1 We now resolve that question, holding that the Management Training rule is a valid exercise of the Board's discretion under the plain language of the NLRA. 11 We begin our review with the actual language of the exemption in section 2(2) of the NLRA. If a statute's meaning is plain, courts and agencies "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). Section 2(2) of the NLRA exempts from its coverage, and from the Board's jurisdiction, "the United States or any wholly owned Government corporation, ... or any State or political subdivisions thereof." 29 U.S.C. § 152(2). 12 There is nothing ambiguous about this language. By its terms, section 2(2) exempts only government entities or wholly owned government corporations from its coverage--not private entities acting as contractors for the government. When enacting section 2(2), Congress was surely aware that private employers contracted with government entities to provide needed goods and services. Congress could not have intended to compel the Board to decline jurisdiction over private employers based upon constraints that their government contracts might impose upon the collective bargaining process. If it had so intended, it would have exempted private contractors as well as governmental entities from the Act. 13 Congress permitted the Board to exercise broad discretion in deciding whether to exercise its statutory jurisdiction. Section 14(c)(1) of the NLRA provides that the Board, in its discretion, may decline to assert jurisdiction over "any class or category of employers, where, in the opinion of the Board, the effect ... on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction." 29 U.S.C. § 164(c)(1). Where, as in this case, the Board chooses to assert its jurisdiction rather than recognizing an exemption not compelled by section 2(2), the Board is within its authority.2 14 Other courts have recognized that the Res-Care governmental control test which the Board applied prior to the adoption of Management Training was an exercise of the Board's discretion. In NLRB v. Kemmerer Village, Inc., 907 F.2d 661, 663 (7th Cir.1990), the Seventh Circuit noted that the Res-Care control test was "a reasonable systematization of the Board's inherent discretion to allocate its limited resources efficiently." Furthermore, Kemmerer emphasized that the Res-Care rule was not "a rule of law" but rather was a "discretionary doctrine." Id. at 664; see also Human Development Assoc. v. NLRB, 937 F.2d 657, 660 (D.C.Cir.1991). But see Board of Trustees of Memorial Hospital v. NLRB, 624 F.2d 177, 185 (10th Cir.1980); NLRB v. Pope Maintenance Corp., 573 F.2d 898, 902 (5th Cir.1978). 15 So too is the Management Training statutory employer rule a discretionary doctrine. There is nothing to prevent the Board from returning to the Res-Care rule, or any other rule which is a rational exercise of the Board's discretion under the NLRA. We merely hold that the Management Training rule is a permissible exercise of the Board's jurisdiction under the plain language of the NLRA--not that the rule is required by the terms of that statute. 16 Teledyne's argument that it should share the DOL's exemption from the NLRA's coverage because Teledyne acts as a "joint employer" with the DOL must also fail. The Management Training rule expressly disavowed consideration of the degree of control an exempt entity exerts over the employment relations of a private entity. The cases upon which Teledyne relies for its proposed "joint employer" doctrine are merely applications of the Board's then operative governmental control test. See, e.g., Lutheran Welfare Services v. NLRB, 607 F.2d 777, 778 (7th Cir.1979). We have already found the Board's decision to abandon the control test valid under the plain language of the NLRA. Therefore, under Management Training, Teledyne's joint-employer argument has lost whatever relevance it may once have had. B. 17 Teledyne further contends that even if the Management Training rule fits within the language of the NLRA, we should strike down the rule because it is inconsistent with the policies behind the NLRA. Teledyne maintains that the Management Training rule violates the purposes of collective bargaining because the omnipresent possibility of a DOL veto forecloses "effective" bargaining over the terms and conditions of employment. Teledyne argues that, due to the DOL's veto power, it could function only as a middleman between the Union and the DOL. Furthermore, Teledyne raises the possibility that the Union might call a strike if the DOL refused to approve its contract demands. In such a situation, Teledyne argues it would be unable to end the strike because it lacks the authority to institute changes to the terms and conditions of employment without DOL approval. Lastly, Teledyne asserts that union contract demands might lead to the termination of Teledyne's contract with the DOL if the DOL is unwilling to accept the Union's demands when the contract comes up for renewal. 18 The Board responds with its own salvo of policy arguments in support of the Management Training rule. First, the Board argues that if it declined to exercise jurisdiction over employers like Teledyne, it would be consigning the employees of such employers to a no-man's land where they would not be covered by any labor relations statute. Second, the Board disputes Teledyne's claim that it will be unable to engage in "meaningful" bargaining. The Board contends that Teledyne's claim is speculative because it has yet to attempt bargaining; that Teledyne could bargain effectively simply by notifying the Union of the possibility of a DOL veto; and that Teledyne could readily implement agreed-upon terms which the DOL did not disapprove. Third, the Board argues that Management Training represents a bright line rule which is more easily applied than the case-by-case approach of the Res-Care governmental control test. Lastly, the Board dismisses as meritless Teledyne's argument that union demands might cause Teledyne to lose its contract with the DOL. The Board argues that Teledyne is situated no differently than the thousands of private employers who have to take account of the economic pressures of collective bargaining. 19 In the end, these arguments do not indicate that the Board's Management Training rule is irrational or inconsistent with the NLRA. They merely demonstrate that there are policy arguments on both sides of the issue. It is not for the courts, however, to use such arguments to amend Congress' clear statutory mandate from the bench. Whatever reservations we might have about the Management Training rule, Congress has left this particular judgment to the Board's discretion. And, as the Supreme Court has made clear, we are not to "substitute our judgment for those of the Board with respect to the issues Congress intended the Board to resolve." Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 418, 102 S.Ct. 720, 728, 70 L.Ed.2d 656 (1982). 20 If Teledyne wishes to press for the amendment of section 2(2), it must present its case to Congress. If it fails in that forum, Teledyne must persuade the Board to decline to exercise its jurisdiction under section 14(c)(1) of the NLRA. This court, however, is charged with interpreting statutes, not rewriting them. If we were to adopt Teledyne's position, we would be adding to the exemption in section 2(2) entities which Congress did not place there. The petition for review must therefore be denied and the order of the Board enforced. 21 ENFORCED. 1 In ARA Services, we did not address the statutory validity of the Management Training rule. We held, however, that "the retroactive application of the Management Training rule would be manifestly unjust." ARA Services, 71 F.3d at 135 2 Teledyne relies on NLRB v. E.C. Atkins & Co., 331 U.S. 398, 67 S.Ct. 1265, 91 L.Ed. 1563 (1947), for the proposition that the degree of control exercised by an exempt entity over the terms and conditions of employment of a non-exempt entity's employees limits the Board's jurisdiction. The Supreme Court, however, prescribed no such strict rule, but rather emphasized that the Board has considerable discretion in deciding whether to exercise jurisdiction over non-exempt private entities. Id. at 403, 67 S.Ct. at 1268-69. Indeed, the Court went on to hold that the employer in that case was obligated to bargain with the union despite the fact that the military reserved the right to veto the hiring or firing of the plant guards represented by the union. Id. at 407, 67 S.Ct. at 1270

775 N.W.2d 531 (2009) SHEBOYGAN COUNTY DEP'T OF HEALTH & HUMAN SERVS. v. WILLIAM S.L. No. 2009AP0138. Supreme Court of Wisconsin. September 11, 2009. Petition for review granted.

386 So.2d 806 (1980) Edward SOKOLSKY, Appellant, v. Audrey M. KUHN, F/K/a Audrey M. Sokolsky, Appellee. No. PP-118. District Court of Appeal of Florida, First District. June 9, 1980. Rehearing Denied August 15, 1980. *807 Edward Sokolsky, in pro. per. Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellant. Elliot Zisser of Zisser, Robison & Spohrer, Jacksonville, for appellee. WENTWORTH, Judge. Appellant seeks review of a judgment which established a foreign divorce decree as a Florida judgment, determined that appellant was in arrears in child support, and authorized garnishment of 25% of appellant's wages, plus deposition costs. Appellant alleges, among other points, that garnishment was inappropriate since the children for whom the support was intended have reached the age of majority and no further support obligation exists. Appellant also alleges that deposition costs were improperly awarded and that the garnishment allowed exceeds the amount permissible. Wages due for the personal labor or services of a person who is the head of a family residing in this state are generally exempt from garnishment. § 222.11, Florida Statutes. However, such monies may be garnished "to enforce the orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support... ." Hall v. Air Force Finance Center, 344 So.2d 1340 (Fla. 1st DCA 1977); § 61.12(1), Florida Statutes. Although the support arrearages owed in the present case were reduced to judgment at a time when the support obligation had terminated due to the children's majority, § 61.12 is nevertheless applicable, and removes the § 222.11 garnishment exemption, since the proceeding remained essentially one for child support. This case is unlike Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), cert. denied, 247 So.2d 437 (Fla. 1971), which involved the "extraordinary remedy of contempt," rather than the monetary remedy of garnishment. Appellant presents no other compelling reason or authority for construing the statute to make totally ineffective its stated exception to wage garnishment exemption whenever payment of child support obligations can be avoided for the period of minority. Appellant filed a § 222.12, Florida Statutes, affidavit claiming the § 222.11 garnishment exemption, and alleges that since no controverting affidavit was filed the court was without authority to enter a judgment of garnishment. Miami Herald Publishing Co. v. Payne, 358 So.2d 541 (Fla. 1978), is cited in support of his position. However, failure to file a controverting affidavit merely operates as an admission of the facts alleged in the § 222.12 affidavit, and neither § 222.12 nor Miami Herald precludes the court's consideration of whether § 61.12 supersedes § 222.11 as a matter of law in these circumstances. Although we conclude that garnishment was appropriate, we find that the court below erred in authorizing garnishment of 25% of wages which represent the appellant's gross earnings. 15 U.S.C. § 1673 preempts any inconsistent provision in the state law and limits and permissible garnishment in this case to 25% of disposable earnings. Phillips v. General Finance Corp. of Florida, 297 So.2d 6 (Fla. 1974). Although the garnishee's answer did not indicate the amount of disposable (or aftertaxes) earnings, the answer did clearly reveal that the stated amount of wages represented gross earnings, and the court below was obligated to conduct a further inquiry as to this issue, under its authority pursuant to § 77.07 and § 77.083, Florida Statutes. Appellant has also presented other issues which we feel do not merit discussion and raise no points of reversible error, except *808 insofar as the garnishment of deposition costs exceeds the 25% of disposable earnings limitation of 15 U.S.C. § 1673. Accordingly, the order appealed is affirmed in part, reversed in part, and remanded for further proceedings. McCORD and LARRY G. SMITH, JJ., concur. ON PETITION FOR REHEARING WENTWORTH, Judge. Petitioner (appellant) correctly notes that the opinion in this case should reflect that appellee had obtained two judgments in Florida. The initial judgment established a foreign divorce decree as a Florida judgment and determined support arrearages. That judgment was not appealed. The appeal was from the subsequent judgment authorizing garnishment to collect the debt for support arrearages. Although the support arrearages had been reduced to a money judgment, our conclusion was that this fact did not alter the essential character of the order as one rendered in a proceeding determining child support arrearages. Garnishment is an appropriate remedy to enforce such an order. § 61.12(1), Florida Statutes. See also Schwarz v. Waddell (Fla. 4th DCA 1980), Case No. 79-1855, filed after this court's decision herein and concluding contrary to our construction of § 222.12, Florida Statutes, in paragraph three of the opinion. The petition for rehearing is denied. McCORD and LARRY G. SMITH, JJ., concur.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 95-40348 Summary Calendar _____________________ IN THE MATTER OF: A & M Operating Co., Inc. d/b/a Custum Vessel Co., Debtor. THE RALPH M. PARSONS CO. Appellant, versus SOUTH COAST SUPPLY COMPANY, INC. Appellee. _________________________________________________________________ Appeal from the United States District Court for the Eastern District of Texas (6:93-CV-627) _________________________________________________________________ April 10, 1996 Before JOLLY, JONES, and STEWART, Circuit Judges. PER CURIAM:* The plaintiff, The Ralph M. Parsons Co. ("Parsons"), appeals partially the March 29, 1995 order of the district court affirming the award by the bankruptcy court to South Coast Supply Company, Inc. ("South Coast") of a materialmen's lien in the amount of $309,464.32 on several high pressure vessels constructed by the bankrupt A & M Operating Company, Inc. d/b/a Custom Vessel Company, * Pursuant to Local Rule 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 Local Rule 47.5.4. Inc. ("CVC"), for Parsons and other CVC clients.1 The amount of the materialman's lien impressed against the single high pressure vessel constructed for Parsons is $207,980.00. Parsons challenges this lien, arguing that the bankruptcy court's findings, affirmed by the district court, are not supported by the record. Specifically, it disputes whether (a) CVC owned the Parsons's vessel at the time the materialman's lien arose, and (b) South Coast, the materialman, was in privity with CVC. I In reviewing the affirmance by the district court of findings of fact by the bankruptcy court, we credit the factual findings unless clearly erroneous. Matter of Reed, 700 F.2d 986, 992 (5th Cir. 1983). A finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). The parties agree that in the instant case the ownership of personal property in possession of the debtor at the time of bankruptcy is a question of fact, as is whether privity existed between the debtor and the putative owner. 1 The district court's order also reversed the bankruptcy court and awarded an additional materialman's lien against CVC in favor of South Coast in the amount of $24,544.72 for sale of material to CVC from South Coast's general inventory. This lien is not the subject of this appeal as only the materialman's lien that South Coast was found to have against the Parsons's vessel has been appealed. -2-  The bankruptcy court found the following facts. CVC specialized in building high pressure vessels, such as the one constructed for Parsons in this case. South Coast was a supplier of subcomponents for these high pressure vessels. South Coast supplied its customers with these components both from its own stock and on a special order basis. South Coast did not itself manufacture any parts. To fill special orders for its customers, such as CVC, South Coast maintained a relationship with a manufacturer of parts, Forged Vessel Connections, Inc. ("FVC"). Under this relationship, South Coast's customers requiring a special order item could order from a FVC catalog maintained by South Coast or they could order directly from FVC. All orders, whether placed directly with FVC or with South Coast, were billed directly to customers, including CVC, solely through South Coast. CVC was never directly invoiced for special order components by FVC and CVC never disputed its liability for payment to South Coast for special orders filled by FVC but billed by South Coast. The bankruptcy court found that CVC experienced financial difficulty in 1992 and was unable to pay South Coast for purchases of components valued at approximately $656,462.27. South Coast became concerned that CVC was about to transfer ownership of certain uncompleted vessels to CVC's respective customers that had ordered them. South Coast therefore filed state court actions asserting its rights as a materialman to a mechanic's lien on the vessels built by CVC with South Coast components, including the -3- Parsons's vessel. In conjunction with these state court suits, South Coast obtained a prejudgment order of sequestration effectively impounding numerous vessels under construction at CVC's facilities. The orders of sequestration required the payment of $323,218.06 as a condition of replevy of the seized vessels. The replevy of each individual vessel is dependent upon the dollar amount of the material supplied by South Coast toward construction of the vessel. In January 1993, CVC filed for relief under Chapter 11 of the Bankruptcy Code. South Coast then removed the state court lawsuits to the United States District Court for the Eastern District of Texas, Tyler Division. Three additional adversary proceedings concerning the same basic issues were filed by two of CVC's customers, Parsons and M.W. Kellogg Company. Because CVC, Parsons and the M.W. Kellogg Company announced a resolution of their disputes in open court, the only issue addressed by the bankruptcy court concerned whether South Coast is entitled to a materialman's lien as a supplier to CVC in the construction of various vessels, including the Parsons's vessel. The bankruptcy court found that the various vessels subject to the sequestration order, including the Parsons's vessel, actually were owned by CVC at the time of the sequestration order, and thus able to be attached by CVC's creditors under Texas law.2 The 2 Parsons does not dispute whether the bankruptcy court correctly sets forth the test for the lien under Texas law. -4- bankruptcy court further found that the value of the components used in the Parsons's vessel, and therefore the Texas constitutional lien against the Parsons's vessel alone, amounted to $207,980.00. In finding that the vessels subject to the sequestration order could be attached, the bankruptcy court rejected the claim of CVC's customers that the customers owned the various vessels at the time of sequestration. Parsons premised its ownership of the vessel constructed for it by CVC on (a) the vesting title provision in its contract with CVC, and (b) Parsons's payments of several hundred thousand dollars to CVC in the months preceding CVC's bankruptcy filing. The court reasoned that the vesting title provision conflicted with a December 16, 1992 letter of Parsons's stating that title to the vessel did not transfer until that date. It further found that the several hundred thousand dollars paid by Parsons to CVC compensated CVC not for components supplied by South Coast and incorporated into the vessels, but for drawings of the vessel and the provision of certain "head and plate" material. The bankruptcy court also turned aside Parsons's argument that because of a lack of privity, South Coast could not qualify as a materialman. In so doing, the court found first that CVC was in privity with South Coast, not FVC, even though South Coast permitted its customers, including CVC, to order directly from FVC. The court reasoned that because all invoices for components furnished CVC were submitted to CVC by South Coast, CVC dealt with -5- South Coast instead of FVC, as Parsons's had asserted, entitling South Coast to claim the lien. II The issue on appeal is whether the district court committed clear error in affirming the bankruptcy court's factual findings that (a) CVC owned the vessels at the time that the lien in favor of South Coast arose, and (b) South Coast was in privity with CVC. Having reviewed the record, the briefs of the parties, the opinion of the bankruptcy court, and the memorandum opinion and order of the district court, we find that because the bankruptcy court's factual findings have solid support in the record, the district court's affirmance of the bankruptcy court's recognition of a materialman's lien in the Parsons's vessel in favor of South Coast for $207,980.00 is not clearly erroneous. For the reasons set out by the district court in its order of March 29, 1995, the judgment in favor of the defendant, South Coast Supply Company, Inc., is hereby A F F I R M E D. -6- 

912 A.2d 931 (2007) Judith E. BUCKLIN v. Frances MORELLI, in her capacity as executrix of the Estate of Ralph DiConstanzo. No. 2005-282-Appeal. Supreme Court of Rhode Island. January 5, 2007. *932 James E. Kelleher, Warwick, for Plaintiff. Keven A. McKenna, Providence, for Defendant. Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ. OPINION Justice ROBINSON for the Court. On May 25, 2004, a justice of the Superior Court issued a bench decision in favor of the plaintiff, Judith E. Bucklin, who had sought the remedy of specific performance in connection with a purchase and sales agreement regarding a certain parcel of real property located in Warwick. The defendant, Frances Morelli, filed a timely notice of appeal from that judgment. On appeal, defendant contends (1) that the trial justice erred in granting plaintiff's prayer for specific performance and (2) that the trial justice abused his discretion in admitting the testimony of a particular expert witness. This case came before this Court on October 31, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. Having considered the record, the memoranda filed by the parties, and the oral arguments, we are of the opinion that cause has not been shown and that this case should be decided without further briefing or argument. For the reasons set forth herein, we deny the appeal and affirm the judgment of the Superior Court. Facts and Travel On July 7, 2000, Ms. Morelli and Ms. Bucklin entered into a purchase and sales agreement, whereby Ms. Morelli (as executrix of her father's estate) agreed to sell Ms. Bucklin a parcel of real property located at 126 Lakedell Drive in Warwick for $77,000. Paragraph four of the agreement reads in pertinent part: "Closing is to be held on September 01, 2000 at 10:00 A.M. at the office of the Registry of Deeds in which the deed should by law be recorded or at such other time and place as may be agreed to by the parties." Significantly, the agreement does not contain a "time is of the essence" provision. Paragraph ten of the purchase and sales agreement provides in pertinent part: "If Seller is unable to [convey good, clear, insurable, and marketable title], Buyer shall have the option to: (a) accept such title as Seller is able to convey without abatement or reduction of the Purchase Price, or (b) cancel this Agreement and receive a return of all Deposits." The purchase and sales agreement requires, in paragraph twenty-four, approval of the Probate Court as an additional condition to the sale. Paragraph twenty-eight of the agreement reads: "We, the parties hereto, each declare that this instrument contains the entire agreement between us, subject to no understandings, conditions, or representations other than those expressly *933 stated herein. This Agreement may not be changed, modified, or amended in whole or in part except in writing, signed by all parties." Ms. Bucklin brought this action for specific performance on June 11, 2001. A bench trial was conducted on March 9 and March 11, 2004, and a bench decision was rendered in favor of plaintiff on May 25, 2004. We set forth below the most significant testimony given by the several witnesses who testified during the two-day trial. Ms. Bucklin testified that, in view of the purchase and sales agreement's provision concerning title, she hired Attorney Harry Cesario to conduct a title examination with respect to the Lakedell Drive property. The title examination, which was conducted in July of 2000, revealed the presence of several liens on the property. Attorney Cesario testified that he sent a letter to Attorney Robert Natal, Ms. Morelli's attorney, to notify him of the presence of the liens. Attorney Cesario further testified that the two attorneys spoke frequently about the lien issue and how it might be resolved between July 20 and September 1, 2000, as well as after September 1, 2000. He also testified that Attorney Natal had advised him that he was in the process of resolving the lack of marketable title caused by the presence of the liens. Attorney Cesario could not specifically recall discussing with Attorney Natal whether or not the closing would occur on September 1, 2000, but he nonetheless stated, "I'm sure we did." Attorney Cesario admitted that there was no written extension of the September 1, 2000 date that was specified in the purchase and sales agreement, but he stated that he and Attorney Natal had discussed the fact that it would not be possible for the closing to occur on September 1, 2000. According to Attorney Cesario, communications between him and Attorney Natal ceased at some point. Ms. Bucklin testified that the purchase and sales agreement provided for a closing on September 1, 2000 but that the closing did not occur on that date because Ms. Morelli required more time to have the liens on the property removed. Ms. Bucklin also testified that, although she knew about the liens on the property before September 1, 2000 and knew about her rights under paragraph ten of the purchase and sales agreement, she opted not to exercise those rights on or before September 1, 2000 since she wanted to allow Ms. Morelli's lawyer more time to resolve the marketable title problem. Ms. Bucklin admitted to sending Ms. Morelli a letter on August 30, 2000, requesting that she extend the time for the closing until September 15, 2000, but she testified that her purpose in doing so was to communicate to Ms. Morelli her desire to continue with the purchase despite the fact that more time would be needed before a closing would take place. Ms. Bucklin also testified that she believed that September 1, 2000 was a "target" closing date and that it was further her belief that it is customary to conduct a real estate closing after the closing date specified in the purchase and sales agreement. Ms. Bucklin stated that the purchase and sales agreement contained no "time is of the essence" provision — a fact which she understood to mean that there was flexibility in the closing date. Ms. Bucklin further testified that she indicated to her attorney, Mr. Cesario, her desire to exercise her option under paragraph ten. According to Ms. Bucklin, although she did not make a written offer to exercise that option between September 1 and September 15, 2000, she did do so at some point between September 15 and October 1, 2000. Ms. Bucklin also testified *934 that her lawyer sent a letter on her behalf, expressing Ms. Bucklin's desire to buy the property in its current state in mid-October of 2000.[1] Attorney Cesario testified that, in his October 16, 2000 letter, he indicated that Ms. Bucklin wished to exercise her option under paragraph ten of the purchase and sales agreement. According to Attorney Cesario, he asked Attorney Natal to discuss with Ms. Morelli both the fact that Ms. Bucklin desired to exercise the option and the need to establish a new closing date. Attorney Cesario also stated that his letter advised Attorney Natal that Ms. Bucklin would seek specific performance if Ms. Morelli did not comply. Attorney Cesario further testified that Attorney Natal never responded in any manner to that letter. Ms. Bucklin testified that neither Ms. Morelli nor her realtor communicated to Ms. Bucklin any desire to terminate the purchase and sales agreement prior to October 16, 2000. Attorney Cesario also testified to the same effect. In fact, according to Ms. Bucklin, Ms. Morelli's attorney ceased all communication with Ms. Bucklin's attorney around mid-October of 2000. In addition, Ms. Bucklin testified that she had made a deposit on the property and that that deposit was still being held in escrow at the time of trial. She admitted that, at some point in time, her realtor advised her that Ms. Morelli's realtor wanted to return the deposit, but Ms. Bucklin refused to accept the tendered check. Ms. Bucklin also testified that she had planned to pay the rest of the purchase price with money that she had in certain banks and that at no time between the execution of the purchase and sales agreement on July 7, 2000 and the sending of her attorney's letter on October 16, 2000 did she lack sufficient funds in those banks to cover the remaining balance on the property. Ms. Bucklin also testified that she sent a letter to Ms. Morelli on November 30, 2000, expressing her desire to buy the property without clear title.[2] According to Ms. Bucklin's testimony, she also sent to Ms. Morelli, by certified mail in December, a letter referencing the November 30, 2000 letter. Ms. Morelli testified that the closing did not occur on September 1, 2000 because the title was defective. According to Ms. Morelli, prior to September 1, 2000, she *935 was not asked to sign an agreement postponing the closing date, and she did not know that the closing was not going to take place on September 1, 2000 until after that date. Ms. Morelli admitted that she did not need to obtain probate court approval before selling the property because her father had given her the authority to do so in his will. According to Ms. Morelli, she instructed her real estate agent to return the deposit money to Ms. Bucklin in September of 2000. Ms. Morelli admitted that she did not personally advise Ms. Bucklin, Ms. Bucklin's realtor, or Ms. Bucklin's attorney that she had decided at some point after September 1, 2000 that the deal was over. She also conceded that she did not plan to present any witnesses who would testify that they had communicated to Ms. Bucklin, Ms. Bucklin's realtor, or Ms. Bucklin's attorney that the deal was over. She also testified that she had never seen a document that indicated that the deal was over. Ms. Morelli testified that she was not informed that Ms. Bucklin expressed any interest in buying the property without clear title at any time in September or October of 2000 and that there were no discussions about amending the agreement until October 16, 2000. Ms. Morelli testified that she understood the letter from Ms. Bucklin's attorney dated October 16, 2000 to be a request to negotiate a new agreement. Ms. Morelli also testified that, despite the provisions of paragraph ten of the agreement and the lawyer's letter of October 16 indicating that Ms. Bucklin wanted to exercise her rights under paragraph ten, she still thought that she could not sell the property; Ms. Morelli stated that it was her understanding that before she could sell the property, she would have had to go to court to resolve the Sherman mortgage issue.[3] Ms. Morelli admitted that she received and understood Ms. Bucklin's letter of November 30, 2000, which reads in part: "We are willing, as we said before, to buy the property without inspections and without a clear title." She further stated that she chose not to respond to that letter. According to Ms. Morelli, she thought that by the requests contained in that letter Ms. Bucklin was attempting to form a new agreement. Ms. Morelli testified that she was not attempting to delay the closing for the purpose of selling the property to someone else. On March 9 and 11, 2004, a bench trial was held, and the trial justice entered a judgment in Ms. Bucklin's favor on May 25, 2004.[4] Ms. Morelli filed a timely notice of appeal. Standard of Review The trial justice is vested with broad discretion in deciding whether or not to grant a request for specific performance; such a decision will not be overturned on appeal unless it was clearly wrong. See Eastern Motor Inns, Inc. v. Ricci, 565 A.2d 1265, 1269 (R.I.1989) ("The grant of a request for specific performance is not a matter of right but rests within the sound discretion of the trial justice. * * * On appeal this court will not disturb a trial justice's ruling on a specific performance claim unless the appellant demonstrates an *936 abuse of discretion or error of law on the part of the trial justice."); see also Fracassa v. Doris, 876 A.2d 506, 509 (R.I.2005); DePetrillo v. Lepore, 871 A.2d 907, 909 (R.I.2005); Lajayi v. Fafiyebi, 860 A.2d 680, 686 (R.I.2004); Thompson v. McCann, 762 A.2d 432, 436 (R.I.2000). Similarly, with respect to defendant's second argument on appeal, the decision as to whether or not to admit the testimony of a particular witness as expert testimony is a matter confided to the sound discretion of the trial justice; this Court will not reverse such a decision absent an abuse of discretion. See Gallucci v. Humbyrd, 709 A.2d 1059, 1064 (R.I. 1998) ("This court will not disturb a trial justice's ruling on the admissibility of expert testimony absent an abuse of discretion."); see also Beaton v. Malouin, 845 A.2d 298, 301 (R.I.2004); Skene v. Beland, 824 A.2d 489, 492 (R.I.2003); Raimbeault v. Takeuchi Manufacturing (U.S.), Ltd., 772 A.2d 1056, 1061 (R.I.2001). Analysis I Request for Specific Performance The defendant's first contention on appeal is that the trial justice erred in granting plaintiff specific performance of the purchase and sales agreement. We are not persuaded by this contention. In the absence of a legitimate and articulable equitable defense, specific performance is an available remedy when a purchaser of real estate under a written contract demonstrates that he or she was at all times ready and willing to perform the contract. Thompson, 762 A.2d at 436; see also Fracassa, 876 A.2d at 509. Additionally, specific performance for a real estate contract is an available remedy when a party "unjustifiably refuses or fails to perform under the agreement." Yates v. Hill, 761 A.2d 677, 679 (R.I.2000); see also Lajayi, 860 A.2d at 686. In the instant case, the trial justice determined that the parties entered into an agreement providing for the sale of property with a closing to be held on September 1, 2000, but he also noted that the contract contained no "time is of the essence" provision. Additionally, the trial justice found that paragraph ten of the contract allowed plaintiff (buyer), if defendant (seller) were unable to convey marketable title, the option of either (1) accepting the lesser title to the property or (2) having her earnest money returned. The trial justice stated that plaintiff attempted to exercise her right under the first of those options by agreeing to accept whatever title defendant was able to produce upon plaintiff's tender of consideration. In his bench decision, the trial justice recognized that, before he could exercise his discretion and grant specific performance, plaintiff was required to demonstrate (1) that a valid agreement existed and (2) that she was ready, willing, and able to perform. He then concluded that both of those requirements were met. First, the trial justice acknowledged that the existence of a valid and binding agreement was not challenged. Second, the trial justice determined that plaintiff proved by clear and convincing evidence that she was ready, willing, and able to pay the agreed-upon consideration and accept the encumbered title to the property within a reasonable time after the September 1, 2000 closing date. The trial justice explained in some detail that, although the parties never explicitly agreed that the closing date was extended, the de facto existence of such an extension could be inferred from the conduct of the parties. More specifically, the trial justice pointed to the extensive discussions between the *937 parties and their agents subsequent to the September 1, 2000 closing date. He took special note of the letter of October 16 from plaintiff's attorney to defendant's attorney expressing plaintiff's desire to exercise her rights under paragraph ten of the purchase and sales agreement. Furthermore, the trial justice specifically addressed and rejected defendant's contentions to the effect (1) that defendant made an earnest effort to return plaintiff's deposit during September and (2) that the cash sale nature of the transaction created a time mandate. Then, in exercise of this discretion, the trial justice concluded that plaintiff should be granted the equitable remedy of specific performance. We perceive no abuse of discretion in either the trial justice's analysis or in his final decision. II Admissibility of Expert Testimony The defendant's second argument on appeal is that the trial justice abused his discretion in allowing a Rhode Island realtor to testify as an expert witness for plaintiff. We are not persuaded by this contention. The plaintiff proffered the realtor as an expert witness, stating that he would testify that, where there is no "time is of the essence" language, the closing date specified in a purchase and sales agreement is commonly viewed as a target date in the real estate industry and that closings commonly occur a few days after the targeted closing date. The trial justice allowed the realtor to testify during the non-jury trial, ruling that his testimony could be helpful if the trial justice determined that an ambiguity existed in the underlying contract. The trial justice stated that he would assess the probative value of the realtor's testimony at the end of the trial. The realtor in question testified that the absence of a "time is of the essence" provision in the purchase and sales agreement signified that the parties had agreed that the closing could still occur even if it did not take place on the precise date specified in the agreement. He also testified that, when a purchase and sales agreement does not include a "time is of the essence" provision, it is not uncommon for such transactions to close after the targeted closing date. According to the realtor, a closing approximately six weeks after the targeted date, while not common, would not be extraordinary. Whether or not the trial justice acted within his discretion in allowing the realtor to testify as an expert witness is an intriguing question. However, we need not rule upon that issue in this case. Regardless of whether or not the realtor should have been allowed to testify as an expert witness, there is absolutely no basis for reversal on the ground that he did so testify since the trial justice did not rely upon the testimony of the expert witness when deciding this case. Rather, the trial justice relied solely upon the conduct of the parties to the contract (specifically, the continued communications between the parties and their agents after September 1, 2000) in reaching his conclusion that the parties wished "to extend the closing date to a date within a reasonable period after [September 1, 2000]."[5] Conclusion For the reasons set forth herein, we affirm the judgment of the Superior Court. *938 The record may be remanded to the Superior Court. APPENDIX NOTES [1] A copy of this letter, dated October 16, 2000, is appended to this opinion. [2] Ms. Bucklin's letter of November 30, 2000 to Ms. Morelli reads in pertinent part: "I am writing to ask for your help. Five months ago as I was looking for a house we could afford to help our son buy, we were excited to find 126 Lakedell Drive. You and I signed the sales agreement, and details seemed to be progressing for the sale to take place in late September. All of a sudden, communication between us stopped. We have not been able to find out what the problem is. "We and our son would still like very much to buy the Lakedell house. Could you help us understand what is happening? We are peace-loving people who want you to be as happy about the sale of 126 Lakedell as we would be about buying it. We are willing, as we said before, to buy the property without inspections and without a clear title. We are willing to sign any papers that would help you feel at ease. "I know this must be weighing on your mind as it is ours. I hope that you will find it in your heart to help us understand what has happened to break down the process between us. Won't you please contact us? If it would help for us to sit down together, I would be glad to. If you really still want to sell the house, I'm sure that we could come to a mutually agreeable compromise. Again, we would like to do whatever we could to be helpful, but we need your help to know what that might be." [3] The Sherman mortgage was one of the title defects revealed by the title examination of the Lakedell Drive property. Ms. Morelli testified that she thought that she would have to go to court to resolve this issue because she did not know how much she owed on the mortgage. [4] There were numerous post-trial filings in this case, but none of them has any bearing on the issues before us on appeal. [5] After making his finding as to the extension issue (without relying on the testimony of the expert witness), the trial justice proceeded to find that Ms. Bucklin was ready, willing, and able to perform her part of the bargain, and he ruled that specific performance was justified in this case.

546 F.Supp. 415 (1982) FRANK MASTOLONI & SONS, INC., Plaintiff, v. UNITED STATES POSTAL SERVICE, Nan Duskin, Inc. and Jewelers Mutual Insurance Company, Defendants. No. 80 Civ. 6816 (KTD). United States District Court, S. D. New York. August 30, 1982. *416 *417 Tell, Cheser, Breitbart & Lefkowitz, New York City, for plaintiff; Franklin D. Tell, New York City, of counsel. John S. Martin, Jr., U. S. Atty. for the S. D. of New York, New York City, for defendant United States Postal Service; Jonathan A. Lindsey, Asst. U. S. Atty., New York City, of counsel. Abrams & Martin, P. C., New York City, for defendants Nan Duskin and Jewelers Mut.; Steven Jay Bassin, New York City, of counsel. MEMORANDUM AND ORDER KEVIN THOMAS DUFFY, District Judge: Plaintiff Frank Mastoloni & Sons, Inc. ("Mastoloni"), a New York wholesale jeweler, brought this action against defendants United States Postal Service ("Postal Service"), Nan Duskin, Inc. ("Nan Duskin"), a specialty store located in Philadelphia, Pennsylvania, and Nan Duskin's insurer, Jewelers Mutual Insurance Company ("Jewelers Mutual") to recover $25,000 for its stolen necklace. In early December, 1979, Nan Duskin's jewelry buyer and manager, Roberta Spivak, requested that Mastoloni ship to her store a South Sea cultured pearl necklace with an approximate value of $25,000. Nan Duskin and Mastoloni had been doing business together for many years.[1] On December 5, 1979, plaintiff delivered to the Post Office in New York City, a parcel containing the requested necklace and a consignment memorandum, a standard printed form commonly received by Nan Duskin. Handwritten on the memo is a description of the necklace and its minimum resale price of $25,000. Plaintiff's Exhibit 1. The printed portion of the memo outlines Nan Duskin's agreement either to sell the necklace at a price of at least $25,000 or to return the goods to Mastoloni. Id. Further, Nan Duskin agreed "to keep the goods fully insured, while in its possession, against all applicable risks." Id. Acceptance of the goods was deemed an acceptance of the terms and conditions stated in the memo. Id. As per their usual business custom, Mastoloni sent the package, via registered mail, to the Philadelphia Post Office. Believing that the Post Office only insured packages up to $10,000, Mastoloni would never place a value above $10,000 within its firm mailing book which is the registered mail form for large scale users. Mastoloni apparently learned through its insurer, Lloyds of London, that the Post Office would pay the value of any lost or damaged item up to $10,000 and that Mastoloni's insurer would indemnify the plaintiff for any loss above this amount. Mastoloni Deposition at p. 13. For unexplained reasons, therefore, Mastoloni would only place 10 percent of an article's value in its mailing book provided the value of the article was over $10,000. Id. Accordingly, the value entered for the necklace mailed to Nan Duskin was $2,500. Nan Duskin maintained a special post office box at the Philadelphia Post Office for all of its registered mail packages and employed several authorized messengers to pick up its registered mail. A representative of Nan Duskin accompanied Mr. Fred Margulies to the Post Office to introduce him to the registry clerk and to authorize Margulies' acceptance of packages on Nan Duskin's behalf. Defendants Nan Duskin and Jewelers Mutual's Exhibit 1, Deposition of Leroy Davis at pp. 14, 39. Fred Margulies was fired several days prior to December 6, the date the package apparently was available for pick up in Philadelphia. Nan Duskin, however, failed to notify the Post Office that Margulies was no longer authorized to receive its packages. It appears that Margulies went to the registered mail window on December 6, 1979 and took delivery of the plaintiff's necklace, along with several other packages from Nan Duskin's other suppliers. Rather than signing his own name, Margulies scribbled what appears to be "Parker." Defendants Nan *418 Duskin and Jewelers Mutual's Exhibit 3. The registry clerk, Leroy Davis, who recognized Margulies, did not check Margulies' signature, in contravention of official postal policy. It seems that the registry clerks at this branch whenever they dealt with a familiar customer did not follow this official requirement. Defendants Nan Duskin and Jewelers Mutual's Exhibit 1 at pp. 15-16, 21-22. Approximately two hours after Margulies took delivery, the authorized Nan Duskin messenger arrived at the Philadelphia Post Office to pick up the same packages. The messenger learned of Margulies' activities and notified Nan Duskin. Roberta Spivak immediately phoned Mastoloni, admitted Nan Duskin's full responsibility and promised full compensation for the loss of plaintiff's necklace. Affidavit of Roberta Spivak at p. 4. Spivak requested that plaintiff send a copy of the consignment memo to Nan Duskin since the original memo which accompanied the necklace was now in Margulies' possession. Plaintiff complied with this request. See Plaintiff's Exhibit 1. It appears that subsequent to this time, Everett Lamond, the adjuster from Jewelers Mutual who handled this Nan Duskin claim, advised Nan Duskin that the claim for the loss of this necklace would not be paid. Plaintiff's Exhibit 5 at p. 40. On September 30, 1980, Bruce Long, the treasurer of Nan Duskin, wrote plaintiff and voiced his embarrassment for his company's failure to have paid Mastoloni's claim and promised that action would soon be taken to resolve the problem. Plaintiff's Exhibit 3. To date, the claim has not been paid.[2] Plaintiff filed suit against Nan Duskin alleging the defendant's absolute liability for the $25,000 necklace pursuant to the "all risk" consignment memo. Plaintiff also joined Jewelers Mutual as a co-defendant claiming that pursuant to clause 3(c) of the insurance policy it issued to Nan Duskin, Mastoloni has a direct right of action against the insurer either (i) because a bailor has a direct right of action on the bailee's policy or (ii) because plaintiff is a third-party beneficiary of the insurance contract. Affidavit of Franklin Tell at p. 4, Plaintiff's Exhibit 7, clauses 3(c), 10. The Postal Service was also sued as a co-defendant for its alleged failure to fulfill its registered mail contract. Plaintiff alleges that the indemnity contract, which concededly was voided when plaintiff entered a false value for the necklace, is separate from the registered mail contract. Various summary judgment motions are now before me. The Postal Service moves for summary judgment against plaintiff claiming that because plaintiff failed to disclose the true value of the package the registered mail contract was void. In further support of its motion, the Postal Service cites its own regulations which required that Nan Duskin notify the postal authorities that Margulies was no longer authorized to receive packages. Accordingly, the Postal Service argues, since it was not notified it cannot be held liable by the plaintiff. The Postal Service's motion for summary judgment is opposed by Nan Duskin, Jewelers Mutual and the plaintiff. Jewelers Mutual also moves for summary judgment, claiming that it cannot be found liable until such time as Mastoloni secures a judgment against Nan Duskin. Finally, Mastoloni moves for summary judgment against Nan Duskin. DISCUSSION A. Postal Service's Liability In support of its motion for summary judgment, the Postal Service relies on the Domestic Mail Manual ("DMM") which allows senders to insure against the risk of loss by providing for indemnification on registered mail.[3] Section 911.251 of the *419 DMM, appended to the Postal Service's Answer, provides that The sender must tell the postal clerk (or enter on the firm mailing bill if a firm mailer) the FULL value of mail matter presented for registration .... No indemnity will be paid for any matter on which the full value is not declared.[4] By entering the necklace at 10 percent of its true value in the mailing book, Mastoloni paid a lesser mailing fee and violated the terms of the registered mail contract. Plaintiff contends that the Postal Service should not escape complete liability solely because plaintiff failed to state the true amount of the necklace on the registered mail form, but should instead be liable for $2,500, the value of the necklace as registered in the mail contract. Plaintiff, however, cites no authorities in support of this argument. The Postal Service is only liable to the extent that it agrees to be liable. Ridgway Hatcheries, Inc. v. United States, 278 F.Supp. 441, 443 (N.D.Ohio 1968); Taylor v. U. S. Post Office Dept., 293 F.Supp. 422, 423 (E.D.Mo.1968). In the instant case, the Postal Service only agreed to be liable if the true value of the parcel was entered in the firm mailer and thus declared to the postal authorities. Accordingly, plaintiff's conceded failure to enter the known value of the necklace precludes any indemnification by the Postal Service. Defendants Nan Duskin and Jewelers Mutual join plaintiff's challenge to the Postal Service's summary judgment motion and argue that the indemnification contract is separate and apart from the registered mail contract. They assert that the plaintiff's violation of the indemnification contract does not void the registered mail contract; therefore, the Postal Service assumes liability for violating the registered mail contract and is liable for $2,500. This argument is unpersuasive. Research does not disclose any support for the argument that the registered mail contract is a separate entity from the indemnification contract. Furthermore, this distinction is inconsistent with the purpose of registered mail as outlined in the DMM. Registered mail in essence is an exception to the Federal Torts Claims Act and allows post office liability to attach for negligent loss or damage to mail. Admittedly, the fee plaintiff paid for indemnification, $5.70, is separate from the $.67 postage fee plaintiff paid. Yet, if plaintiff recovers the $2,500 he requests, an indemnification would result and plaintiff would have successfully manipulated postal regulations to suit its purpose. In addition, even if the registration contract is independently viable, there is no showing that damage resulted from a breach of the registration contract or that the Postal Service's delivery of the necklace to Margulies constituted a breach of this contract. The Postal Service was not notified that Margulies was no longer authorized to accept Nan Duskin's packages. Plaintiff's Exhibit 5 at p. 27. Nan Duskin's oversight renders the registry clerk's failure to check Margulies' signature immaterial, especially in light of Nan Duskin's failure to complain to the Registry Clerk that registered mail was turned over to familiar authorized messengers without handwriting checks. Defendants Nan Duskin and Jewelers Mutual's Exhibit 1 at p. 51. In Taylor, 293 F.Supp. 422, the Postal Service's motion for summary judgment was granted on the basis of plaintiff's failure to comply with postal service regulations. The court stated that "in contract terminology, these regulations establish certain conditions precedent to the government's performance. Plaintiff has failed to comply therewith and accordingly cannot as a matter of law recover on his claim." 293 F.Supp. at 423. This holding is equally applicable to the case at bar. *420 Alternatively, defendants Nan Duskin and Jewelers Mutual argue that the Federal Torts Claims Act does not apply because negligence was not present in this case. They argue that the failure of the registry clerk to adequately check signatures was a standard operating procedure, rather than negligence. The Postal Service cannot avoid liability, defendants argue, when suit is grounded on a standard operating procedure and not negligence. This argument is without merit. Accepting, arguendo, that negligence is not at the heart of this matter, that cannot eradicate the fact that the registered mail contract is void because plaintiff failed to fulfill the conditions precedent to indemnification. The Postal Service cannot be held liable for breaching an invalid contract. Further, a standard operating procedure can be negligence. Defendants have not provided any convincing argument, nor cited any cases which would support a finding that negligence was not involved in the Postal Service's failure to check signatures. Defendants Nan Duskin and Jewelers Mutual further argue that Nan Duskin's status as a third-party beneficiary of the registered mail contract defeats the Postal Service's motion. This argument is frivolous. A contract that is unenforceable by the plaintiff cannot be enforced under a third-party beneficiary theory by cross claimants. See United States v. Industrial Crane & Mfg. Corp., 492 F.2d 772, 774 (5th Cir. 1974); National Benefit Fund for Hospital & Health Care Employees v. Presbyterian Hospital, 448 F.Supp. 136, 138 (S.D.N. Y.1978). Further, cross claimants cannot recover on the basis of the Postal Service's purported negligence, pursuant to the Federal Tort Claims Act. See Sportique Fashions, Inc. v. Sullivan, 597 F.2d 664, 665 (9th Cir. 1979); Marine Insurance Co. v. United States, 410 F.2d 764, 765 (Ct.Cl.1969). Finally, defendants Nan Duskin and Jewelers Mutual argue that a material question of fact exists as to the true value of the necklace. They assert that the true value of the necklace is uncertain and could range from $2,500 to $25,000. They argue that if the lower value is correct, then the registered mail contract is valid. Accordingly, they assert that defendant Postal Service's motion for summary judgment should be denied since the value of the necklace remains unresolved. This argument is totally unpersuasive. Even though a material question of fact will defeat any motion for summary judgment, Contemporary Mission, Inc. v. U. S. Postal Service, 648 F.2d 97, 107 (2d Cir. 1981), no such question is present here. The $25,000 minimum value of the necklace cannot be controverted. This is the value defendants accepted without challenge when Nan Duskin received the copy of the consignment memo requested by Ms. Spivak. This is the value plaintiff now seeks from the defendants. Defendants raise no material factual question as to the value of the necklace. Accordingly, defendant Postal Service's motion for summary judgment is granted. B. Nan Duskin's Liability Nan Duskin attempts to shield itself from liability by claiming that it never "received" the package and the consignment memo from Mastoloni. This defendant contends that Margulies was not an employee when he picked up the plaintiff's necklace and therefore Nan Duskin is not responsible for his acts. Nan Duskin's argument has two fatal flaws: one, the store's failure to notify the Post Office that Margulies was no longer authorized to accept its packages; two, Nan Duskin's later acknowledgement of its liability and agreement to accept full responsibility for the loss. The fact that Margulies had been fired when he signed for the necklace does not abrogate Nan Duskin's legal receipt of plaintiff's parcel. Margulies was empowered to accept packages on Nan Duskin's behalf while he was in the store's employ. After terminating Margulies' direct authority to act as its agent, Nan Duskin must then have taken appropriate affirmative steps to destroy Margulies' apparent authority in order to defeat its own liability. *421 The general rule is that the acts of an agent, within the apparent scope of his authority, are binding on the principal as against one who had formerly dealt with him through the agent and who had no notice of the revocation, because such a person is justified in assuming the continuance of the agency relationship. (citations omitted) 3 Am.Jur.2d Agency § 44 (1962), quoted in LaBonte v. Preyer, 300 F.Supp. 1078, 1081 (E.D.Wis.1969). The Post Office, without notice from Nan Duskin, had no reason to believe that Margulies' authority had expired. Roberta Spivak acknowledged, "no one from Nan Duskin ever advised the Post Office that Margulies had been fired and was no longer authorized to accept any further registered-mail shipments. It was complete carelessness on our part. Certainly the Post Office had no way of knowing that Margulies had been fired." Affidavit of Roberta Spivak at p. 3. If an employer does not take reasonable action to inform third parties that its agent lacks any authority to act on its behalf, the principal is legally and equitably bound by the agent's action. See United States v. Uniroyal, Inc., 300 F.Supp. 84, 95 (S.D.N.Y.1969); Restatement (Second) of Agency § 125 (1958). Even if Margulies' status as an agent at the time of the theft is in question, Nan Duskin's later ratification of his act cements its liability. "[R]atification is the adoption or affirmance by a person of a prior act which did not bind him, but which was done or professed to be done on his account, thus giving effect to the act, as to some or all persons, as if originally authorized." 3 Am.Jur.2d Agency § 160 (1962). Bruce Long's September 30, 1980 letter to Mastoloni voiced his embarrassment "that your invoice in the amount of $25,000. has not yet been paid." Plaintiff's Exhibit 3. Nan Duskin's affirmance of this debt is further supported by Roberta Spivak's November 10, 1980 letter in which she agreed for Nan Duskin "to be responsible for any loss of the necklace until its safe return to you." Plaintiff's Exhibit 4. These letters establish Nan Duskin's knowledge of all material facts and constitute ratification of Margulies' apparent authority. See Hydrolevel Corp. v. American Society of Mechanical Engineers, 635 F.2d 118, 125 (2d Cir. 1980) (Lumbard, J.), aff'd, ___ U.S. ___, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982), (principal ratified agent's fraud even without retention of benefits); Restatement (Second) of Agency § 93 (1958). Nan Duskin cannot now effectively raise Margulies' firing to escape liability. Even if Margulies lacked apparent authority to accept Mastoloni's necklace and consignment memo and bind Nan Duskin by his acceptance, Nan Duskin's later ratification sealed its own fate. Accordingly, Mastoloni's motion for summary judgment against Nan Duskin is granted.[5] C. Jewelers Mutual Insurance Company's Liability Jewelers Mutual argues in its summary judgment motion that plaintiff cannot properly assert a direct action against it until plaintiff secures a judgment against Nan Duskin. My decision to grant Mastoloni's summary judgment against Nan Duskin moots Jewelers Mutual's motion. Now that the liability of Nan Duskin has been established, it is unnecessary to resolve the question of the legal propriety of Mastoloni's inclusion of Jewelers Mutual in its complaint. In sum, Mastoloni's motion for summary judgment is granted against Nan Duskin; the Postal Service's motion for summary judgment is granted and the summary *422 judgment motion of Jewelers Mutual is mooted. SO ORDERED. NOTES [1] The affidavit of Raymond Mastoloni, the president of the plaintiff, attached to Plaintiff's Notice of Motion for Summary Judgment evidences a long standing business relationship between Mastoloni and Nan Duskin. This has not been denied. [2] Apparently, the claims of other suppliers whose merchandise was also taken by Margulies have been paid. None of the other claims were as large as Mastoloni's and Nan Duskin paid those claims out of its own pocket. Plaintiff's Exhibit 5, at pp. 41-42. [3] The DMM provides an exception to the Federal Torts Claims Act, 28 U.S.C. § 2680(b) which precludes government liability for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." [4] The DMM is incorporated by reference in the Code of Federal Regulations and therefore is deemed published in the Federal Register (39 C.F.R. § 111.1 (1981)). Mastoloni is presumed to have notice of its contents. 44 U.S.C. § 1507 (1976). [5] Defendants Nan Duskin and Jewelers Mutual argue that if state law is applied, then the law of Pennsylvania and not New York is applicable. I need not resolve this choice of law conflict because my decision is based on fundamental concepts of agency law rather than on a particular state's law. Furthermore, both New York and Pennsylvania subscribe to these general agency motions. See Universal Computer Systems, Inc. v. Medical Services Ass'n, 628 F.2d 820, 823 (3d Cir. 1980); Greene v. Hellman, 51 N.Y.2d 197, 412 N.E.2d 1301, 433 N.Y. S.2d 75 (1980).

228 Cal.App.2d 744 (1964) 39 Cal. Rptr. 701 WILLIAM NELKIN et al., Plaintiffs and Appellants, v. MARVIN HIME & COMPANY, INC., Defendant and Respondent. Docket No. 27788. Court of Appeals of California, Second District, Division Two. July 28, 1964. *745 Anderson, McPharlin & Conners and Robert C. Haase, Jr., for Plaintiffs and Appellants. Bert W. Levit, Herbert Z. Ehrmann and Long & Levit for Defendant and Respondent. ASHBURN, J.[*] The copartnership of William Nelkin & Co., a New York wholesale diamond merchant, seeks to recover from Marvin Hime & Co., Inc., a Beverly Hills retail jeweler, the value of certain jewelry consigned by the former to the latter on various dates in 1957 and 1958 and having a value of $25,047. It is conceded, as stated in the findings, that: "On May 1, 1958, said items of jewelry were stolen in an armed robbery which occurred without the complicity, negligence, or fault of defendant." Plaintiffs rest their case upon the terms of the memorandum *746 which accompanied the consignment at the time of delivery, each one being in the following terms: "The said property is received for inspection only with the understanding that title is to remain in WM. NELKIN & CO. and that the undersigned will return the said property on or before ten days from date, and in the event said property is damaged, lost, stolen or destroyed, the undersigned will be responsible therefor, whether caused by the undersigned or by another over whom the undersigned has no control, and whether negligent or not; and in any such event, the undersigned will pay the said stated value thereof to the said WM. NELKIN & CO. on or before the expiration of the said return date. The agreed value is as described below in dollars." The document was not signed by either party; defendant accepted same without objection or comment and retained the memorandum in its own file. The trial court found: "Said memoranda were intended by plaintiffs and defendant to be receipts only, and neither plaintiffs nor defendant at any time intended or agreed that the printed provisions of any of said memoranda were to be binding on defendant. "There was at no time any verbal or written agreement between plaintiffs and defendant concerning any of said items of jewelry whereby defendant agreed to be liable for their loss occurring without the fault or negligence of defendant; ..." Judgment was rendered for defendant and plaintiffs appeal therefrom. [1] The context of the memorandum shows clearly that it served a dual purpose — as a receipt and as a specification of certain obligations to be performed with respect to the jewelry covered thereby. As a receipt it was subject to being disputed by oral evidence, but its contractual terms were subject to the parol evidence rule — not subject to extrinsic explanation or variation unless ambiguous. The Supreme Court said in Lawrence v. Premier Indem. Assur. Co., 180 Cal. 688, 698 [182 P. 431]: "Writings which are receipts, but which also contain contractual terms, have been held to be written contracts, not to be altered or added to, where either they purport to be, or the evidence shows that they are, the written memorial of the full understanding between the parties. Of this character is usually a bill of lading issued by a carrier acknowledging the receipt of the goods to be transported and specifying the terms of the *747 transportation. But unless the receipt appears to be of this character, the `parol evidence' rule has no application to it." Citizens Nat. T. & S. Bank v. Arrowhead Springs Beverage Co., 126 Cal. App. 550, 554 [14 P.2d 821]: "The third document is both a receipt and a contract because, in addition to acknowledging receipt of the stock, the agent agrees to deliver specified stock therefor or to return the stock so received (Lawrence v. Premier Indem. Assur. Co., 180 Cal. 688 [182 P. 431].)" See also Ames v. Southern Pacific Co., 141 Cal. 728, 732-733 [75 P. 310, 99 Am. St. Rep. 98]; Thompson v. Williams, 30 Kan. 114 [1 P. 47, 48]; Krutz v. Craig, 53 Ind. 561, 574; Cummings v. Baars, 36 Minn. 350 [31 N.W. 449, 450]. Appellants' first assignment of error is: "The finding that the memoranda accompanying the consigned jewelry were intended by the parties to be receipts only is very clearly contradicted by the evidence, both oral and documentary. In any event, whether termed `memoranda' or `receipts,' the question is: Did the acceptance thereof without objection upon receipt of the jewelry result in a contract between the parties altering the common law rules of bailment?" His Point Three is: "Each Memorandum Accompanying the Consigned Jewelry Constituted a Contract of Bailment Imposing Risk of Loss Upon Defendant." [2] To the end of proving that the parties did not intend the memorandum to be a contract or anything other than a receipt defendant introduced considerable evidence at variance with the terms of the instrument, as it had a right to do in aid of that defense. (P.A. Smith Co. v. Muller, 201 Cal. 219, 222 [256 P. 411]; Haidinger-Hayes, Inc. v. Marvin Hime & Co., 206 Cal. App.2d 46, 51 [23 Cal. Rptr. 455].) There was never any expressed understanding to the effect that the writing should serve only as a receipt and, as will be shown, defendant's parol evidence does not go to the promissory language of the memorandum upon which plaintiffs rely, i.e., "in the event said property is damaged, lost, stolen or destroyed, the undersigned will be responsible therefor, whether caused by the undersigned or by another over whom the undersigned has no control, and whether negligent or not; ..." Specifically, it was shown that the delivery of the jewelry was not "for inspection only" or for inspection at all. Although title doubtless did remain in Nelkin, the Hime Company had possession and (outside the writing) authority *748 to sell, which was the main purpose of all the dealings between the parties. The statement that Hime would return the property to Nelkin on or before 10 days from date of the memorandum was honored only in disregarding it; the items of jewelry had been in its possession on dates ranging back from March 25, 1958, to September 3, 1957. The phrase "in any such event" refers to damage, loss, or destruction of the goods, and the following language — "The undersigned will pay the said stated value thereof to the said William Nelkin & Co. on or before the expiration of the return date" — was, in the light of previous experience, a meaningless phrase because it was rare indeed that any item was returned to the consignor within 10 days from shipment to the consignee, and this 10-day limitation could not reasonably be confined to losses suffered only during the first 10 days of defendant's possession. The foregoing evidence does show consistent disregard of certain terms of the memorandum, but it does not affect the expressed obligation of Hime to pay to plaintiffs the "agreed value" as stated in the memorandum; in the absence of a different agreement in certain exceptional instances the specified price is the amount that was paid to plaintiffs for any item sold by defendant. That evidence does not touch upon the expressed obligation of defendant to bear a heavier burden than that imposed by law, i.e., liability for loss due to his own failure to use ordinary care (Haidinger-Hayes, Inc. v. Marvin Hime & Co., supra, 206 Cal. App.2d 46, 51); that is to say, a duty to bear the entire loss in the event of damage, loss, theft or destruction of the property "whether caused by the undersigned or by another over whom the undersigned has no control, and whether negligent or not." This matter was never discussed between the parties; neither of them ever said they would not be bound by the terms of the memorandum, particularly in relation to loss in case of theft, etc. A showing that they consistently disregarded other terms of the instrument does not warrant an inference that they intended the memorandum to be nothing but a receipt for goods delivered. It would be pressing the matter too far to hold that nonobservance of some of the terms of a contract evidences an implied understanding that no part of it shall have any efficacy. [3] Though this memorandum by its terms plainly contemplates signature by the consignee, the failure to sign is unimportant because defendant accepted the goods and memorandum *749 without comment, was charged with knowledge and actually knew the contents of the document and continued to hold possession of it and the jewelry. (See 12 Am.Jur. § 61, p. 551; Taussig v. Bode & Haslett, 134 Cal. 260, 266 [66 P. 259, 86 Am.St.Rep. 250, 54 L.R.A. 774]; Cunningham v. International Committee of Y.M.C.A., 51 Cal. App. 487, 490 [197 P. 140].) Receipt of the goods was evidenced to the consignor by a postal receipt signed and returned upon each consignment. [4] There is no doubt about the validity of an agreement of the consignee to bear the entire loss in the event of theft and the like. (Meyer Koulish Co. v. Cannon, 213 Cal. App.2d 419, 429, 432 [28 Cal. Rptr. 757].) The case of Haidinger-Hayes, Inc. v. Marvin Hime & Co., supra, 206 Cal. App.2d 46, is not opposed to the foregoing views for, although it grew out of this same robbery, the document under consideration was plainly a receipt which did not contain any risk of loss provision. See page 49 of the opinion. As the conclusions expressed above are dispositive of this appeal, we find it unnecessary to discuss other points raised by respective counsel. Judgment reversed. Fox, P.J., and Herndon, J., concurred. A petition for a rehearing was denied August 24, 1964, and respondent's petition for a hearing by the Supreme Court was denied September 24, 1964. Mosk, J., did not participate therein. NOTES [*] Retired Justice of the District Court of Appeal sitting pro tempore under assignment by the Chairman of the Judicial Council.

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-08-375-CR NO. 2-08-376-CR JERRY W AYNE W ILLIAMS APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY ------------ MEMORANDUM OPINION 1 ------------ In each of two cases, a jury convicted Appellant Jerry W ayne W illiams of two counts of aggravated sexual assault of a child and two counts of indecency with a child. The two complainants were his wife’s grandsons. The jury assessed Appellant’s punishment at seventy-five years’ confinement on each count of aggravated sexual assault of a child and twenty years’ confinement on each count of indecency with a child. The trial court sentenced him accordingly and ordered that 1  See Tex. R. App. P. 47.4. all sentences would run concurrently. In his sole point, Appellant contends that the trial court erred by admitting evidence in the punishment phase relating to an offense that had been previously expunged. Because we hold that the trial court did not abuse its discretion by admitting testimony of the former complainant recounting Appellant’s acts committed against her, we overrule Appellant’s sole point and affirm the trial court’s judgments. In 1984, “[a]ny and all records and/or files of [Appellant] concerning [his] arrest on August 4, 1980, in Tarrant County, Texas” were ordered expunged by a criminal district court. Hurst Police Department was included in the list of agencies specifically ordered to return to the court or to obliterate references in all of its records concerning the August 4, 1980 arrest. In the current cases, when the State was investigating an extraneous offense involving one of Appellant’s now adult daughters, M.J., it requested records from the Hurst Police Department. Included in the records received by the State was a transcript of a June 7, 1985 interview with another now adult daughter, C.E. In the interview, then thirteen-year-old C.E. told the police that Appellant had touched her breasts and female sexual organ on multiple occasions when she was seven and eight years old and had also forced her to touch his genitals. But the trial court did not admit any records or testimony about the records of the 1980 arrest. Instead, C.E. testified over objection that Appellant, her biological father, had sexually abused her, that it began when she was seven years old, that 2 it included his touching her genitals and vice versa, showers, and pornography. She also spoke about the long-term emotional effects of the sexual abuse on her life and testified that she had additionally witnessed Appellant touching M.J. inappropriately. A plain reading of the expunction statute demonstrates that “the statute’s intent is not to erase all evidence of the underlying conduct.” 2 Rather, after an expunction order is final, “the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited” and “the person arrested or any other person, when questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, may state only that the matter in question has been expunged.” 3 The statute does not limit independent evidence about the underlying conduct. 4 Consequently, even if the conduct about which C.E. testified was the same conduct for which Appellant was arrested on August 4, 1980, we hold that the trial 2  Tex. Educ. Agency v. T.F.G., 295 S.W .3d 398, 403 (Tex. App.—Beaumont 2009, no pet.). 3  Tex. Code Crim. Proc. Ann. art. 55.03 (Vernon 2006) (emphasis added). 4  See Bustamante v. Bexar County Sheriff’s Civil Serv. Comm’n, 27 S.W .3d 50, 53–54 (Tex. App.—San Antonio 2000, pet. denied) (holding that expunction statute was not violated when commission relied on “officers’ testimony about their personal observations of marijuana at Bustamante’s home and about her conduct during their investigation” and not “on expunged records or files”); see also Doty v. State, No. 03-03-668-CR, 2005 W L 1240697, at *5 (Tex. App.—Austin May 26, 2005) (mem. op., not designated for publication) (upholding officers’ testimony of events that led to an arrest because their testimony was based on their memories, not on expunged offense reports), pet. dism’d as improvidently granted, No. PD- 1159-05, 2007 W L 841112, at *1 (Tex. Crim. App. Mar. 21, 2007). 3 court did not abuse its discretion by admitting C.E.’s testimony. W e overrule Appellant’s sole point and affirm the trial court’s judgments. LEE ANN DAUPHINOT JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: June 10, 2010 4 

760 F.Supp. 362 (1991) SQUARE D COMPANY, Plaintiff, v. SCHNEIDER S.A., SQD Acquisition Co., Merlin Gerin S.A., Telemecanique S.A., Societe Parisienne D'Entreprises Et De Participations, Schneider USA, Inc., Elican Holdings, S & K Holdings, Inc., Standard, Komodikis & Co., Inc., Mahmoud Tiar, George Komodikis, Compagnie Financiere De Paribas, Banque Paribas and Societe Generale, Defendants. No. 91 Civ. 1438 (LBS). United States District Court, S.D. New York. March 28, 1991. *363 Wachtell, Lipton, Rosen & Katz, New York City (Bertram M. Kantor, of counsel), and Foley & Lardner, Milwaukee, Wis., for plaintiff. Skadden, Arps, Slate, Meagher & Flom, New York City (Stephen Axinn, Peter E. Greene, Clifford H. Aronson, of counsel), for defendants. OPINION SAND, District Judge. On March 26, 1991, this Court heard oral argument on defendants' Order to Show Cause why Counts I, II, III and IV of plaintiff's Amended and Supplemental Complaint ("Complaint") should not be dismissed. At that time the Court issued an oral Opinion denying defendants' motion and reserved the right to issue a subsequent *364 written Opinion. The following constitutes that written Opinion. In the motion presently before the Court, defendants move to dismiss the first four Counts of the Complaint pursuant to F.R. Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Counts I and II allege violations of § 7 of the Clayton Act, 15 U.S.C.S. § 18 (1990). Count III alleges violations of § 8 of the Clayton Act, 15 U.S.C.S. § 19 (1990). Count IV alleges that defendants have conspired to restrain trade in violation of § 1 of the Sherman Act, 15 U.S.C.S. § 1 (1990). Plaintiff seeks preliminary and permanent injunctive relief. I. BACKGROUND Plaintiff, Square D Company ("Square D"), is a Delaware corporation with its principal place of business in Palatine, Illinois. Square D is principally engaged in the business of producing electrical distribution and electrical control products for commercial and industrial use. The defendants in this action are a number of corporations and individuals all allegedly affiliated with Schneider, S.A. (hereinafter "Schneider"). The complaint alleges that defendant Schneider, acting through a group of commonly controlled companies known as Groupe Schneider, is engaged in an illegal plan to acquire Square D. The complaint states that on February 21, 1991, Schneider announced its intention to engage in a proxy fight for control of Square D's Board of Directors, the purpose of which is to install Directors who will effectuate consummation of a merger between Square D and Schneider. Complaint ¶ 62. The complaint also states that Schneider launched a hostile all-share tender offer for Square D on March 4, 1991. Complaint ¶ 65. With regard to the proxy fight, the complaint alleges that Schneider has proposed a slate of eleven candidates for Square D's Board. All eleven are allegedly "either employees, officers, directors, or consultants of Schneider or one or more of its subsidiaries." Complaint ¶ 122. The complaint further alleges that one of the Schneider nominees, defendant Mahmoud Tiar, sits on the Board of a Schneider subsidiary that competes with Square D in the United States. Complaint ¶ 124. It also asserts that five other nominees are officers or directors of two Schneider affiliated companies—Spie Batignolles and Jeaumont-Schneider —which in turn own a controlling interest in a third company (Jeumont Schneider Automation) which competes with Square D. Complaint ¶ 125. II. ANALYSIS In deciding a motion to dismiss, this Court is required to accept the plaintiff's allegations as true and construe those allegations in the light most favorable to plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The complaint will be dismissed only if the plaintiff can prove no set of facts that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir.1985). A. Counts I and II—Alleged Violations of § 7 of Clayton Act Section 7 of the Clayton Act, as amended, provides in pertinent part that "No [natural or legal] person engaged in commerce ... shall acquire, directly or indirectly, the whole or any part of the stock or ... assets of another person ... where in any line of commerce ... in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S. C.S. § 18. Counts I and II of the Amended Complaint allege that if Schneider succeeds in acquiring Square D, the effect will be to lessen actual or potential competition among certain products in the United States. Defendants' attack on the first two Counts of the Amended Complaint centers on the contention that plaintiff is not entitled to seek injunctive relief under § 7 of the Clayton Act because it lacks standing. *365 Defendants claim that Square D has not and cannot allege "antitrust injury." See Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 113, 107 S.Ct. 484, 491, 93 L.Ed.2d 427 (1986). Defendants recognize that in Consolidated Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 257-61 (2d Cir.), cert. dismissed, 492 U.S. 939, 110 S.Ct. 29, 106 L.Ed.2d 639 (1989), the Second Circuit held that a target of a hostile takeover had standing under § 7 of the Clayton Act because the target's allegation that it would "lose its ability to compete independently" was antitrust injury within the meaning of Cargill. Defendants further acknowledge that Square D has alleged that if Schneider's takeover attempt succeeds, Square D will lose its independence as a corporate entity. See Complaint ¶¶ 102, 118. Defendants' primary argument — which occupies a full twenty-two pages in their opening brief — is not that Minorco is distinguishable, but rather that it was wrongly decided. Whatever the merits of that argument, it has little relevance to the decision of this motion by this Court. Quite simply, Minorco is the law of the Second Circuit and this Court is bound to follow it. Defendants' second argument is that the instant case is distinguishable from Minorco, at least as to Count I of the Amended Complaint. Defendants argue that in Minorco, the challenged merger was between two entities which were engaged in actual competition, whereas in this case, Count I of the Amended Complaint alleges only the loss of potential competition. This Court does not read Minorco as turning on the presence of actual, as opposed to potential, competition between the acquiror and the target; rather, the case turned on the majority's interpretation of what constituted antitrust injury for purposes of § 7 of the Clayton Act. Of course, in Minorco, the Court had no occasion to address the issue of potential competition because that issue was not raised on the facts of that case. However, it appears to this Court that the reasoning of Judge Newman, writing for the majority in Minorco, would apply with equal force to the loss of potential competition. Moreover, as the complaint alleges and as amplified by plaintiff's counsel at oral argument, the line between actual and potential competition in this controversy may not be as clear as the division between counts in the complaint implies. The facts alleged in the complaint indicate that Schneider has entered the North American market through acquisitions of a Canadian and a Mexican company, and that it attempted unsuccessfully to acquire an American company. As such, the distinction between actual and potential competition in this case is somewhat unclear, especially in light of the suggestion of plaintiff's counsel that the relevant market for antitrust purposes may be North America, as opposed to just the United States. On the basis of the reasons set out above, this Court rejects defendants' contention that Count I — the potential competition claim — does not state a claim under Minorco. In addition, we note that Count II of the Amended Complaint, which also asserts a putative violation of § 7 of the Clayton Act, alleges a diminution in actual competition and is therefore clearly sufficient under Minorco. At oral argument, counsel for defendants made an oral application for a certification by this Court under 28 U.S.C. § 1292(b) (1988), with respect to this Court's decision not to dismiss Counts I and II of the Complaint. Under § 1292(b), certification is appropriate where there is a controlling question of law as to which there are substantial grounds for difference of opinion and where an immediate appeal may materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292(b). In this case, there is no substantial difference of opinion in this Circuit as to the issue of Square D's standing to raise the claims asserted in Count II of the Complaint. That the law of standing may be different in other Circuits or that Minorco may have received an unfavorable reception in some of the secondary literature does not create a substantial difference of opinion as to the law in this Circuit. As to *366 the standing issue raised by Count I of the Complaint, the potential for difference of opinion is greater. Yet because the line between actual and potential competition is blurred under the facts alleged in the Complaint, certification of the standing issue under Count I, but not Count II, would not be an appropriate way of achieving a prompt and efficient resolution of this case. Indeed, certification would be likely to hinder the resolution of this case, which is proceeding on an expedited schedule due to the immediacy of the issues it raises. This Court has scheduled a hearing on the merits with respect to five non-antitrust counts of the Complaint for May 13, 1991. Were this Court to certify the standing issue raised in Counts I or II of the Complaint under § 1292(b), it would be unrealistic to suppose that the Second Circuit would determine whether or not to accept the certification, have briefing and argument, and decide the issue prior to the time when this case will be resolved, in significant part or whole. Once this case is resolved, Schneider will have the opportunity to address the Minorco issue to the Second Circuit, and beyond if appropriate, on the basis of a full record developed in this Court. Accordingly, defendants' application for certification under § 1292(b) is denied. B. Count III — Alleged Violation of § 8 of the Clayton Act Section 8 of the Clayton Act provides, in pertinent part, that "No person shall, at the same time, serve as a director or officer in any two corporations ... that are ... engaged in ... commerce ... [and are] competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the antitrust laws." 15 U.S.C.S. § 19. Count III of Square D's complaint alleges that the defendants' plan to conduct a proxy fight violates § 8 because all of the defendants' nominees are "employees, officers, directors or consultants of Schneider or its subsidiaries." Complaint ¶ 122. In their briefs, the defendants concede that one of the nominees, defendant Mahmoud Tiar, is a director of a Schneider-affiliated company that competes with Square D.[1] However, defendants argue that the other ten nominees are not "officers or directors" within the meaning of § 8. Square D contends the other ten nominees are all "agents" of Schneider. Square D argues that because Schneider is a "person" within the meaning of § 8, and because some of Schneider's subsidiaries compete with Square D, the election of the nominees to Square D's Board would violate § 8, in that Schneider would have agents on the Boards of both Square D and its competitors. Defendants argue in response that Square D's "agency" theory of § 8 liability is flawed. They point out that § 8, on its face, applies only to "officers and directors," and not to agents. In deciding the validity of plaintiff's agency theory, we must begin by looking to the policies underlying § 8. The purposes of § 8 are to avoid the opportunity for the coordination of business decisions by competitors and to prevent the exchange of commercially sensitive information by competitors. See United Auto Workers, 97 F.T.C. 933, 935 (1981). Section 8 establishes a prophylactic rule designed to avoid potential antitrust violations before they occur. See SCM Corp. v. Federal Trade Comm'n, 565 F.2d 807, 811 (2d Cir.1977). In view of the prophylactic and remedial purposes of § 8, we decline to read it as literally as the defendants suggest. If such a literal reading were adopted, it would be easy for a company to interlock with a competitor and yet evade § 8 liability simply by calling its agents on the competitors' board something other than either officers or directors. Such a result would exalt form over substance, contrary to the intent of Congress in enacting the antitrust laws. See United States v. Yellow Cab *367 Co., 332 U.S. 218, 227, 67 S.Ct. 1560, 1565, 91 L.Ed. 2010 (1947). For purposes of deciding this motion to dismiss, at this early procedural stage of the case, this Court concludes that a cause of action under § 8 is stated where a company attempts to place on the Board of a competitor individuals who are agents of, and have an employment or business relationship with, such company. In such circumstances, the policies underlying § 8 — preventing the coordination of business decisions by competitors and the exchange of commercially sensitive information — are implicated. See United States v. Cleveland Trust Co., 392 F.Supp. 699, 711-12 (N.D.Ohio 1974); United Auto Workers, 97 F.T.C. at 935-36. Defendants urge that recognition of the agency theory advanced by Square D will be tantamount to holding that § 8 prevents a company from attempting to acquire a competitor through a proxy fight. We disagree. In the view of this Court, § 8 would not be implicated where a competitor seeks the election of an "agent" whose only purpose is to consummate a takeover and who does not otherwise have a business relationship — such as that of officer, director or employee — with the firm promoting his election. In such a case, the concerns underlying § 8 would not be implicated due to the limited purpose of the agency. In this case, however, Schneider's purported "agents" allegedly do have a business relationship with Schneider, and therefore the concerns underlying § 8 are implicated.[2] We note that with regard to five of the Schneider nominees a second basis exists for the possible application of § 8. Those five nominees — Messrs. Bitouzet, Coret, Nicolaidis, Reveniaud and Pecquer — are allegedly officers or directors of Spie Batignolles ("Spie") and Jeumont-Schneider, two companies allegedly controlled by Schneider. Those two companies, in turn, allegedly control a third company, Jeumont-Schneider Automation ("JSA"), which competes with Square D. Square D argues that the competition between Square D and JSA can be imputed to Spie and Jeumont-Schneider, such that the election of officers or directors of the latter two entities to the Square D Board would violate § 8. For purposes of this motion to dismiss, we accept plaintiffs' contention. In Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1205 (2d Cir.1978), the Second Circuit reversed a finding of § 8 liability premised on the theory that competition with a subsidiary could be deemed to a parent corporation, where there was no claim that the parent exercised substantial control over the business decisions of the subsidiary. The Kennecott Court declined to express an opinion on whether such deeming might be appropriate if the parent had exercised control over the subsidiary. This court believes that competition with a subsidiary may be properly deemed to a parent corporation where the parent closely controls or dictates the policies of its subsidiary. In this case, whether Spie and Jeumont-Schneider exercise such control *368 over JSA is a question of fact that precludes granting of the motion to dismiss. The final argument raised by defendants in support of their motion to dismiss is that Square D's § 8 claim is not ripe. Defendants argue that its nominees may not be elected, and that even if its nominees are elected and interlock results, the interlock would exist for only a very brief time prior to the merger of Square D into Schneider. For purposes of this motion, we reject defendants' view. Schneider has announced its intention to engage in a proxy fight in an effort to have its nominees elected to the Square D Board. As such, it cannot rely on its possible failure in this endeavor as an excuse to avoid judicial review. Likewise, the short life-span of the interlock that would allegedly result from the election of Schneider's nominees does not make Square D's § 8 claim unripe. While the short duration of the alleged interlock might bear on the degree to which the concerns underlying § 8 are implicated — and therefore on the appropriateness of injunctive relief — that fact is not dispositive on the question of whether Count III of the Complaint is subject to dismissal at this time. In sum, we hold that defendants' motion to dismiss plaintiff's § 8 claims must be denied. There are questions of fact as to whether the Schneider nominees are agents of Schneider and have a business relationship with Schneider. There are also questions of fact as to whether Spie and Jeumont-Schneider exercise substantial control over the policies of JSA. These fact questions cannot be resolved on a motion to dismiss and must await further proceedings. C. Count IV — Alleged Violation of § 1 of Sherman Act In Count IV of the Complaint, Square D alleges that the acquisition proposal and proxy fight initiated by Schneider are overt acts in furtherance of a conspiracy among Schneider, its subsidiaries and its bank to eliminate Square D as a competitor. See Complaint ¶ 131. Square D contends that this alleged conspiracy violates § 1 of the Sherman Act. Defendants argue that Count IV fails to state a claim because the requisite plurality of actors does not exist. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-69, 104 S.Ct. 2731, 2739-41, 81 L.Ed.2d 628 (1984). Defendants assert, in essence, that a corporation's officers, employees, agents and subsidiaries are legally incapable of conspiring with the corporation itself. We note the apparent inconsistency between Count III of the Complaint, which is premised on the assertion that Schneider's subsidiaries and agents are acting as one entity under Schneider's direct control, and Count IV, which appears to assert that the various defendants constitute discrete entities "previously pursuing divergent goals," id. at 771, 104 S.Ct. at 2741-42, capable of incurring § 1 liability. However, we recognize that we are dealing with a motion to dismiss and that alternative pleading is permitted in the federal courts, especially at the preliminary stages of litigation. While a corporation is legally incapable of conspiring with its own wholly-owned subsidiary, see id. at 774-77, 104 S.Ct. at 2743-45, Square D has alleged that Schneider conspired with its partially-owned subsidiaries, officers or employees of those subsidiaries, and its bank. At this stage of the proceedings, drawing all inferences favorably towards plaintiff, we cannot conclude that plaintiff's § 1 claims are legally insufficient. Therefore, especially in view of the fact that it appears that the proof of plaintiff's § 1 claims at a hearing would be no different from the proof offered in support of its other antitrust claims, we decline to dismiss Count IV. CONCLUSION For the reasons given above, defendants' motion to dismiss is denied in its entirety. So Ordered. NOTES [1] Defendants' counsel advised this Court at oral argument that Mr. Tiar has resigned from the Board of the competitor. Thus Mr. Tiar's status as a nominee may no longer be an issue in this case. [2] At oral argument, this Court inquired of defendants' counsel why Schneider had selected as nominees individuals with whom it was associated, thereby raising a potential § 8 issue. Counsel responded that the individuals were chosen because they were persons well known to Schneider. This response led to the obvious inquiry of why the route chosen by Mr. Tiar — that is, resignation — was not followed by the nominees, thereby strengthening significantly Schneider's contention that the § 8 issue is either unripe or moot. Schneider's counsel responded that resignation would require the nominees to give up longstanding relationships with the companies with which they served prior to becoming proxy nominees. The Court then inquired why the individuals did not simply resign as proxy nominees and be replaced by nominees unaffiliated with Schneider. Counsel indicated that the reason was Square D's contention that the designation of new proxy nominees at this time would be a violation of its bylaws and that Schneider would have to wait for another year to designate new nominees. This Court expresses no view as to Square D's contention that the designation of new nominees would have that consequence. We set forth the discussion above only to illuminate the reason why the § 8 issue is of such concern to the parties.

849 F.2d 610 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(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 Sixth Circuit.Carolyn YUILLE, Plaintiff-Appellant,v.COMPAK, INC., Defendant-Appellee. No. 87-2092. United States Court of Appeals, Sixth Circuit. June 21, 1988. Before MILBURN, RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges. ORDER 1 This case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a). 2 Plaintiff filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Michigan Elliott-Larsen Act, Mich.Comp.Law Ann. Sec. 37.2101 et seq., for sex discrimination in employment. Defendant ultimately moved for summary judgment. The district court held a hearing on the motion and thereafter entered summary judgment for defendant. This appeal followed. On appeal plaintiff has filed a brief pro se and a motion for the appointment of appellate counsel. Defendant has responded in opposition. 3 Upon consideration, we affirm for the reasons set forth in the district court's memorandum opinion filed October 13, 1987. 4 It is therefore ORDERED that the motion for counsel is denied and the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

276 F.Supp.2d 896 (2003) UNITED STATES of America, v. Michael SEGAL, et al. No. 02 CR 0112. United States District Court, N.D. Illinois, Eastern Division. August 7, 2003. *897 Harvey M. Silets, Gil M. Soffer, Jonathan S. Feld, Katten Muchin Zavis Rosenman, Chicago, IL, Daniel E. Reidy, Thomas P. McNulty, Jones Day, Chicago, IL, for Michael Segal. Daniel T. Brier, Donna A. Walsh, Myers, Brier & Kelly, LLP, Scranton, PA, Sal Cognetti, Jr., Foley, Cognetti, Comerford & Cimini, Scranton, PA, for Near North Ins. Brokerage, Inc. Virginia M. Kendall, U.S. Attorney's Office, Chicago, IL, for U.S. MEMORANDUM OPINION AND ORDER CASTILLO, District Judge. The Government presently moves to quash Michael Segal's ("Segal") subpoena served on Perkins Coie, LLC ("Perkins Coie"), the law firm that represents several potential government witnesses. In addition, Segal moves for an evidentiary hearing to discern whether potential government witness were acting as government agents and in violation of the Fourth Amendment when they received information hacked from the computer network of *898 Near North Insurance Brokerage, Inc., ("NNIB"). For the reasons set out herein, the Court quashes the subpoena on Perkins Coie and instead orders the firm to produce the documents specified in the subpoena for in camera inspection for a final decision on whether they will be produced to Segal. (R. 108-1; 113-1.) The Court also denies Segal's motion for an evidentiary hearing without prejudice as premature and unsupported at this time. (R. 97-1.) RELEVANT FACTS In the spring of 2002, NNIB discovered that a former employee from its information technology department, David Cheley ("Cheley"), had been hacking into the company's computer network between approximately the fall of 2001 and April 2002. Defense exhibits show that in October 2001, anonymous person(s), whom the defense asserts to be Cheley, transmitted hacked material, including allegedly privileged or confidential information, to two former NNIB executives, Matt Walsh ("Walsh") and Dana Berry ("Berry"). Both Walsh and Berry, along with another former executive, Tim Gallagher ("Gallagher") have been cooperating with the Government's investigation and may testify for the Government at trial. The record reveals that Cheley initiated contact with Walsh via email in late September 2001. In a September 21, 2001 email, Cheley introduced himself to Walsh as a former NNIB employee and wrote that he might have some information of interest to Walsh. (R. 98, Def.'s App., Ex. 5, Sept. 21, 2001 email.) That same day, Walsh answered Cheley's message by confirming his email address and sending Cheley his phone number. (Id., Ex. 8, Sept. 21, 2001 email.) Cheley's email reply assured Walsh that he did not "want to do anything that might cause problems for either you or myself" and that "taking the high road is the best way to do things." (Id., Ex. 15, Sept. 21, 2001 email.) On October 1, 2001, Walsh received a zip file from a "Lisa Chen" that allegedly contained several dozen privileged and confidential communications involving Segal and NNIB.[1] The day after receiving the first zip file, Walsh emailed Chen the following message: "I recognize that these were sent in error and contain information that upon first glance I did not wish to receive and you did not intend to send. Hence it has been deleted without any review." (Id., Ex. 17, Oct. 2, 2001 email.) Chen sent Walsh two other zip files of NNIB information during October 2001. Segal points to the following four interactions between the government witnesses and the FBI as particularly telling of the Government's knowledge and role in obtaining the hacked material. First, on October 31, 2001, an FBI agent filled out a 302 report describing information received from a source who provided an attached copy of an email from Segal to NNIB employees regarding the company's internal audit. (Id., Ex. 26, Oct. 31, 2001 302 Report.) Second, on February 8, 2002, Walsh sent an FBI agent an email with an attached "Lisa Rasmussen" email that contained a phone log of calls from NNIB employees to Walsh, Berry and Gallagher. Walsh indicated in his email to the agent that "[a]s noted in the past, from time to time I receive these anonymously. Again, I do not know if they are trying to intimidate us, set us up, or otherwise. If I receive any others I will advise." (Id., Ex. *899 21, Feb. 8, 2002 email.) Segal notes that the Government has neither produced a copy of this email, nor a corresponding 302 report memorializing the forwarding of the hacked information. Third, on September 19, 2002, an FBI agent prepared a 302 report memorializing a March 2002 conversation with Berry, wherein Berry stated that he had received an unsolicited email from "Lisa Fisher." Again, Segal stresses the fact that the FBI agent did not contemporaneously memorialize its knowledge of the hacked information. Finally, three of the government witnesses brought these anonymous emails to the attention of an FBI agent in a January 14, 2002 conversation. The agent's notes of the conversation contain the name Dave "Chiele" or "Shiele" along with the statement: "sending anonym [sic] e-mails to these 3(?)." (R. 112, Gov't's Mot. to Correct, Ex. A.) The agent recalls that one or more of the three witnesses expressed suspicion that Cheley might be sending them anonymous emails.[2] Whereas the potential government witnesses suspected that the anonymous emails were simply attempts to destroy their credibility, Segal contends that the information contained in the emails was solicited by the witnesses and passed onto the Government. (R. 97, Def.'s Mem. in Support of Mot. for Hr'g at 16.) Segal currently seeks an evidentiary hearing to ascertain how much hacked information was passed onto the Government, if the Government had any knowledge that it was hacked and if the witnesses were acting as government agents. At the same time, Segal argues that the hacked information might have been used by the witnesses for improper business-related purposes. (R. 111, Def.'s Resp. to Mot. to Quash at 11.) To support this argument and rebut the Government's allegation that Segal's pending civil litigation against the witnesses is not simply retaliatory litigation, Segal seeks from Perkins Coie: All documents, including but not limited to any correspondence, memoranda, facsimile transmissions, and e-mails, regarding Near North National Group, Inc., Near North Insurance Brokerage, Inc., Michael Segal, Dana Berry, Matthew Walsh, Tim Gallagher, Lori Shaw, or AON Corporation and any related entity, that were given, transmitted, or shown to the federal government, including any employees or agents of the United States Department of Justice, the United States Attorney's Office for the Northern District of Illinois, or the Federal Bureau of Investigation or any other law enforcement agency, from January 1, 2001 to the present. (R. 108-1, Mot. to Quash, Ex. 1.) The Government opposes both the enforcement of this subpoena and the granting of an evidentiary hearing. The subpoena, argues the Government, is simply a fishing expedition that seeks discovery already requested in the civil case and to harass and undermine the credibility of government witnesses. The Government primarily contends that a hearing is not warranted at this time because it would be premature given that Segal has not identified any evidence that he seeks to suppress. ANALYSIS I. Motion to Quash Segal's subpoena seeks the production of documents pursuant to Federal Rule of *900 Criminal Procedure 17(c). As delineated in the seminal Supreme Court case, Bowman Dairy Co., et al. v. United States et al., Rule 17 was not intended to supplement Rule 16 as an additional means of discovery, but primarily was intended "to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials." Bowman Dairy, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951). In order to require pre-trial production, the movant must show: "(1) that the documents are evidentiary and relevent [sic]; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general fishing expedition." United States v. Nixon, 418 U.S. 683, 699, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Nixon summarized the test by holding that the movant must clear the three hurdles of relevancy, admissibility and specificity. Id. A subpoena may also be quashed on the grounds of unreasonableness or oppressiveness. Fed.R.Crim.P. 17(c)(2). As a threshold issue, Segal argues that the Government has no standing to quash the subpoena served on Perkins Coie. A third party, however, in this case the Government, has standing to quash a subpoena if it infringes on their legitimate interests. United States v. Raineri, 670 F.2d 702, 712 (7th Cir.1982). In Raineri, the Seventh Circuit affirmed the quashing of a defense subpoena that sought to call a witness who had already been called by the prosecution and had already testified and been cross-examined. Id. The Court held that the prosecution's legitimate interests in quashing included "preventing undue lengthening of the trial, undue harassment of its witness, and prejudicial over-emphasis on [the witness's] credibility." Id. In the instant case, although Segal issued a pre-trial subpoena for documents rather than a subpoena to testify, the Government shares some of the same interests that were at issue in Raineri. The Government claims that the subpoena on the firm that represents several potential government witnesses is part of an overall strategy "designed to harass government witnesses and seek general discovery aimed at creating and perpetuating a superfluous and irrelevant side issue." (R. 113, Mot. to Quash at 16.) In addition, given the Government's representation that parallel discovery is being sought in the civil suit against the potential government witnesses, we conclude that the Government has a well-founded interest in preventing harassment of its witness. Furthermore, although Segal insists that the material is sought as evidence to rebut the allegations of retaliatory litigation, he also concedes that material may include material to be used for impeachment purposes. (R. 111, Resp. to Mot. to Quash at 12.) The Government thus has a legitimate interest in preventing over-emphasis on the witnesses' credibility. Therefore, the Government has standing to quash the subpoena. Next, the Court must determine whether Segal's subpoena meets the three hurdles of specificity, relevance and admissibility. To meet the specificity requirement, it is sufficient that the subpoena denote specific kinds of documents, which in this case was done. See United States v. King, 164 F.R.D. 542, 545 (D.Kan.1996). The relevance and admissibility requirements are related in that an inquiry into admissibility necessarily entails an inquiry into relevance. In re Martin Marietta Corp., 856 F.2d 619, 622 (4th Cir.1988). *901 Segal contends that the subpoenaed materials are admissible as evidence and relevant because the government witnesses may have provided the Government with documents that show whether NNIB's civil law suit is retaliatory litigation. (R. 111, Resp. to Mot. to Quash at 10.) In particular, Segal speculates that the material might show that the government witnesses were motivated by "ulterior or improper business-related reasons" and thus rebut the retaliatory litigation allegations. (Id. at 11.) Segal's contention as to what the subpoenaed materials will show, however, strikes the Court as conjectural and Rule 17(c) only allows for the production of documents that "a defendant knows to contain relevant evidence to an admissible issue at trial." United States v. Tokash, 282 F.3d 962, 971 (7th Cir.2002). Thus, because the Court is concerned that Segal is attempting to embark on a prohibited fishing expedition, the Court quashes the subpoena on Perkins Coie. The Court, however, is also sensitive to the defendant's need to prepare to his defense, and to that end, we order that Perkins Coie submit the documents for in camera review so that the Court might make a final determination as to their production to the defendant and modify the subpoena if necessary. See United States v. Arditti, 955 F.2d 331, 347-48 (5th Cir.1992) (stating that in most cases district courts will review the subpoenaed material in camera to determine whether production is warranted). If in camera inspection reveals that the materials are only relevant for impeachment purposes, the Court, in its discretion, will determine whether to allow their production solely for that purpose. Nixon, 418 U.S. at 701, 94 S.Ct. 3090 ("Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.") II. Motion for an Evidentiary Hearing Segal seeks an evidentiary hearing to establish "whether the government received hacked information from its cooperating witnesses in what appear to be numerous undocumented exchanges, and if so, what leads the government obtained from, and what use the government made of, the hacked information." (R. 116, Def.'s Reply at 23.) The decision whether to hold an evidentiary hearing is left to the Court's discretion. See United States v. Torres, 191 F.3d 799, 811 (7th Cir.1999). To obtain a hearing, a defendant must demonstrate that the parties dispute material issues of fact. Id. The defendant's burden may only be met by showing "definite, specific, detailed, and nonconjectural" facts. Id. A search or seizure by a private party does not implicate the Fourth Amendment unless the party is acting as an "instrument or agent" of the government. United States v. Crowley, 285 F.3d 553, 558 (7th Cir.2002). It is the movant's burden to establish by a preponderance of the evidence that the private party acted as a government agent. United States v. Feffer, 831 F.2d 734, 739 (7th Cir.1987). The relevant factors in determining whether a private party acted as a government agent include: (1) whether the government knew and acquiesced in the intrusive conduct; (2) whether the private party's purpose in conducting the search was to assist law enforcement; and (3) whether the government requested the action or offered the private actor a reward. Crowley, 285 F.3d at 558. A private search can be converted into a governmental search "only where there is some exercise of governmental power over the private entity, such that the private entity may be said to have acted on behalf of the government rather than for its own, private purposes." United States v. Shahid, 117 F.3d 322, 325 *902 (7th Cir.1997) (citing United States v. Koenig, 856 F.2d 843 (7th Cir.1988)) (internal quotations omitted). Thus, "[a] private party cannot be deemed a government agent unless it was induced to act by some government action." Id. at 325-26. Segal's theory that the government witnesses were acting as agents of the government, which is the basis for his request for an evidentiary hearing, is supported by many detailed and specific facts. Unfortunately, we find that his theory, and the facts supporting them, are at this time too conjectural, speculative and attenuated to warrant what is presently framed as an extensive, invasive and far-reaching inquiry. Specifically, the facts supporting knowledge and acquiescence on the part of the Government are flimsy, as are the facts supporting Cheley and government witnesses' motive and purpose in obtaining the information and passing it along to the Government. Finally, we are hesitant to grant an evidentiary hearing when Segal has wholly failed to identify the remedy he seeks for any established Fourth Amendment violation, be it suppression of evidence or an attack on the legitimacy of the indictment. Segal's current wait-and-see attitude, where he would like to hold an evidentiary hearing and then decide what relief he seeks, (R. 116, Def.'s Reply at 23), is unacceptable because it sets no parameters on the scope of the hearing itself.[3] Turning to the Government's knowledge of or acquiescence to the witnesses' receipt of hacked information, Segal identifies five supporting facts that he believes are sufficient to establish the Government's knowledge and thus justify an evidentiary hearing. As noted above, Segal points to the four instances where government witnesses either forwarded to the FBI communications they had received from an anonymous source or verbally informed FBI agents of contact by the source. Although these instances may demonstrate the Government's knowledge that the witnesses had been contacted by a hacker, they do not establish that the Government knew of and acquiesced to the intrusive conduct. That is, based on the contacts Segal has presented, there is no indication that the Government was aware that government witnesses solicited such information from Cheley or that the Government condoned or sanctioned such conduct. Indeed, it is clear from the facts presented to this Court that in at least two of the four instances the witnesses forwarded the information to the Government in part out of a concern that they were being "set up" by someone. (See R. 98, Def.'s App., Exs. 21-22.) These contacts with the Government could be construed as attempts to protect themselves as opposed to Government solicitation of or acquiescence in obtaining illegally hacked material. Nor is there any allegation that the Government knew Cheley personally and acquiesced in his private searches of the NNIB computer network. In another instance, the October 31, 2001 302 Report in which Walsh attaches a copy of an internal Segal email to employees regarding the NNIB audit, Segal claims that this message was stolen from the NNIB network. But Segal acknowledges that the names of the people who forwarded and received the email are redacted, (R. 97, Def.'s Mot. at 20), so this message could just as easily have been *903 forwarded to Walsh from a current employee of NNIB, and not been the result of hacking. Finally, Segal makes much of the witnesses' lawyer's representation in the civil suit that "we're not using these emails for any purpose, and ... these emails are only going to the FBI." (R. 98, Def.'s App., Ex. 1.) But when read in context, this statement only indicates that the emails were forwarded to the FBI in order to protect the witnesses from a potential set-up by Segal and NNIB, not that they were being forwarded to substantively assist the Government in its case. In short, Segal fails to offer any specific, detailed facts that support the premise that the witnesses were acting as government agents and thus we conclude that the facts presented are simply too conjectural and speculative to support an evidentiary hearing at this time. Furthermore, Segal's own argument in his memoranda to enforce the subpoena against Perkins Coie suggests that the witnesses were motivated by an improper business-related purpose, rather than an inducement by the government. (See R. 97, Def.'s Mem. in Support of Mot. for Hr'g at 1 ("[t]hese former Near North employees sought to gain a competitive advantage over Mr. Segal and Near North"); R. 111, Def.'s Resp. to Mot. to Quash at 11 ("any evidence that the actions of the witnesses were undertaken for ulterior or improper business-related reasons further substantiate the legitimacy of NNIB's civil suit")). In addition, excerpts from a hearing in the civil suit also suggest that Segal believes that the witnesses' actions were motivated by a business purpose. (R. 98, Def.'s App., Ex. 1.) In the motion for an evidentiary hearing, however, Segal contends that the government witnesses might have been acting as government agents and procuring the information for the Government, not for their own ends. These two arguments are inconsistent, and any contention that the witnesses were acting on an improper business-related purpose weighs against finding agency. See Crowley, 285 F.3d at 558 (whether the private party's purpose for conducting the search was for own ends or to assist law enforcement efforts is critical to agency determination). The Court observes that an evidentiary hearing might be necessary in the future. At this point, however, delving into whether the government witnesses acted as agents will in essence put the witnesses on trial before commencement of the criminal trial. While reluctant to open this Pandora's box, we nevertheless are mindful of Segal's Fourth Amendment rights. If Segal renews his motion for an evidentiary hearing and outlines specific evidence that he seeks to suppress and the legal and factual grounds upon which he relies, the Court would carefully review the motion. CONCLUSION For the foregoing reasons, the Court quashes Segal's subpoena on Perkins Coie and instead orders the firm to produce the subpoenaed documents for in camera inspection no later than August 27, 2003 for a determination as to whether their production to the defense is warranted. (R. 108-1; 113-1.) The Court also denies without prejudice Segal's motion for an evidentiary hearing. (R. 97-1.) NOTES [1] Segal notes in his motion for an evidentiary hearing that Cheley used several aliases, including "Lisa Chen," "Lisa Fisher" and "Lisa Rasmussen" in his email correspondence with the government witnesses. What is not clear from the emails, however, is whether Walsh and the others immediately knew that these alias emails were in fact sent by Cheley. [2] A second page of the agent's notes also state in the margin: "one e-mail sent by hacker" and in the center of the page: "told that he knew/heard NNIB was out of trust." (R. 112, Gov't's Mot. to Correct, Ex. A.) The agent has no present recollection of this second page of notes. (R. 112, Gov't's Mot. to Correct at 1.) [3] Furthermore, Segal fails to articulate why these issues cannot be addressed on an ad hoc basis at trial. The Government has assured Segal and this Court that no hacked material (which Segal is well aware based on his own forensic investigations) will be used as evidence at trial, (R. 115, Gov't's Resp. at 5); if the Government later changes course and attempts to do so, this Court could entertain a motion in limine or motion to suppress at that time.

945 P.2d 1351 (1997) The PEOPLE of the State of Colorado, Petitioner, v. Rafael RODRIGUEZ, Respondent. No. 96SC230. Supreme Court of Colorado, En Banc. September 15, 1997. Rehearing Denied October 20, 1997. *1354 Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Roger G. Billotte, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner. David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, for Respondent. Justice BENDER delivered the Opinion of the Court. We granted certiorari in People v. Rodriguez, 924 P.2d 1100 (Colo.App.1996), to review *1355 the judgment of the court of appeals overturning the conviction of respondent Rodriguez for possession of a schedule I controlled substance, heroin.[1] The court of appeals reversed the district court's denial of Rodriguez's motion to suppress, holding that the detention of Rodriguez constituted an illegal arrest which tainted Rodriguez's later consent to search. We affirm the holding of the court of appeals, but we employ different reasoning. We hold that when an officer possesses reasonable suspicion that a traffic offense has been committed and the officer has decided not to give the driver a ticket for the traffic offense, the officer may request identifying information from the driver, such as a driver's license, vehicle registration, and proof of insurance. We hold this request for information is constitutionally permissible because the officer's conduct is to be evaluated on the basis of an objective standard. The officer's subjective decision not to give a ticket does not strip the officer of legal justification to make further inquiries. The circumstances of this case, that is, minor discrepancies in the van registration and the lack of the Nader safety label on the doorjamb of the van, furnished reasonable suspicion for the trooper to investigate further whether the van was stolen. However, the ninety-minute detention of Rodriguez and the ten-mile forced drive in this case exceeded the permissible parameters of an investigatory stop. The temporary detention escalated into an arrest unsupported by probable cause to believe that the van was stolen, in violation of the Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado Constitution. Rodriguez's arrest was illegal. His consent to search was not sufficiently attenuated from this illegal arrest which immediately preceded his consent. Hence, we conclude that the heroin discovered in the search of Rodriguez's van must be suppressed. We affirm and remand to the court of appeals to return this case to the district court for further proceedings consistent with this opinion. I. On September 30, 1992, Rodriguez was traveling east on Interstate 70 (I-70) in his van, accompanied by his pregnant wife, their three toddlers, and a friend named Miguel Munoz. They were returning from Las Vegas, Nevada, to their home in Chicago, Illinois. Rodriguez was born in the Commonwealth of Puerto Rico and speaks little English. Munoz was born in Mexico and is now a resident of Illinois. Munoz is bilingual in Spanish and English. At approximately 7:25 a.m., as Rodriguez was driving on a winding section of I-70, west of Vail, a Colorado state trooper observed Rodriguez's van weave across the continuous white line on the right shoulder by approximately half the width of the van, then cross over and touch the white-dashed line on the other side of its lane. The trooper followed the van approximately a mile and a half to a straight stretch of highway near the Wolcott exit on I-70. There the trooper stopped the van on the shoulder of the interstate to determine whether the driver was intoxicated. Upon being told by the trooper that he was weaving, Rodriguez stated that he and his family were driving from Las Vegas to Chicago. He said he was very tired. The trooper testified it was obvious that Rodriguez had not been drinking. The trooper decided that he would not issue a traffic citation to Rodriguez for failure to drive within a single lane (weaving).[2] The trooper requested Rodriguez's driver's license and vehicle registration. Rodriguez produced these documents and the trooper instructed him to wait in the van. The trooper also observed and recorded the van's vehicle identification *1356 number (VIN) from the dashboard by looking through the driver's side corner of the vehicle's windshield. The trooper ran a check on Rodriguez's license, registration, and VIN. The license was valid, the vehicle was properly registered under Rodriguez's name, and the van had not been reported stolen. The VIN on the dashboard matched the VIN on the registration card and showed no signs of alteration or tampering. However, the trooper's examination of the vehicle registration revealed two discrepancies. The registration card indicated that the letters on the van's license plate were "CAW," but the actual letters on the license plate were "CAD." In addition, the registration card indicated that the van was a 1985 model, while the computer check showed that the van was a 1980 model. The registration card was hand written; the trooper testified he gave little weight to the registration because of this fact. Rodriguez also provided the trooper with a document from the Illinois Department of Motor Vehicles concerning his handwritten registration card. At this time, however, the trooper did not read the document and later testified he was under the impression that the paper was a reminder for registrants to check their plates against the card for accuracy. Because of the discrepancies with the registration the trooper decided to compare the VIN from the dashboard and registration with the VIN on the "Nader Label," which is a sticker that is glued to the doorjamb on the driver's side of an automobile. The trooper testified that this label appears on "99 percent" of vehicles and that it "only takes a couple seconds" to compare the VINs. Without requesting permission, the trooper opened the driver's side door of the van and found that the van did not have a Nader Label. In the absence of a Nader Label, the trooper wanted to compare another VIN on the van to the VIN from the dashboard and registration card. The trooper was aware that automobile manufacturers often place the VIN in another, inconspicuous location. The trooper did not know the location of the hidden VIN. He believed that a state patrol auto theft specialist in Grand Junction would be able to tell him where the hidden VIN could be found. The trooper did not want to search for the hidden VIN on the shoulder of the interstate because of his concern for his safety and for the safety of the occupants of the van. He decided to conduct further investigation at a better location ten miles west, the state patrol headquarters in Eagle. The trooper approached Rodriguez, explained the discrepancies concerning the plate numbers and the manufacture date of the van, and requested that Rodriguez follow him to the state patrol office in Eagle, which was ten miles west from where the van was stopped and in the opposite direction from which Rodriguez was traveling. Because Rodriguez was not fluent in English he had difficulty understanding this request. Munoz, who was sitting in the passenger seat, began to interpret. Rodriguez, through Munoz as interpreter, replied that he did not want to follow the trooper to Eagle. Rodriguez said they were too tired and wanted to continue on their way eastward. The trooper told Rodriguez that he would disable and impound the van unless Rodriguez complied with his request to return to Eagle. Rodriguez then agreed to follow the trooper. At this point Rodriguez had been detained for forty-two minutes. The trooper, followed by Rodriguez, left the roadside location at 8:07 a.m. and arrived in Eagle approximately fourteen minutes later, at 8:21 a.m. During this drive, the trooper contacted a second trooper and asked for assistance in Eagle. At 8:25 a.m. at the patrol headquarters in Eagle, the second trooper assembled a video camera and began videotaping the van and the area around the van. The time and the factual summaries discussed below are based in part upon this video which was introduced as evidence during the hearing on Rodriguez's motion to suppress. Because it was a cold morning, the first trooper told Rodriguez's wife and their children *1357 to go to a nearby diner to get warm, but he required Rodriguez and Munoz to remain with the vehicle. While the first trooper went inside the headquarters to telephone the auto theft specialist regarding the location of the hidden VIN, the second trooper remained outside with the van to ensure that Rodriguez and Munoz did not leave. Munoz attempted to explain the discrepancies on the registration card to the second trooper by showing him the notice from the Illinois Department of Motor Vehicles which informed Rodriguez, among other things, that "the license plate number on your current identification card is incorrect." In conversation with Rodriguez and Munoz the second trooper read this notice aloud at 8:32 a.m. but failed to acknowledge that this document explained the one digit difference between the van's plates and the registration card. Instead, the second trooper changed the subject of the conversation by asking both Munoz and Rodriguez their respective countries of birth. When Rodriguez answered that he was born in Puerto Rico, the trooper initially did not recognize that this entitled Rodriguez to United States citizenship.[3] The first trooper emerged from the headquarters and opened the hood of the van. He quickly located a VIN under the hood which matched the VIN located on the dashboard and the one written on the vehicle registration card. This final match occurred at 8:36, seventy-one minutes after Rodriguez's van was initially stopped on I-70. The first trooper testified that at this point, he was satisfied that Rodriguez was the rightful owner of the van. Nevertheless, the detention of Rodriguez and Munoz, who by this time had been joined by Rodriguez's wife and three children, continued. All waited in the van for an additional fifteen minutes under the supervision of the second trooper while the first trooper returned to the office. At 8:48 a.m., the first trooper emerged from the office and approached the driver's side of the van with Rodriguez's registration and other documents in hand. The trooper explained that there was an apparent clerical error on the registration card and advised Rodriguez to "get in and get it corrected." He suggested that Rodriguez "talk to someone" about the absence of a Nader Label on the doorjamb. At 8:50 a.m. the first trooper instructed Rodriguez to step out of the van and told Munoz and the others to remain inside the van. Rodriguez was led to the rear of the vehicle, where the two troopers were joined by a third. The three uniformed, armed troopers, considerably larger than Rodriguez, surrounded him in a semi-circle. The first trooper returned Rodriguez's documents to him, stating, "I'll let you have all this back," and asked if Rodriguez's wife was "okay." The following exchange then took place: Trooper 1: You're free to go now. Would it be all right if we searched your van? Rodriguez: Pardon? Trooper 1: Would you mind if we looked in your van for any illegal weapons? Rodriguez: Sure. Trooper 1: Would that be okay? Trooper 2: Contraband, any contraband? Are you carrying any contraband? Rodriguez: Huh? Trooper 2: Contraband? Guns? Rodriguez: No, no. Trooper 2: Guns? Rodriguez: No guns. Trooper 2: No guns? Trooper 1: Is it okay? Rodriguez: It's okay. Rodriguez reached into the van and retrieved the keys from the ignition. He opened the rear door of the van and pushed aside a large stereo speaker which dominated *1358 the entrance to the van. Rodriguez's wife and children were instructed to return to the diner across the street, but the second trooper stated, "He [Rodriguez] stays here with us." After the search commenced, but prior to the discovery of the drugs, the second trooper engaged in a recorded conversation with another trooper in which the second trooper described the initial stop on the highway as an "interdiction stop." He further stated that the occupants of the vehicle were "applicants for law enforcement," and "[t]hey're gonna receive law enforcement," commenting that "one's from Puerto Rico, the other one's from Mexico." For the next 25 minutes, the first two troopers conducted a meticulous search of the van. At 9:15 a.m., one of the troopers removed from the large stereo speaker several balls of electrical tape. A trained drug detection dog alerted to the balls, which were later determined to contain heroin. Rodriguez and Munoz were arrested, and Rodriguez was charged with possession of a schedule I controlled substance. The record is unclear as to exactly when the drug detection dog was requested by the first trooper. The Eagle County Sheriff's deputy who transported the dog testified that at 8:00 a.m. the state patrol dispatcher requested the assistance of the dog because the first trooper intended to search a vehicle. The deputy testified he arrived at the State Patrol headquarters in Eagle fifteen minutes after receipt of this call, and that when he arrived on the scene, at approximately 8:15 a.m., the troopers were already conducting their search. According to the testimony of the first trooper, he did not return to Eagle with Rodriguez and Munoz until 8:21 a.m. Thus, the request occurred sometime between 8:00 a.m. and 9:00 a.m. The district court did not resolve this discrepancy, but did find that the request for the drug detection dog could have been made as early as the roadside detention. Rodriguez filed a motion to suppress the heroin. After conducting an evidentiary hearing, the district court denied the motion to suppress, ruling that the initial stop and the request for driver's license and registration were valid. The district court ruled that the discrepancies in the registration and license plate and the problems with the VIN created reasonable suspicion for the trooper to impound the van. The district court then concluded that Rodriguez voluntarily consented to the search of the van. The court commented that it was concerned that the troopers called for a drug detection dog as early as they did, but nevertheless, under the totality of the circumstances, ruled the search legal. The court of appeals reversed the district court's denial of Rodriguez's motion to suppress. The court reasoned that the stop of the van was an appropriate investigatory stop based on the trooper's reasonable suspicion that Rodriguez was driving under the influence of alcohol. Once the trooper was satisfied that the driver was sober and decided not to ticket him for weaving, the court held that the trooper lacked reasonable suspicion to make further inquiries of Rodriguez. Subsequent information given by Rodriguez, such as his license and registration card, was the fruit of his illegal detention. The court applied the three part test articulated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), to hold that the invalid stop tainted Rodriguez's consent to search and ruled that the heroin seized in the search must be suppressed. At the request of the People we granted certiorari.[4] We affirm the court of appeals, but differ in our reasoning. II. Our law concerning searches and seizures is extensively developed. With respect *1359 to the issues raised by this case we view the Colorado and United States Constitutions as co-extensive and therefore follow federal precedent as well as our own. Generally, warrantless searches and seizures are per se unreasonable unless they satisfy one of the specifically established and clearly articulated exceptions to the warrant requirement. One such exception is an arrest based upon probable cause. A second exception is a brief investigatory stop supported by a reasonable suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). Because a limited seizure of a person is authorized by a standard of reasonable suspicion, which is less than the standard of probable cause, the investigatory stop must be "brief in duration, limited in scope, and narrow in purpose." People v. Tottenhoff, 691 P.2d 340, 343 (Colo.1984). Stopping a motor vehicle implicates Fourth Amendment protections. An officer may engage in an investigatory stop of a car and then question the driver without running afoul of the Fourth Amendment's prohibition against unreasonable searches and seizures provided three conditions exist: (1) a reasonable suspicion that criminal activity has occurred, is taking place, or is about to take place; (2) a reasonable objective for the intrusion; and (3) a reasonable connection between the scope and character of the intrusion and its objective. See People v. Altman, 938 P.2d 142, 144 (Colo.1997); People v. Davis, 903 P.2d 1, 4 n. 6 (Colo.1995); People v. Weston, 869 P.2d 1293, 1296 (Colo.1994). In determining the validity of an investigatory stop, the district court must consider whether, under the totality of the circumstances, the "specific and articulable facts" known to the officer at the time of the encounter and the rational inferences from these facts create a "reasonable suspicion of criminal activity to justify the intrusion into the defendant's personal security." People v. Thomas, 660 P.2d 1272, 1274 (Colo.1983); see People v. H.J., 931 P.2d 1177, 1180 (Colo. 1997). The People contend that the court of appeals erred in its determination that the trooper lacked reasonable suspicion to make further inquires once he was satisfied that Rodriguez was not intoxicated and he determined not to ticket Rodriguez for weaving. We agree. The court of appeals applied the holding of People v. Redinger, 906 P.2d 81, 85 (Colo. 1995), to invalidate the trooper's request for information from Rodriguez because the purpose of the stop was accomplished when the trooper concluded that Rodriguez was sober and decided not to ticket him for weaving. Thus, the request for a driver's license and registration information was improper because it was not based on a reasonable suspicion that Rodriguez had committed or was committing a traffic offense. The court noted that if the request for information had been permitted after the trooper decided not to ticket Rodriguez for any traffic offense, this request would render meaningless the statutory requirement that a driver be required "to hand" an officer identifying information upon the officer's reasonable suspicion that the driver committed a traffic offense.[5] Recent pronouncements of our court and the United States Supreme Court clarify that in reviewing an officer's conduct in making an investigatory stop, a reviewing court *1360 must base its decision on an objective analysis of whether reasonable suspicion exists to justify the temporary intrusion and not upon the subjective intent of the arresting officer. See Whren v. United States, ___ U.S. ___, ___, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996); Altman, 938 P.2d at 146. An officer's ulterior motives will not strip the officer of legal justification to conduct an investigatory stop. As discussed by the Supreme Court in Whren, ___ U.S. at ____, 116 S.Ct. at 1775, the objective test eliminates the evidentiary difficulty of establishing the subjective intent of the arresting officer. The objective test also serves as an acknowledgment that the Fourth Amendment's requirement of reasonableness "allows certain actions to be taken in certain circumstances, whatever the subjective intent." Id. We do not mean to hold that trial courts must exclude, on relevancy grounds, all testimony regarding an officer's subjective beliefs at a hearing on a motion to suppress. See People v. Sosbe, 789 P.2d 1113, 1115 (Colo.1990). An officer's subjective assessment of the facts may be helpful to a district court's understanding of the facts confronting the officer at the time of the search. In addition, an officer's subjective intentions may affect his credibility. However, the critical holding of Whren, that an officer's illicit motives will not invalidate an otherwise valid search or seizure, requires disapproval of the decision of the court of appeals on this point. Here, the trooper stopped Rodriguez suspecting him of two criminal offenses: weaving, which the trooper observed, and driving under the influence. Once the trooper determined that Rodriguez was sober he still possessed a reasonable suspicion that Rodriguez committed the traffic offense of weaving. His suspicion of weaving did not dissipate even though he decided not to issue Rodriguez a citation for weaving. The trooper's subjective decision not to ticket for weaving did not strip him of his authority to inquire further concerning the traffic offense of weaving. We hold that the trooper possessed an objectively reasonable and articulable suspicion that Rodriguez had engaged in criminal activity, namely, the traffic offense of weaving, and thus the trooper was authorized to request identifying information from Rodriguez. The request for identification and information was reasonably related in scope and character to the investigation of the traffic offense. See People v. Schreyer, 640 P.2d 1147, 1150 (Colo.1982) ("Any temporary police detention made for the purpose of questioning a suspect who might otherwise escape is limited to determining an individual's identity or obtaining an explanation of his behavior."). Thus, we hold that the trooper's request for a driver's license and registration satisfies the conditions set forth in our case law for an investigatory detention and complies with the Fourth Amendment's requirement of reasonableness. III. A. Next we address whether the trooper's detention of Rodriguez to investigate whether the van was stolen constituted a valid investigatory stop. During a valid traffic stop an officer may request a driver's license, vehicle registration and proof of insurance. See Redinger, 906 P.2d at 85-86. An officer may also run a computer check for outstanding warrants so long as this procedure does not unreasonably extend the duration of the temporary detention. See People v. Cobb, 690 P.2d 848, 852 (Colo.1984). These intrusions are brief and minimal. See H.J., 931 P.2d at 1182. Once a driver produces a valid license and proof that he is entitled to operate the vehicle, "he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning." United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir.1997). Rodriguez produced a valid license and a valid registration card. The trooper testified *1361 that computer checks on the tendered information "came up clear." However, Rodriguez's hand-written registration card contained two irregularities. The license plate number was incorrect by one letter and the year of the van's manufacture did not match the information obtained from the computer check. In addition, no Nader Label existed on the doorjamb of the van. The People argue that these facts provided the trooper with reasonable suspicion to believe that the car might be stolen, and justified further detention of Rodriguez for additional investigation. We agree. Insufficient proof of registration for a vehicle may provide reasonable suspicion to believe that the car may be stolen. See H.J., 931 P.2d at 1181-82 (driver's failure to provide registration provided reasonable suspicion that car was stolen); People v. Litchfield, 918 P.2d 1099, 1103 (Colo.1996)[6] (during traffic stop of leased car, reasonable suspicion existed to detain occupants temporarily who provided two unsigned rental agreements, only one of which matched vehicle; passenger gave inconsistent statements as to the purpose of the trip; and vehicle was beyond geographical restrictions imposed by rental agreement). The facts of this case appear to be unusual because the vehicle registration was hand written and accompanied by an official document explaining that the registration card contained an error. We agree with the district court's assessment that "it's significant that there are two discrepancies rather than one." The two errors on the registration card coupled with the absence of a Nader Label furnished the trooper with reasonable suspicion that the van might be stolen. Hence, we hold that the trooper possessed a reasonable suspicion of criminal activity which authorized him to investigate further.[7] B. Next we address whether the purpose of the detention was reasonable. The trooper's stated purpose was to detain the van to locate a hidden VIN. A VIN serves three purposes. First, it simplifies and increases the accuracy of recall campaigns. See 49 C.F.R. § 565.1 (1996). Second, the VIN (as well as several other pieces of information) appears on a label which vehicle manufacturers are required to affix to most vehicles to assist consumers in determining which of the federal standards regarding safety and theft prevention apply to their vehicles. See 49 C.F.R. § 537.1 (1996); see also 49 U.S.C. § 30115 (1994). This label is commonly referred to as the "Nader Label." Third, the VIN aids in auto theft prevention. In 1985, the Department of Transportation promulgated the Federal Motor Vehicle Theft Prevention Standard, which requires manufacturers to affix the VIN permanently onto eighteen major automobile parts on most vehicles. See 49 C.F.R. § 541 (1996). The purpose of the Theft Prevention Standard is to "reduce the incidence of motor vehicle thefts by facilitating the tracing and recovery of parts from stolen vehicles." 49 C.F.R. § 541.2 (1996). Because one of the express legislative purposes for affixing a VIN onto automobile parts is to assist law enforcement officers in recovering stolen vehicles, we hold that the trooper possessed a reasonable purpose in temporarily detaining Rodriguez and his van to compare the VIN obtained from the registration card and the dashboard with a hidden VIN located on the vehicle.[8] C. Next we address whether the stop, given the scope and character of the *1362 intrusion, was reasonably related to its purpose, the third prerequisite for an investigatory stop. This seizure of the person must be "brief in duration, limited in scope, and narrow in purpose." Tottenhoff, 691 P.2d at 343. When an investigatory stop involves more than a brief detention and questioning, the stop escalates into an arrest, which must be supported by probable cause. See Schreyer, 640 P.2d at 1150. Only when the officer possesses probable cause to arrest may he exceed the parameters of an investigatory stop. See Davis, 903 P.2d at 4; Tottenhoff, 691 P.2d at 344 (citing People v. Reynolds, 94 Ill.2d 160, 68 Ill.Dec. 122, 445 N.E.2d 766 (1983) (traffic stop ripened into an arrest when officer told defendant to drive and follow him to police station)). To determine whether the parameters of an investigatory stop have been exceeded, we hold that the district court must consider at least four circumstances: First, the length of the detention. The brevity of the intrusion "is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion." United States v. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); see Cobb, 690 P.2d at 852 (officer may run a computer check for outstanding warrants during an investigatory stop provided that this procedure does not unreasonably extend the detention); see generally 4 Wayne R. LaFave, Search and Seizure § 9.2(f), at 58-65 (3d ed. 1996). Second, whether the officer diligently pursued the investigation during the detention. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985) ("[W]e consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."); Place, 462 U.S. at 709, 103 S.Ct. at 2645 (holding that an officer's diligent pursuit of an investigation during the detention is a factor in determining the reasonableness of an investigatory stop). Third, whether the suspect was required to move from one location to another. See Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 1328, 75 L.Ed.2d 229 (1983) (moving suspect from one location to another during an investigatory stop, in absence of safety and security reasons, exceeded scope of stop); People v. Mickens, 734 P.2d 646, 649 (Colo.App.1986); see generally 4 LaFave, supra § 9.2(g). Fourth, whether there were alternative, less intrusive means available and "whether the police acted unreasonably in failing to recognize or to pursue [them]." Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575; see Royer, 460 U.S. at 505, 103 S.Ct. at 1328. Here, Rodriguez was detained for ninety minutes on a suspicion that the van was stolen. The reason given for this prolonged detention was that the trooper did not know the location of the hidden VIN. If the trooper could not, with reasonable brevity and minimal intrusiveness, locate another VIN on Rodriguez's vehicle for comparison with the registration and the VIN on the dashboard, he lacked constitutional authority to continue to detain Rodriguez. Compare Sharpe, 470 U.S. at 683, 105 S.Ct. at 1574 (twenty-minute detention was reasonable), with Place, 462 U.S. at 709-10, 103 S.Ct. at 2645-46 (ninety minute detention of suspect's luggage was "prolonged" and exceeded scope of stop), and People v. Hazelhurst, 662 P.2d 1081, 1086 (Colo.1983) (twenty to thirty-minute detention exceeded scope of stop), and Mickens, 734 P.2d at 649 (one-and-one-half hour detention exceeded scope of stop). The trooper did not diligently pursue the investigation during this ninety-minute detention. *1363 Rather than search for the hidden VIN at the Wolcott exit out of harm's way of the interstate, the trooper chose to force the occupants of the van to travel ten miles in the opposite direction of their destination. The forced return to Eagle was not calculated to dispel quickly the suspicion that the van was stolen; nor did it constitute a brief and minimal intrusion for Rodriguez. The return to Eagle for further investigation is not consistent with a diligent investigation. In Eagle, the trooper discovered the matching VIN under the hood at 8:36 a.m., which dispelled his suspicions that the van was stolen. He continued to detain Rodriguez and his family for an additional fifteen minutes for no apparent reason before returning Rodriguez's documents and informing Rodriguez that he was free to leave. This fifteen minute delay also is not indicative of a diligent investigation. The trooper testified that he required the van to return to Eagle because of safety concerns had he searched for the hidden VIN on the shoulder of I-70. The district court agreed, stating the interstate presents "risks" and that "[i]t's certainly arguable that it's nicer to do things that are going to take a little bit of time in town where there's a restaurant right across the street, whether you use it or not, rather than out on an interstate highway." However, an investigatory traffic stop does not permit a prolonged detention intrusive to the point where the occupants of a vehicle are forced to wait in a restaurant. The trooper detained Rodriguez near the Wolcott exit of I-70. Assuming safety was an issue, and we feel compelled to note that the trooper detained Rodriguez for over forty minutes on the interstate highway before coming to this conclusion, then the appropriate measure was to move off of the interstate at the Wolcott exit to conduct further investigation. We conclude investigation at the Wolcott exit was an available alternative to the forced drive back to Eagle. The trooper unreasonably failed to recognize or pursue this alternative. In reaching this conclusion we are mindful of the Supreme Court's warning to reviewing courts not to engage in creative post hoc evaluations of police misconduct, but to determine only whether the police acted unreasonably in a given case. See Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575. In summary, we hold that the trooper's detention of Rodriguez, which started as a traffic stop near the Wolcott exit on I-70 and ended ninety minutes later and ten miles away in Eagle, was an investigatory stop which exceeded the reasonableness requirement of the Fourth Amendment to the United States Constitution. We hold that the traffic stop in this case escalated into an arrest when the trooper forced Rodriguez to drive to the state patrol office in Eagle. The two discrepancies regarding the registration and the absence of a Nader Label on the doorjamb of the van, when combined with the computer verification that Rodriguez owned the vehicle and that it had not been reported stolen, did not provide the trooper with probable cause to believe that the van was stolen. Hence, Rodriguez's arrest violated his right to be free of unreasonable searches and seizures. His arrest was illegal. IV. Next we address whether the heroin discovered in the van should have been suppressed as the fruit of this illegal arrest as the court of appeals held, or whether, as argued by the People, Rodriguez's consent to the search sufficiently attenuated the taint of this illegal arrest. We affirm the analysis of the court of appeals. Evidence obtained as a direct result of an illegal search or seizure is inadmissible. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963) (articulation of "fruit of the poisonous tree doctrine"). To determine whether evidence was obtained as a direct result of police illegality, the relevant inquiry is whether the evidence was "come at by exploitation of that illegality or instead by means *1364 sufficiently distinguishable to be purged of the primary taint." Id. at 488, 83 S.Ct. at 417. If the connection between the evidence and the illegality is "so attenuated as to dissipate the taint, the evidence will not be suppressed." Id. at 487, 83 S.Ct. at 417 (a defendant's illegal arrest did not taint statement when the defendant voluntarily came to the police station several days after the arraignment); cf. People v. Lowe, 200 Colo. 470, 476, 616 P.2d 118, 123 (1980) (prosecution failed to prove that tape-recorded statement taken within thirty-five minutes of illegally obtained statement was free of the taint of the initial illegal questioning). When illegal police action precedes a defendant's consent to search, the defendant's later consent may dissipate the taint of the police illegality. On the other hand, the police illegality may fatally taint the consent. See Royer, 460 U.S. at 507-08, 103 S.Ct. at 1329-30 (later consent tainted by illegal seizure of Royer undertaken as part of the officer's attempt to gain his consent to search Royer's luggage). In deciding whether a defendant's consent was "sufficiently an act of free will to purge the primary taint of the unlawful invasion," Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416-17, no single factor is dispositive. See Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62. A reviewing court must consider the "temporal proximity of the arrest and the [consent], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct." Id. (citations omitted); see People v. Breidenbach, 875 P.2d 879, 890 (Colo.1994) (applying the Brown test and holding that consent given after an interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was tainted by this illegality); see generally 3 LaFave, supra § 8.2(d), at 659-62 (3d ed.1996). We hold that evidence obtained by a purported consent that follows improper conduct by police must meet a two-fold test: (1) was the consent obtained through exploitation of the prior illegality; and (2) was the consent voluntary? Evidence obtained by a purported consent is admissible "only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality." United States v. Melendez-Garcia, 28 F.3d 1046, 1055 (10th Cir.1994) (emphasis added) (citing 3 LaFave, supra § 8.2(d)); see People v. Traubert, 199 Colo. 322, 608 P.2d 342, 346-47 (1980); Arcila v. State, 834 S.W.2d 357, 358 (Tex.Crim.App. 1992); see also Brown, 422 U.S. at 604, 95 S.Ct. at 2262 (a confession must be both voluntary and attenuated from prior police illegality). Even if a defendant's consent is voluntary, then the evidence will not be admissible unless the consent represents "an act of free will [sufficient] to purge the primary taint" of police illegality. Wong Sun, 371 U.S. at 486, 83 S.Ct. at 416. Conversely, the fact that the consent and the illegality are attenuated does not preclude the possibility that the evidence will be inadmissible on the grounds that the consent was not voluntary. The prosecution bears the burden of proving both attenuation and voluntariness when seeking admission of evidence discovered during a consent search. See Brown, 422 U.S. at 604, 95 S.Ct. at 2262; Traubert, 199 Colo. at 329, 608 P.2d at 347. Here, the proximity of the arrest and the consent was immediate. With the same breath the trooper told Rodriguez he was free to go and requested consent to search: You're free to go now. Would it be all right if we searched your van? No intervening circumstances occurred between the illegal arrest and the consent. Cf. People v. Padgett, 932 P.2d 810, 816-17 (Colo.1997). Focusing on police misconduct, we are guided by the statements of the United States Supreme Court concerning "the purpose and flagrancy of official misconduct." The illegality here, moreover, had a quality of purposefulness. The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, *1365 in their testimony, that the purpose of their action was "for investigation" or for "questioning." The arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown's arrest was affected gives the appearance of having been calculated to cause surprise, fright, and confusion. Brown, 422 U.S. at 605, 95 S.Ct. at 2262. Rodriguez's "consent" was obtained in a manner calculated to cause surprise, fright, and confusion. While Rodriguez was still in custody, the troopers, aware that Rodriguez spoke little English, intentionally separated Rodriguez from his interpreter, Munoz, by taking him to the back of the van, where three troopers, armed and uniformed, surrounded him. The troopers told Rodriguez that he was free to go but at the same time asked if he "would mind" if they searched his van. Other facts call into question the purpose of this prolonged detention: the troopers requested a drug detection dog, perhaps as early as the roadside detention, but clearly well before the request for the "consent to search" was given; one trooper characterized the detention of Rodriguez, his family, his van and Munoz as an "interdiction stop"; the trooper further stated that Rodriguez and Munoz were "applicants for law enforcement" and "they're gonna receive law enforcement," commenting that "one's from Puerto Rico, the other one's from Mexico." The district court aptly observed: "You sure have a question as to whether this vehicle number is really what the officers are worrying about." Rodriguez, his family and Munoz were detained for ninety minutes and forced to drive to Eagle so that the troopers could ascertain whether any drugs would turn up. The design and execution of this arrest was investigatory, resembling police conduct condemned by the Supreme Court in Florida v. Royer, where the seizure of Royer was undertaken as part of the officer's attempt to gain his consent to a search of his luggage. We hold that Rodriguez's consent was not sufficiently attenuated from his illegal arrest, but instead was tainted by the police illegality and therefore is ineffective. Because of our holding, we do not reach the question of whether Rodriguez's consent was voluntary. V. We hold that when an officer possesses reasonable suspicion that a traffic offense has been committed and the officer has decided not to give the driver a ticket for the traffic offense, the officer may request identifying information from the driver, such as a driver's license, vehicle registration and proof of insurance. We hold this request for information is constitutionally permissible because the officer's conduct is to be evaluated on the basis of an objective standard. The officer's subjective decision not to give a ticket does not strip the officer of legal justification to make further inquiries. The circumstances of this case, that is, minor discrepancies in the van registration and the lack of the Nader safety label on the doorjamb of the van, furnished reasonable suspicion for the trooper to investigate further whether the van was stolen. However, the ninety-minute detention of Rodriguez and the ten-mile forced drive in this case exceeded the permissible parameters of an investigatory stop. The temporary detention escalated into an arrest unsupported by probable cause to believe that the van was stolen, in violation of the Fourth Amendment to the United States Constitution and Article II, Section 8 of the Colorado Constitution. Rodriguez's arrest was illegal. His consent to search was not sufficiently attenuated from this illegal arrest which immediately preceded his consent. Hence, we conclude that the heroin discovered in the search of Rodriguez's van must be suppressed. We affirm and remand to the court of appeals to return this case to the district court for further proceedings consistent with this opinion. VOLLACK, C.J., concurs in part and dissents in part, and MULLARKEY, J., joins in the concurrence and dissent. Chief Justice VOLLACK concurring in part and dissenting in part: The majority holds in part II of its opinion that when an officer possesses reasonable *1366 suspicion that a traffic offense has been committed and the officer has decided not to give the driver a ticket for the traffic offense, the officer may nevertheless request identifying information from the driver. I concur with this part of the majority's opinion. In part III of its opinion, the majority holds that in the current case: (a) the trooper possessed a reasonable suspicion that the van which Rodriguez drove was stolen; and (b) the trooper possessed a reasonable purpose in temporarily detaining Rodriguez to compare the VIN on the van's registration card and the dashboard with a hidden VIN located on the van. I concur with this part of the majority's opinion. However, the majority further holds that the scope of the investigatory stop in this case was not reasonably related to its purpose. I dissent to this part of the majority's opinion because I believe that under the circumstances of this case, the scope of the investigatory stop was reasonably related to its purpose of establishing whether the van was stolen. The majority further holds in part IV of its opinion that Rodriguez' consent to search his van did not sufficiently attenuate the search from the trooper's illegal investigatory stop; the majority thus affirms the suppression of the evidence. I dissent to this part of the majority's opinion. In my view, Rodriguez' consent to search his van sufficiently attenuated the search from any prior illegality so as to dissipate the taint of such illegality. Consequently, I believe the court of appeals erroneously ruled that the evidence obtained as a result of the search should have been suppressed. Accordingly, I concur in part and dissent in part. I. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that law enforcement personnel may, in compliance with the Fourth Amendment, conduct brief investigatory stops based on reasonable suspicion. Id. at 30-31, 88 S.Ct. at 1884-85. To justify an investigatory stop, three conditions must exist: (1) the officer must have a reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur; (2) the purpose of the detention must be reasonable; and (3) the scope and character of the detention must be reasonable when considered in light of its purpose. See People v. Sutherland, 886 P.2d 681, 686 (Colo.1994). This court has held that conditions which justify subjecting a person to an investigatory stop must be judged against an objective standard that takes into consideration the facts and circumstances known to the officer at the time of the intrusion and evaluates the purpose, scope, and character of the intrusion in light of those facts. See People v. Savage, 698 P.2d 1330, 1334-35 (Colo.1985). Because a limited seizure of the person is authorized on a standard less than that of probable cause, it must be brief in duration, limited in scope, and narrow in purpose. See People v. Tottenhoff, 691 P.2d 340, 343 (Colo. 1984). Despite Colorado's established standard for determining whether the scope of an investigatory stop is reasonably related to its purpose, the majority sets forth a new test for making such a determination. Specifically, the majority holds that four factors must be considered in determining whether the parameters of an investigatory stop have been exceeded: (1) the length of the detention; (2) whether the officer diligently pursued the investigation during the detention; (3) whether the suspect was required to move from one location to another; and (4) whether there were alternative, less intrusive means available and whether the police acted unreasonably in failing to recognize or pursue such means. See maj. op. at ___-___. In my view, this court should not adopt this test if it becomes a litmus-paper test for determining whether the scope of an investigatory stop is proper. As the United States Supreme Court has stated, there is no "litmus-paper test for ... determining when a seizure exceeds the bounds of an investigative *1367 stop." Florida v. Royer, 460 U.S. 491, 506, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). Although the majority cites several Supreme Court cases in support of its four factors for determining the proper scope of an investigatory stop, these cases do not adopt a similar four-factor test and their holdings are specific to their facts. A. The majority cites United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), for its holding that the detention in the current case was prolonged and thus exceeded the proper scope of an investigatory stop. In Place, law enforcement officers stopped the defendant at an airport and obtained his identification and airplane ticket receipt. After the defendant refused to consent to a search of his luggage, the officers seized the defendant's luggage for approximately ninety minutes to conduct a "canine sniff" by a narcotics detection dog. The Supreme Court stated that "although we decline to adopt any outside time limitation for a permissible [investigatory] stop, we ... cannot [approve the length of the detention] on the facts presented by this case." Id. at 709-710, 103 S.Ct. at 2646 (emphasis added). Thus, the holding in Place is fact-specific and does not set forth a time limitation for a proper investigatory stop. The current case is distinguishable from Place in several ways. First, although the entire investigatory stop here lasted for approximately eighty-five minutes,[1] the initial forty-two minutes of this detention involved obtaining Rodriguez' driver's license, vehicle registration, and VIN. The trooper then discovered a discrepancy in the VIN and was unable to determine whether the van was stolen. As the majority acknowledges, the trooper's actions during these initial forty-two minutes were reasonably related to the purpose of the investigatory stop. As to the latter forty-three minutes of the investigatory stop, the trooper's actions during that time were also reasonable. Specifically, the trooper could not determine whether the van was stolen because he did not know the location of the hidden VIN. The trooper consequently determined that the best means of determining whether the van was stolen was by contacting a state patrol auto theft specialist who could tell him where the hidden VIN could be found. The trooper also decided that the state patrol headquarters would be a better location to conduct any further investigation and thus requested that Rodriguez follow him to the headquarters. The latter forty-three minutes of the detention was reasonably related to the purpose of the investigatory stop because it involved a reasonable means for determining whether the van was stolen. As such, I believe that the length of the investigatory stop in this case was reasonable. B. Additionally, the majority cites Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110, for its holding that the trooper did not diligently pursue the investigation in the current case. In Place, the defendant had aroused the suspicion of law enforcement officers at Miami International Airport. Because the Miami officers did not have time to detain the defendant before his flight departed to New York, they contacted officers in New York to relay their suspicions about the defendant. The officers in New York subsequently detained the defendant at New York's La Guardia Airport. The Supreme Court held that the New York officers in that case did not diligently pursue their investigation of the defendant because the officers "knew the time of [the defendant's] scheduled arrival at La Guardia [Airport], had ample time to arrange for their additional investigation at that location, and thereby could have minimized the intrusion on [the defendant's] Fourth Amendment interests." Id. at 709, 103 S.Ct. at 2645. Thus, the Supreme Court's holding in Place regarding the officers' *1368 lack of diligence was specific to the facts of that case. In the current case, the majority holds that "[t]he return to Eagle for further investigation is not consistent with a diligent investigation." Maj. op. at 1363. To the contrary, I believe that the return to Eagle was part of a diligent investigation because it allowed the trooper to efficiently contact a state patrol auto theft specialist who could tell him where the hidden VIN could be found. This made it possible for the trooper to efficiently determine whether Rodriguez' van was stolen and thus constituted a diligent investigation. C. Moreover, the majority cites Royer, 460 U.S. 491, 103 S.Ct. 1319, for its holding that in the absence of safety concerns, moving a suspect from one location to another during an investigatory stop exceeds the reasonable scope of the stop. However, in Royer, the Supreme Court simply held that "the record [did] not reflect any facts which would support a finding that the legitimate law enforcement purposes which justified the detention in the first instance were furthered by removing" the defendant to a different location. Id. at 505, 103 S.Ct. at 1328. Thus, the Royer holding is specific to the facts of that case and does not provide a definitive rule on the effect of moving a suspect during an investigatory stop. In the current case, the majority, holds that the trooper exceeded the proper scope of an investigatory stop by moving Rodriguez from the side of the highway to the state patrol headquarters in Eagle. However, I believe that such a move was properly within the scope of the investigatory stop in light of the trooper's decision that the state patrol headquarters would be a better location to conduct further investigations, such as contacting a state patrol auto theft specialist who could tell the trooper where the hidden VIN could be found. Furthermore, the majority's rejection of moving a suspect during an investigatory stop conflicts with this court's holding in People v. Stevens, 183 Colo. 399, 407, 517 P.2d 1336, 1340 (1973). In Stevens, this court held that moving a suspect from one location to another during an investigatory stop was proper, regardless of safety concerns. See also Place, 462 U.S. at 705-06, 103 S.Ct. at 2643-44 (holding that during investigatory stop, police may transport seized property to another location). D. Finally, the majority cites Sharpe for its holding that in the current case, there were alternative, less intrusive means available to the trooper which he unreasonably failed to recognize and pursue. However, in Sharpe, the United States Supreme Court expressly warned that reviewing courts should not engage in creative post hoc evaluations of police conduct, but should simply determine whether the police acted reasonably in a given case. See Sharpe, 470 U.S. at 686-87, 105 S.Ct. at 1575-76 (1985). Here, although the trooper could have conducted the remainder of the investigatory stop at the Wolcott exit instead of at the state patrol headquarters in Eagle, the Supreme Court's admonition in Sharpe precludes this court from imposing a post hoc requirement that the trooper pursue such an alternative. Rather, the inquiry is whether the trooper acted reasonably in conducting the remainder of the investigatory stop at the state patrol headquarters. As discussed above, I believe that the trooper acted reasonably in his investigation by moving the van to the headquarters. In summary, the majority holds that the trooper possessed a reasonable suspicion that the van was stolen and a reasonable purpose in temporarily detaining Rodriguez. This holding is based on the fact that Rodriguez' vehicle registration was handwritten and contained two discrepancies, along with the fact that a Nader Label was not found on the van's door jamb. Nevertheless, the majority determines that the scope of the investigatory stop was not reasonably related to its purpose. I disagree because I believe that under the circumstances of this case, the *1369 scope of the investigatory stop was reasonably related to its purpose of establishing whether the van was stolen. II. Additionally, I disagree with the majority's conclusion that Rodriguez' consent to search his van did not sufficiently attenuate the prior investigatory stop from the search. Although I maintain that the investigatory stop in this case was proper, I believe that even if the stop was improper, Rodriguez' consent to search his van sufficiently attenuated the investigatory stop from the search. If evidence is obtained as a result of a consent to search, such evidence is admissible if the consent is determined to be (a) not an exploitation of the prior illegality; and (b) voluntary. See People v. Traubert, 199 Colo. 322, 329, 608 P.2d 342, 347 (1980). The first prong has been recognized as the attenuation doctrine, which is an exception to the exclusionary rule and justifies admission of evidence even though the evidence is derived from information obtained in violation of the Fourth Amendment. See People v. Burola, 848 P.2d 958, 961 (Colo.1993). Under the attenuation doctrine: if the prosecution can show that any connection between official illegality and the prosecution's evidence has "become so attenuated as to dissipate the taint," the evidence will be admissible. People v. Jones, 828 P.2d 797, 800 (Colo.1992) (quoting Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963)). Whether the taint of the constitutional violation has dissipated is determined by examining the intervening events between the violation and the evidence sought to be introduced. See People v. T.C., 898 P.2d 20, 27 (Colo.1995). If the intervening events have dispelled the causal link so that the offered evidence is significantly free from contamination, then the taint of the constitutional violation has been removed. See id. As to the second prong for admitting evidence obtained as a result of a consent to search, the consent is voluntary if it is the product of free choice and not the result of duress, coercion, threats, or promises that are calculated to flaw the free and unconstrained nature of the decision. See Savage, 698 P.2d at 1334. Whether consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. See People v. Carlson, 677 P.2d 310, 318 (Colo.1984). Where the record presents conflicting evidence, the trial court's factual findings are entitled to deference unless the findings are so erroneous as to find no support in the record. See Salazar v. People, 870 P.2d 1215, 1221 (Colo.1994). In the current case, the trooper indicated to Rodriguez that the investigatory stop was completed by returning Rodriguez' driver's license and vehicle registration and telling him that he was free to leave. The trooper then asked Rodriguez if he could search Rodriguez' van, and Rodriguez consented. When Rodriguez gave his consent to search the van after being told that he was free to leave, he created an intervening event which sufficiently dispelled the link between the investigatory stop and the search. Under these facts, the evidence obtained as a result of the search was significantly free from contamination and the taint of the investigatory stop had been removed. Moreover, the totality of the circumstances indicate that Rodriguez' consent was given voluntarily. At the suppression hearing, the trial court heard testimony from both Rodriguez and the trooper as to Rodriguez' ability to speak and understand English. Rodriguez testified that due to his limited ability to speak and understand English, he did not understand the trooper's statement that Rodriguez was free to leave or the trooper's request to search his van. In contrast, the trooper testified that Rodriguez appeared to understand the trooper's request to search his van. Additionally, a videotape of the trooper's request to search Rodriguez' van and Rodriguez' response was introduced into evidence. Based on this evidence, the trial court found that Rodriguez understood the trooper's request to search his van. Because the trial court's factual finding is supported *1370 by the record, this court should defer to the trial court's finding on the issue of Rodriguez' ability to understand the trooper's request. Given that Rodriguez understood the trooper's request to search his van, the facts indicate that Rodriguez voluntarily gave his consent for the search. Here, the trooper asked Rodriguez if he could search Rodriguez' van, and Rodriguez responded, "Sure." The trooper then reiterated his request by asking, "Is it okay?" and Rodriguez again responded, "It's okay." Rodriguez then obtained his keys to the van and opened the back door of the van without the trooper asking him to do so. There is no evidence that the trooper used duress, threats, or promises to obtain Rodriguez' consent to search his van. The facts of this case thus indicate that Rodriguez' consent was the product of free choice and the record supports the trial court's finding that Rodriguez' consent was voluntary. Accordingly, I believe that Rodriguez' consent to search his van was voluntary and sufficiently attenuated the stop from the search so as to remove the taint of any prior illegality. The evidence obtained as a result of Rodriguez' consent to search therefore should be admitted. For the foregoing reasons, I concur in part and dissent in part. I am authorized to say that Justice MULLARKEY joins in this concurrence and dissent. NOTES [1] See § 18-18-405, 8B C.R.S. (1996 Supp.). [2] Section 42-4-1007(1)(a), 17 C.R.S. (1996 Supp.), provides: A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. [3] Trooper: And what country are you from? Rodriguez: Uh, Puerto Rico. Trooper: Puerto Rico. Rodriguez: Yes. Trooper: Okay. Are you both ... [to Munoz] is he a resident also? Munoz: He's a citizen. Trooper: He's a citizen. Munoz: An American, yeah. Trooper: That's right, Puerto Rico is an American possession, isn't it? Munoz: Yes. Trooper: I'll be darned. [4] The issues on certiorari were framed as follows: 1. Whether a Colorado State Patrol Officer, who made a valid stop of a motorist for failure to stay in a single lane of traffic, had a valid basis to request the defendant's driver's license and registration after the officer noted that the defendant was not intoxicated. 2. Whether a valid detention of the suspect was conducted in order to determine if he was driving a stolen vehicle. 3. Whether, at the conclusion of that detention, the suspect gave a voluntary consent to authorities for a search of his vehicle. [5] Section 42-2-113(1), 17 C.R.S. (1993), states: No person who has been issued a driver's ... license ... who operates a motor vehicle in this state, and who has such license ... in such person's immediate possession shall refuse to remove such license ... from any billfold, purse, cover, or other container and to hand the same to any peace officer who has requested such person to do so if such peace officer reasonably suspects that such person is committing, has committed, or is about to commit a violation of article 2, 3, 4, 5, 6, 7, or 8 of this title. Cf. § 42-2-115(1), 17 C.R.S. (1996 Supp.) (reenactment of above statute in substantially similar language). [6] We note that a reasonable suspicion may support an investigatory stop and even a protective weapons search of a vehicle, but probable cause is required for actual impoundment of that vehicle. We limit our holding in People v. Litchfield accordingly. [7] We emphasize, the fact that a vehicle does not display a Nader Label is not determinative of the issue of reasonable suspicion because these labels are not required on all vehicles. While the alteration or removal of a Nader Label may be an indication that the vehicle is stolen, the absence of a Nader Label is one factor among others to consider. [8] We recognize that the trooper in this case opened the door to the van and examined the doorjamb without Rodriguez's permission and that the two troopers also opened and looked under the hood of the van. Because we resolve this case on other grounds, we do not reach the question of whether these intrusions violated the Fourth Amendment. See, e.g., New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (holding that an officer did not violate the Fourth Amendment by moving papers on the dashboard covering the VIN); see generally 1 Wayne R. LaFave, Search and Seizure § 2.5(d), at 561 (3d ed.1996). [1] Rodriguez was stopped at approximately 7:25 a.m. and was told that he was free to leave at approximately 8:50 a.m.

Williams-N v. Dearen (C/R) NO. 10-91-009-CV IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * *           NOKOMIS WILLIAMS,                                                                                             Relator           v.           SHERRY DEAREN, FORMER OFFICIAL           COURT REPORTER, 13TH DISTRICT           COURT, NAVARRO COUNTY, TEXAS,                                                                                             Respondent * * * * * * * * * * * * * Original Proceeding * * * * * * * * * * * * * MEMORANDUM OPINION * * * * * * *           We granted leave to file the Petition for Writ of Mandamus to compel the court reporter to prepare the statement of facts in a criminal case pending in this court and set a hearing for February 7, 1991. Prior to the hearing, the court reporter assured counsel for Relator that the statement of facts would be prepared and filed, and the hearing was postponed at counsel's request.           The statement of facts was filed on April 1, 1991. We dismiss this original proceeding as moot.                                                                                  PER CURIAM Before Chief Justice Thomas,           Justice Cummings and           Justice Vance Dismissed Opinion delivered and filed April 25, 1991 Do not publish nt-size:14.0pt;font-family:"CG Times"'>IN THE TENTH COURT OF APPEALS   No. 10-04-00333-CR No. 10-04-00334-CR No. 10-03-00335-CR   Carlos Lopez,   Appellant  v.   The State of Texas,                                                                       Appellee       From the 82nd District Court Robertson County, Texas Trial Court # 94-06-15,591-CR Trial Court # 94-06-15,592-CR Trial Court # 94-06-15,593-CR   MEMORANDUM  Opinion             Carlos Lopez filed notices withdrawing his appeals from his three aggravated assault convictions.  See Tex. R. App. P. 42.2(a).           These appeals are dismissed.                                                                      TOM GRAY                                                                    Chief Justice   Before Chief Justice Gray,           Justice Vance, and           Justice Reyna Appeals dismissed Opinion delivered and filed March 16, 2005 Do not publish [CRPM]

993 F.2d 885 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Sergio LOPEZ, Defendant-Appellant. No. 92-10096. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 8, 1992.Decided May 19, 1993. Before: D.W. NELSON, REINHARDT and KOZINSKI, Circuit Judges. 1 MEMORANDUM* 2 Sergio Lopez appeals his jury conviction and sentence for conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846, distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1), and interstate racketeering in violation of 18 U.S.C. § 1952(a)(3). We affirm both Lopez's conviction and his sentence. FACTUAL AND PROCEDURAL BACKGROUND 3 Lopez and his co-defendant Gilbert Rodriguez Navarro were indicted on one count of conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, two counts of distribution and one count of interstate racketeering. Both men pled not guilty and received a jury trial. 4 Theodoros Stellakis, the informant in this case and an admitted drug dealer, testified that he was engaged in a conspiracy with Lopez to distribute cocaine from the fall of 1989 until the time of Stellakis' arrest in September 1990. Stellakis offered detailed testimony regarding two of the transactions that formed the basis of the conspiracy charge against Lopez. 5 Stellakis met Sergio Lopez in November of 1989 through their mutual acquaintance Alba Barrera. Shortly after his introduction to Lopez, Stellakis told Barrera that he had a friend who "could use some cocaine." Stellakis' "friend" Strachil Christov then came to Anaheim, where he consummated a transaction for two kilograms of cocaine with Lopez, Barrera and Stellakis. Stellakis acted as Lopez's middleman, turning over the $32,000 paid by Christov to Lopez and keeping $1,000 each for himself and Barrera. 6 Stellakis testified that during the next year many similar transactions occurred between him, his partner Angelo Adam, Lopez, and Barrera. Stellakis was put out of business, however, in September 1990, when he was arrested by FBI narcotic agents for conspiracy to distribute cocaine. Subsequent to his arrest, Stellakis entered into a plea agreement whereby he agreed to disclose the name of his supplier and to act in an undercover role in exchange for a recommendation from the government that his sentence be reduced. Pursuant to this agreement, Stellakis contacted Lopez to negotiate a purchase of two kilograms of cocaine. 7 In mid-January of 1991, Lopez recruited Navarro to accompany him to Las Vegas where the sale was to take place. The two men came to Las Vegas in a truck registered to Hugo Enriques. After instructing Navarro to wait in a parking lot, Lopez went to the Tropicana Hotel to pick up a package of cocaine from a man identified as "Juan." 8 On January 19, 1991, undercover FBI agents and Stellakis met with Lopez and Navarro in Las Vegas to complete the purchase. Lopez directed the exchange. After the transaction was completed, the agents arrested both Lopez and Navarro. 9 The jury returned guilty verdicts on all counts against Lopez and he was sentenced to a term of one hundred and eighty-eight months. This timely appeal of both the conviction and the sentence followed. ANALYSIS I. The Conviction 10 Lopez contends that the district court erred in admitting evidence of his inaccurate tax return since the government did not provide Lopez with reasonable notice in advance of trial of its intention to introduce such evidence. We need not consider Lopez's first objection since it was not raised before the district court. United States v. Winslow, 962 F.2d 845, 849 (9th Cir.1992). Lopez also contends that the government failed to demonstrate that the evidence was being introduced for a permissible reason and that the district court failed to give a limiting instruction to the jury. A. Relevancy of the Evidence 11 Questions of the admissibility of evidence are reviewed for an abuse of discretion. United States v. Wood, 943 F.2d 1048, 1055 n. 9 (9th Cir.1991). While evidence of a person's prior crimes, wrongs, or similar bad acts may not be introduced to show that the defendant has a bad character, evidence of prior bad acts may be admitted to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b); United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985). Rule 404(b) is considered to be a rule of inclusion. United States v. Ayers, 924 F.2d 1468, 1472 (9th Cir.1991). Evidence of other crimes or acts is admissible under Rule 404(b) " 'except where it tends to prove only criminal disposition.' " United States v. Sangrey, 586 F.2d 1312, 1314 (9th Cir.1978) (citations omitted). 12 We employ a four-part test to determine whether evidence is admissible under Rule 404(b): (1) sufficient evidence must exist for the jury to find that the defendant committed the other acts; (2) the other acts must be introduced to prove a material issue in the case; (3) the other acts must not be too remote in time; and (4) if admitted to prove intent, the other acts must be similar to the offense charged. Ayers, 924 F.2d at 1473. Lopez argues that the second and fourth criteria were not met. 13 Since the tax return was not introduced to establish intent, the fourth Ayers criterion is not relevant. Contrary to Lopez's assertion, the government did make a proffer as to the relevance of the evidence. The government introduced Lopez's bank record, which reflected a much higher income than his 1990 tax return. The omission of income on Lopez's tax return was introduced to establish "a guilty knowledge" of the drug conspiracy and to suggest that the defendant derived his income from an illegal source. "Evidence of unexplained wealth is relevant if it creates a reasonable inference that the unexplained wealth came from the narcotics conspiracy." United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987). Accordingly, the court did not abuse its discretion in admitting the evidence of Lopez's tax return. B. Jury Instruction 14 Lopez did not request a limiting instruction regarding the tax return, but argues that the court is obliged to intervene sua sponte when a trial attorney fails to make such a request. We review for plain error. United States v. Boone, 951 F.2d 1526, 1541 (9th Cir.1991). While it may have been prudent for the court to issue such an instruction, there was ample evidence to support the guilty verdict without considering the significance of Lopez's failure to report all of his income to the IRS. Consequently, the lack of a limiting instruction to the jury did not cause Lopez serious prejudice. II. The Sentence 15 The district court found that the conspiracy count involved at least twelve kilograms of cocaine which, under U.S.S.G. § 2D1.1(c)(6), resulted in an offense level of 32 points. Because the district court found that Lopez was an organizer or leader of a criminal activity that involved five or more participants, the court adjusted Lopez's base offense level upwards by four points pursuant to U.S.S.G. § 3B1.1(a). The court added another two points to Lopez's conspiracy conviction for obstruction of justice pursuant to U.S.S.G. § 3C1.1 resulting in a total offense level of 38 points for the conspiracy count. Next, the court grouped all of the counts against Lopez together. Finally, the court gave Lopez credit for acceptance of responsibility and thus the final offense level was 36 points. 16 When adjusting a sentence upward, a district court must find by a preponderance of the evidence that the facts support an upward adjustment. United States v. Restrepo, 946 F.2d 654, 661 (9th Cir.1991) (en banc). The district court's factual determinations are reviewed for clear error, but its legal interpretations of the Guidelines are reviewed de novo. United States v. Wilson, 900 F.2d 1350, 1355 (9th Cir.1990). A. The Base Level Offense 17 Lopez argues that the district court erred in attributing the sale of twelve kilograms of cocaine to him. Lopez also contends that the district court erred in grouping the counts against him together. 18 In accord with § 1B1.3(a)(1), in this instance the district court "specifically [found] that ... Stellakis had detailed approximately twelve kilograms of cocaine in his testimony and testified that he had purchased a total of approximately twenty kilograms from the defendant" during the time period covered by the conspiracy count. Accordingly, the district court made a specific finding as to Lopez's connection to the cocaine beyond the five kilograms charged.1 This finding is not clearly erroneous. 19 While it did not affect his offense level, the grouping of Lopez's convictions was also proper. Section 3D1.1 provides that the court must group together closely related counts that result in conviction. Counts are considered closely related if the base "level [for each count] is determined largely on the basis of the ... quantity of a substance involved," as is the case here. U.S.S.G. § 3D1.2(d). 20 Lopez misguidedly argues that the counts against him cannot be grouped unless the court finds that together the counts form part of a "common scheme." Lopez's misreading of the law results from his misapplication of a separate section of the Guidelines, § 1B1.3(2), which neither the probation department nor the district court relied upon.2 We thus affirm the district court's finding that Lopez's offense base level was 32. B. The Upward Adjustment 21 Section 3B1.1(a) instructs the court to increase a defendant's offense level by four points if "the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive...." U.S.S.G. § 3B1.1(a). For purposes of § 3B1.1, "[a] 'participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1 (n. 1). 22 Lopez was convicted of conspiring to possess and distribute in excess of five kilograms of cocaine between the fall of 1989 and January 19, 1991. To meet the requirements of § 3B1.1(a)'s "headcount," the district court needed to find that at least five people were either involved with Lopez in conspiring to distribute cocaine during this period or engaged in criminal activity with Lopez that facilitated the conspiracy. The district court may engage in inferential calculation when determining the number of participants in an offense. United States v. Barbontin, 907 F.2d 1494, 1498 (5th Cir.1990). 23 Lopez contends that when stating its reasons for the upward adjustment, the court improperly counted as participants individuals who were not involved with Lopez in the offense of conviction. However, even if one excludes the individuals named by the district court, the record reveals that a minimum of five people worked with or for Lopez to possess and distribute cocaine from the fall of 1989 until January 19, 1991. First, Lopez may be considered a participant in his own conspiracy. United States v. Atkinson, 966 F.2d 1270, 1276 n. 8 (9th Cir.1992). 24 The second participant is Stellakis. Although he acted in an undercover capacity on January 19, 1991, and hence cannot be counted as a participant in that transaction, United States v. Jewel, 947 F.2d 224, 236 n. 18 (7th Cir.1991), he is criminally responsible for conspiring with Lopez to distribute cocaine during the rest of the relevant time period. Stellakis testified that during this time period he engaged in many drug deals with Lopez. These two men worked closely together to supply drugs to other sub-distributors. Often, Stellakis acted as Lopez's intermediary: Lopez "fronted" Stellakis the cocaine and Stellakis turned the proceeds from the sales over to Lopez, taking only a nominal cut for himself. Thus, Stellakis is properly counted as a participant. United States v. Dyer, 910 F.2d 530 (8th Cir.), cert. denied, 111 S.Ct. 366 (1990). 25 Adam is the third participant. Adam pled guilty to conspiring to distribute cocaine. The court heard testimony that Lopez possessed Adam's business card, Adam's beeper number, and cellular phone number. In addition, Stellakis testified that Adam was his partner and worked with him to distribute the cocaine supplied by Lopez. Taking these facts together, the court could properly infer that Adam was involved in a general conspiracy with Lopez and Stellakis to distribute drugs to other sub-distributors. 26 Fourth, the presentence report indicated that Alba Barrera was an intimate associate of Lopez and acted as a recruiter, lookout, and messenger for the drug operation. She also was involved in the drug transaction of December 1989, and thus counts as a participant. 27 Fifth, Navarro is properly considered a participant. Lopez engaged Navarro to provide counter-surveillance during the January 19, 1990 transaction. Navarro also was present during a drug transaction between undercover agents and Stellakis in September 1990. In addition, Lopez lived with Navarro for a time, worked with him, received mail at Navarro's home, and considered Navarro to be a member of his "family." In light of this close personal relationship, the district court could infer that Navarro was a participant in the overall conspiracy. Thus, we affirm the district court's finding that at least five individuals participated with Lopez in the conspiracy. 28 The second question is whether the district court erred in finding that Lopez was a leader in this drug operation. The guidelines instruct the court to consider the "exercise of decision making authority, the nature of the participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others" when determining whether a defendant has a leadership role in an offense. U.S.S.G. § 3B1.1, comment (n. 3). We have interpreted Note 3 to require that "some degree of control or organizational authority over others" be found before a defendant may be considered a leader. United States v. Mares-Molino, 913 F.2d 770, 773 (9th Cir.1990) (emphasis supplied). We emphasize that the question of whether an individual is a participant in the criminal conduct is a separate inquiry from the question of whether he was led or organized by the defendant. There must be some evidence that an individual is working for, directed by, or otherwise subordinate to the defendant. 29 It is not necessary, however, for the court to find that a defendant led each of the minimum five participants. "The section simply states that an adjustment occurs if a defendant was an 'organizer or leader of a criminal activity that involved five or more participants....' " United States v. Smith, 924 F.2d 889, 896 (9th Cir.1991) (emphasis in original). Nor is it necessary for a court to find that a defendant had direct control over those he led. A finding of indirect control suffices to meet the requirements. Id. at 895-96. Finally, a district court's failure to identify each participant under a defendant's control does not provide a basis for vacating a four level upward departure. 30 Lopez was the chief supplier for a large group of cocaine distributors who in turn supplied cocaine to other sub-distributors. See Smith, 924 F.2d at 895-96. There is also evidence that rather than just supplying various members of the conspiracy with drugs for distribution, Lopez exercised decision-making authority and organized the group's transactions. First, Lopez provided for counter-surveillance during various drug sales. Second, Lopez negotiated the prices of the cocaine purchased by the undercover agents, and the date and time of the sale. See Avila, 905 F.2d at 299. Third, Lopez was present at many of the transactions that involved the other participants, as well as those that involved Christov and Ziolkowski. At these sales, Lopez controlled possession of the cocaine and directed the actions of others. See United States v. Castro, 972 F.2d 1107 (9th Cir.1992). Fourth, Lopez took a much larger share of the profits than the other participants. Fifth, there was evidence that Lopez both directed recruitment of accomplices and recruited accomplices on his own. For example, Stellakis was introduced to Lopez by Barrera, who was already involved with Lopez in the sale of cocaine. Lopez also recruited Navarro to accompany him to Las Vegas. Sixth, the evidence indicates that at least three of the participants acted at the direction of Lopez. Stellakis testified that Barrera acted as a courier for Lopez. So too, Lopez directed both Navarro's and Stellakis's actions during the January 19, 1991 transaction. Indeed, during the Fall 1989 sale and the January 19, 1991 sale, Stellakis only acted as Lopez's middleman. 31 As other circuits acknowledge, the district court is in the best position to judge the defendant's "relative culpability vis-a-vis other participants in the offense." Williams, 891 F.2d at 926. In this case there is abundant evidence that Lopez both organized and directed this conspiracy. We affirm the district court's finding that Lopez was a leader. 32 AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 1 Section 1B1.3(a)(1) of the Guidelines instructs the court to consider as relevant conduct "all acts or omissions committed or aided and abetted by a defendant, or for which the defendant would be otherwise accountable, that occurred during the omission of the offense of conviction...." 2 Section 1B1.3(2) provides that the base level offense shall be determined "solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme as the offense of conviction." The commentary explains that when a defendant has not been convicted of all the counts brought against him, the underlying conduct that forms the basis of the acquitted counts will be factored into the calculation of the base offense level if that conduct was part of "same course of conduct or common scheme" as the offense for which the defendant was convicted. In this instance, Lopez was convicted of multiple counts, and the base level for each count, largely depended on the quantity of drugs sold. Therefore, §§ 3D1.1(a)(1) and 3D1.2(d) mandated that these counts be grouped together

893 S.W.2d 55 (1994) Charles E. HUMPHREY, Independent Executor of the Estate of Betty Jane Merrifield, Deceased, Appellant, v. CAMELOT RETIREMENT COMMUNITY, a Texas Limited Partnership, Appellee. No. 13-93-057-CV. Court of Appeals of Texas, Corpus Christi. December 29, 1994. *57 Michael R. Garatoni, Foster, Lewis & Langley, Roger D. Kirstein, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, for appellant. Randell W. Friebele, Harlingen, for appellee. Before GILBERTO HINOJOSA, FEDERICO G. HINOJOSA, Jr., and YANEZ, JJ. OPINION GILBERTO HINOJOSA, Justice. This is a suit on an earnest-money contract. Charles E. Humphrey, Jr., Independent Executor of the Estate of Betty Jane Merrifield, sued Camelot Retirement Community, A Texas Limited Partnership, to recover $16,750 earnest money which Merrifield allegedly paid to Camelot for the purchase of a new home. After a bench trial, the court granted a rescission of the contract and awarded Humphrey $13,750. Camelot appeals by 15 points of error. We reform the judgment, and as reformed, we affirm. Camelot Retirement Community rented apartments and sold apartment houses to retirees in Cameron and Hidalgo County, Texas. In 1988 and 1989, Betty Jane Merrifield came to Camelot inquiring about buying a garden home. On March 8, 1989, she and Camelot entered into an Earnest Money Contract in which she had agreed to buy a home from Camelot for $67,000 and to pay it $16,750 earnest money. Camelot began building the home on August 8, 1989 and finished it on December 20, 1989. However, Merrifield died before she and Camelot could close on the home. Article 6.2 of the Contract provided: "In the event of a default by Seller hereunder, Purchaser may, as Purchaser's sole remedy terminate this Contract by written notice delivered to Seller at or prior to the Closing, and receive back the earnest money deposit." By letter dated June 5, 1990, counsel representing Merrifield's estate informed Linda Finch[1] that Camelot had defaulted on the Contract and *58 demanded the return of the $16,750 earnest money. Camelot allegedly failed to timely deliver the title policy to Merrifield. On June 27, 1990, Charles Humphrey filed suit against Camelot, alleging that it had defaulted on the Contract, and, therefore, had wrongly retained Merrifield's earnest money. He requested a rescission of the Contract and the return of the $16,750 earnest money. The trial court did not file findings of fact and conclusions of law in this case. Camelot's points of error challenge the factual and legal sufficiency of the evidence. In considering a "no evidence," "insufficient evidence" or "against the great weight and preponderance of the evidence" point of error, we follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985); Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Allied Fin. Co. v. Garza, 626 S.W.2d 120, 125 (Tex.App.—Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960). By points one and two, Camelot asserts that it had established an oral modification to the Contract as a matter of law or by the great weight and preponderance of the evidence. Article 8.2 of the Contract provided that it could not "be modified, or any of the terms hereof waived, except by an instrument in writing (referring specifically to this Contract) executed by the party against whom enforcement of the modification or waiver is sought." Camelot tried to show that Merrifield had agreed to orally modify the Contract with respect to the time of closing and the time which it was to provide a title commitment to her. John Luther, Camelot's marketing director, testified that the week following the Contract's execution date (March 8, 1989), he had met with Merrifield to discuss modifications to the closing date and the date Camelot would have provided the title policy to her. His testimony showed that he and she had a verbal agreement to extend the closing deadline and to extend the time for providing the title commitment. He extended the deadline for about 150 days or until the house was completed. He indicated that Merrifield had lived up to that agreement and that she did not ask for the return of her earnest money. According to Luther, no one had asked for the return of the earnest money or for rescission of the contract after construction had started, and no one had alleged that Camelot had defaulted on the Contract for not closing or for not providing a title policy within the initial 30-day period. Paul Montaine had taken part in building Merrifield's home. His testimony showed that Merrifield had known that he had started building the home after expiration of the Contract's 30-day period. She had contacted him regarding some of the things involving the home's construction. He said that she had not asked to rescind the Contract, nor had she advised him to stop construction because she was claiming a default of the Contract. She did not ask him for the return of the earnest money. Humphrey's evidence showed that the parties did not extend the closing date in writing. The trier of fact has the duty to weigh the evidence, draw inferences from the facts, and choose between conflicting inferences. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex.1973); Hudson v. Winn, 859 S.W.2d 504, 508 (Tex.App.—Houston [1st Dist.] 1993, writ denied). When acting as the trier of fact, the trial judge may accept or reject any witness's testimony in whole or in part. While an appellate court may not have reached the same findings, it may not substitute its judgment for the trial court's judgment. Hudson, 859 S.W.2d at 508; Roberts Express, Inc. v. Express Transp., Inc., 842 S.W.2d 766, 770 (Tex.App.—Dallas 1992, no writ); Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 394 (Tex.App.—Houston [14th Dist.] 1990, writ denied). By granting a rescission of the Contract, the trial court made an implied finding that Camelot and Merrifield had not agreed to an oral modification. The trial judge, as the fact finder, had the right to reject the evidence relating to the alleged oral modification. *59 The trial judge could have believed that the parties had not modified the Contract either by written instrument or by oral declarations. The evidence supports the trial court's findings. We overrule points one and two. By points three and four, Camelot challenges the legal and factual sufficiency of the evidence to support rescission of the Contract. Rescission is an equitable remedy that operates to set aside a contract that is legally valid but is marred by fraud, mistake, or for some other reason, the court must set it aside to avoid unjust enrichment. Lowrey v. University of Texas Medical Branch, 837 S.W.2d 171, 174 (Tex.App.—El Paso 1992, writ denied); Country Cupboard, Inc. v. Texstar Corp., 570 S.W.2d 70, 73 (Tex.Civ.App.— Dallas 1978, writ ref'd n.r.e.). Rescission works to avoid the contract, return any consideration paid, and to return the parties to their respective positions as if no contract had ever existed. Lowrey, 837 S.W.2d at 174; Carrow v. Bayliner Marine Corp., 781 S.W.2d 691, 696 (Tex.App.—Austin 1989, no writ). A trial court can grant unilateral rescission of a contract if a party shows that a breach had occurred in a material part of the contract. Costley v. State Farm Fire & Casualty Co., 894 S.W.2d 380 (Tex.App.— Amarillo 1994, writ denied); Ennis v. Interstate Distribs., Inc., 598 S.W.2d 903, 906 (Tex.Civ.App.—Dallas 1980, no writ); see also Allen v. Allen, 751 S.W.2d 567, 575 (Tex.App.—Houston [14th Dist.] 1988, writ denied). A partial breach is sufficient to grant rescission if it goes to the essence of the contract. Ennis, 598 S.W.2d at 906; Atkins v. Beasley, 544 S.W.2d 505, 507 (Tex. Civ.App.—Waco 1976, no writ). The decision whether to grant rescission lies within the trial court's sound discretion. Schenck v. Ebby Halliday Real Estate, Inc., 803 S.W.2d 361, 366 (Tex.App.— Fort Worth 1990, no writ); Ebberts v. Carpenter Prod. Co., 256 S.W.2d 601, 627 (Tex. Civ.App.—Beaumont 1953, writ ref'd n.r.e.). An appellate court may reverse a trial court for abuse of discretion only if, after searching the record, it clearly shows that the trial court's decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987). We are required to view the evidence in the light most favorable to the trial court's action, and indulge in every presumption which would favor the trial court's action. Adams v. Reagan, 791 S.W.2d 284, 287 (Tex.App.—Fort Worth 1990, no writ); Parks v. U.S. Home Corp., 652 S.W.2d 479, 485 (Tex.App.—Houston [1st Dist.] 1983, writ dism'd.). In this case, article 3.1 of the Contract required that within 30 days of the date Merrifield and Camelot had entered into the Contract, Camelot "shall cause to be furnished to Purchaser [Merrifield] a standard Commitment for Owner Policy of Title Insurance (the "Title Binder"), issued through the Title Company, describing the Property, listing Purchaser as the prospective named insured and showing as the policy amount the total purchase price for the property." The evidence showed that Camelot did not cause to be furnished to Merrifield, a Title Binder issued through the Title Company within 30 days from the date the parties had entered into the Contract. Due to its failure to comply with article 3.1, Camelot breached the Contract. Camelot's failure to provide Merrifield the Title Binder prevented her designation as beneficiary of the title insurance on the property upon which she had planned to build her new home. This is a breach that goes to the essence of the Contract. We hold that the evidence is sufficient to support rescission. Viewing the evidence in the light most favorable to the trial court's action, we find that the trial court did not abuse its discretion when it granted Humphrey rescission of the Contract. We overrule points three and four. By points seven through twelve, Camelot asserts that it had established its defenses of waiver, promissory estoppel, and ratification as a matter of law or by the great weight and preponderance of the evidence. Camelot argues that Merrifield had never asked to rescind the Contract and that she had intentionally relinquished or acted inconsistent with her right to claim a rescission or *60 a default of the Contract. Camelot argues that this conduct acted as a waiver of her right to rescind or claim a default of the Contract. Its estoppel argument is that Merrifield had orally modified and extended the terms of the Contract and that Camelot had relied upon her conduct by starting to build her home. Camelot argues that this conduct has estopped Merrifield from claiming rescission. Concerning ratification, Camelot points out that Merrifield had agreed to extend the Contract and had honored this extension. She had not sought rescission, claimed that Camelot had defaulted on the Contract, nor asked for the return of her earnest money. Further, she had encouraged the building of her home, made changes to it, and she had shipped her furniture to the home. Due to this conduct, Camelot argues that Merrifield had ratified the alleged modifications to the Contract and cannot seek a rescission. The trial court could have chosen to disbelieve all of the testimony concerning waiver, promissory estoppel, and ratification. See Hudson, 859 S.W.2d at 508; Roberts Express, 842 S.W.2d at 770; Forscan Corp., 789 S.W.2d at 394. We hold that the evidence supports the trial court's findings on waiver, promissory estoppel, and ratification. We overrule points seven through twelve. By point thirteen, Camelot asserts that the trial court improperly rendered judgment favorable to Merrifield because the amount of prejudgment interest is excessive as a matter of law. Camelot asserts that the trial court's prejudgment-interest award is excessive because the court used the wrong interest rate and the wrong date from which to calculate the prejudgment interest. Alternatively, it argues that the trial court improperly awarded Merrifield prejudgment interest because she did not properly plead for its recovery. Article 5069-1.03 provides that: When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable. TEX.REV.CIV.STAT.ANN. art. 5069-1.03 (Vernon 1987). Humphrey's Original Petition included a pleading "that the Estate of Betty Jane Merrifield is entitled to a refund of all earnest money paid to Defendant by the said Betty Jane Merrifield with interest thereon at the legal rate." The Texas Supreme Court stated in Imperial Sugar Co. v. Torrans,[2] that when damages are definitely determinable, interest is recoverable as a matter of right from the date of the injury or loss. Torrans, 604 S.W.2d at 74. In Black Lake Pipe Line Co. v. Union Constr. Co.,[3] the Texas Supreme Court said that a simple prayer for interest provides fair notice and supports an award of prejudgment interest if the plaintiff's right to prejudgment interest does not depend upon the resolution of any fact issues. Black Lake Pipe Line Co., 538 S.W.2d at 96. In the instant case, the evidence showed that the Demand Letter was received on June 8, 1990. Based upon the Demand Letter and the Contract, the principal sum owed is determined by reference to a fixed date; i.e., the date Humphrey demanded the return of the earnest money in the Demand Letter. Once liability was established, no fact issue existed concerning prejudgment interest. We find that the pleading for "all earnest money ... with interest thereon at the legal rate" is sufficient to support an award of prejudgment interest. Republic Nat'l Bank v. Northwest Nat'l Bank, 578 S.W.2d 109, 116 (Tex.1979) (on reh'g) (prejudgment interest recoverable as matter of right when ascertainable sum is determined to have been due and payable at date certain prior to judgment); Black Lake Pipe Line Co., 538 S.W.2d at 96. Was the Amount of Prejudgment Interest Excessive? The judgment stated that it "shall bear interest at the rate of ten percent (10%) *61 from March 8, 1989[[4]] until paid." Article 5069-1.03 provides that when the parties have not agreed upon a specified interest rate, the courts shall apply a 6% interest rate per annum on all accounts and contracts. We reform the trial court's judgment to reflect a 6% prejudgment interest rate. Prejudgment interest will commence July 8, 1990, which is 30 days after Camelot first received notice that Humphrey was demanding the return of the earnest money. This interest rate shall apply until the judgment date, October 20, 1992. See Tex.Rev.Civ. Stat.Ann. art. 5069-1.03 (Vernon 1987). We sustain point thirteen. By point fourteen, Camelot challenges the factual sufficiency of the evidence to support the damages award to Humphrey. Alternatively, it argues that overwhelming evidence exists to support a higher award of damages to itself. The Contract showed that Merrifield had agreed to pay Camelot $67,000 for Unit 6212. After she had died, Camelot resold the property for $72,500. At trial, Camelot's counsel asked John Luther, its marketing director, if he could tell the court approximately what it cost Camelot to resell the property. His testimony showed that it had incurred $7,000 to $10,000 to resell it. The trial court ordered that Humphrey recover from Camelot $13,750. This amount equaled the $16,750 earnest money less a $3,000 offset to Camelot. Based on the judgment, Camelot received a net return of $3,000 from the earnest money. This amount plus the $5,500 it received from the property sale ($72,500-$67,000) equals $8,500. This figure falls within the $7,000 to $10,000 range that Camelot allegedly incurred to resell the property. The $16,750 was established as a matter of law and was uncontroverted. The $3,000 offset reflected the trial court's implied finding of the amount needed to satisfy the expenses of reselling the property. Accordingly, the $13,750 award was well within the range of evidence presented to the trial court. We overrule point fourteen. By point fifteen, Camelot complains of the trial court's failure to file findings of fact and conclusions of law. The trial judge signed the judgment on October 20, 1992. On November 4, 1992, Camelot timely filed its Request for Findings of Fact and Conclusions of Law. Camelot timely filed its Notice of Past Due Findings of Fact and Conclusions of Law on November 30, 1992. However, the trial court did not file Findings of Fact and Conclusions of Law. In Cherne Indus., Inc. v. Magallanes,[5] the Texas Supreme Court stated that the trial court's duty to file findings and conclusions is mandatory. The trial court's failure to respond when the requesting party has properly made all requests is presumed harmful unless the record before the appellate court affirmatively shows that the complaining party has suffered no injury. Cherne, 763 S.W.2d at 772. In Sheldon Pollack Corp. v. Pioneer Concrete Co.,[6] the Dallas Court of Appeals stated that the test for determining whether a complaining party has suffered harm due to the court's failure to file findings is: "[W]hether the circumstances of the particular case would require an appellant to have to guess the reason or reasons that the trial judge has ruled against it.... The issue is whether there are disputed facts to be resolved." Sheldon, 765 S.W.2d at 845. In Fraser v. Goldberg,[7] the Beaumont Court of Appeals stated: "In factually complicated situations in which there are two or more possible grounds for recovery or defense, an undue burden would be placed upon an appellant. Having to try to guess the reason or reasons the trial judge ruled against him should not be required." Fraser, 552 S.W.2d at 594. In the instant case, the trial court, after hearing the evidence, announced in open court that "[t]his is a rescission ruling...." This ruling reveals the ground upon which *62 the trial court based its judgment, and it allows us to review the alleged trial errors. We perceive no harm to Camelot due to the trial court's failure to file the Findings of Fact and Conclusions of Law. We overrule the point of error. Due to our disposition of the above points, we need not address the remaining points of error. See TEX.R.APP.P. 90(a). We REFORM the judgment to show that prejudgment interest shall accrue at 6% from July 8, 1989 to the date of the judgment. We AFFIRM the remainder of the judgment. NOTES [1] Finch had served as Camelot's general partner. [2] 604 S.W.2d 73 (Tex.1980) (per curiam). [3] 538 S.W.2d 80 (Tex.1976), overruled on other grounds, Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). [4] Merrifield and Camelot executed the Contract on this date. [5] 763 S.W.2d 768 (Tex.1989). [6] 765 S.W.2d 843 (Tex.App.—Dallas 1989, writ denied). [7] 552 S.W.2d 592 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.).

517 F.2d 766 7 ERC 2046, 5 Envtl. L. Rep. 20,354 Timothy W. SWAIN and Katherine A. Swain, Plaintiffs-Appellants,v.Claude S. BRINEGAR, Secretary of Transportation for theUnited States, et al., Defendants-Appellees. No. 74-1625. United States Court of Appeals,Seventh Circuit. Argued Oct. 3, 1974.Decided April 29, 1975. Michael O. Gard, Peoria, Ill., for plaintiffs-appellants. Donald B. Mackay, U. S. Atty., Springfield, Ill., Max Lipkin, Asst. U. S. Atty., Peoria, Ill., Raymond L. Terrell, Springfield, Ill., Larry G. Gutterridge, U. S. Dept. of Justice, App. Div., Washington, D. C., William J. Scott, Atty. Gen., Chicago, Ill., for defendants-appellees. Before SWYGERT, and LAY,* Circuit Judges, and GRANT,** Senior District Judge. SWYGERT, Circuit Judge. 1 Plaintiffs brought this suit to enjoin further action on a segment of a proposed Federal-Aid Highway project in the state of Illinois. They contend that the procedures used in obtaining the approval of the Federal Highway Administration on the proposed freeway were insufficient in law and in violation of the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Specifically, they say that the corridor selection process which took place in 1969 was arbitrary, capricious, and subversive of the legislative policy of full public disclosure and full public participation under the Federal-Aid Highway Act, and that an environmental impact statement (EIS) subsequently submitted in connection with the disputed project was insufficiently detailed under the applicable NEPA standards and illegally delegated to the state highway authorities at the critical drafting stage. They further contend that this suit may be maintained as a class action. On June 3, 1974 the parties consented to a temporary restraining order pending a further hearing on the matter. On June 19, 1974 a consolidated hearing on the merits of the dispute was conducted pursuant to Rule 65(a)(2) Fed.R.Civ.P. Thereafter the trial judge rendered a decision and order dissolving the restraining order and dismissing the complaint on its merits. Swain v. Brinegar, 378 F.Supp. 753 (S.D.Ill.1974). Plaintiffs appeal from that order. 2 * In 1967, Wilbur Smith and Associates, consulting engineers, submitted a report entitled "Illinois Highway Needs and Fiscal Study" to the Illinois Department of Public Works and Buildings. The report, commissioned in 1964, presented the "findings of comprehensive studies of highway, road, and street needs and financing for complete modernization of the state and local systems to safely and efficiently serve travel requirements during the twenty years, 1966-1985, inclusive." The Smith Report was essentially a predictive analysis of future highway needs and attendant costs. It was based primarily on an evaluation of economic and demographic characteristics and trends as they existed prior to 1967. The report itself recognized that unforeseen changes were likely to occur during the projected period and therefore recommended that "a comprehensive program be established for continual reappraisal" of highway needs. The report made no reference to environmental considerations such as pollution, energy resources, or preservation of tillable soil; it proceeded on the assumption that the pre-1967 population and economic trends would continue, that families would be accumulating larger and larger amounts of disposable income during the prediction period, that the motor vehicle industry would therefore continue to expand, and that "Illinois' growing dependence on highway transportation and the extensive influence of automobile services on all segments of industrial activity" would continue unabated. 3 The report recommended, inter alia, the completion of a "trunk" system of interstate highways and supplemental freeways. This system was designed to connect every Illinois city of over 25,000 population; upon its completion, no part of the state would be more than 30 miles from one of its component routes. As presented in the report, the trunk system included a supplemental freeway connecting the cities of Peoria and Lincoln, Illinois. At the present time, these two cities are connected by Illinois Route 121, a two lane highway. The Smith Report did not include any specific reference to the particular need for the Peoria-Lincoln freeway or any specific discussion of the inadequacies of Route 121 or the possibility of upgrading this existing facility. 4 In response to the Wilbur Smith Report, location studies were conducted for a supplemental freeway corridor from Lincoln to Peoria. The Lincoln-Peoria proposal, designated FAP 406, was divided into two component projects. The northerly portion of the freeway project, known as the District 4 project, ran from Peoria on the north to a point between Delavan and Hopedale, Illinois on the south. The southerly portion, which is the subject of this suit, ran from this general area south to an interchange with Interstate I-551 just northwest of Lincoln. Prior to the submission of any public report or the holding of any public hearings regarding the suit project, a corridor approval was obtained for the District 4 project. At the time of the initial hearing on the suit project, therefore, the location of the southpoint of the District 4 project had been established adjacent to and west of Route 121 at a point east of Delavan and southwest of Hopedale.2 5 A corridor location report for the suit project was submitted to a public hearing on July 2, 1969. The report discussed and compared three proposed alignments for the project.3 It did not contain detailed figures or facts as to the need for the project,4 nor did it consider the alternative of upgrading Illinois Route 121. Discussion of environmental considerations was absolutely minimal and entirely conclusory. While the report did recognize the fact that farmland would be taken out of production, no further evaluation of this fact was made other than the simple recognition that it would happen. 6 At the corridor public hearing the three proposed alignments were explained to those in attendance. Again, no information was presented as to the need for the freeway other than a reference to the Wilbur Smith Report. Little reference was made to environmental considerations in the initial presentation, and this fact was recognized by several persons who participated in the meeting. When one citizen asked whether the proposed project had necessarily to be a fully controlled-access freeway his question was met with a simple assertion that "the supplemental freeway system is to be completely controlled-access highway." No further explanation or justification was offered. In short, by the time of the submission of the corridor report, the decision to go ahead with the project would seem to have been all but made, and discussion at that point focused mainly on which of the predetermined corridor alignments presented the best alternative. 7 Plaintiffs contend that this corridor selection process was arbitrary and capricious and in violation of the Federal-Aid Highway Act, 23 U.S.C. § 1285 and PPM 20-86 promulgated thereunder. They say that the corridor report and corridor location hearing were merely pro forma, that the public at large was never fully informed of facts which would substantiate the need for the supplemental freeway or justify the selection of the three specific corridor location alternatives presented in the report, and that the public was thus denied the opportunity to have an effective voice in the planning of the freeway project. They further contend that other reasonable alternative corridor locations should have been included in the corridor report, that the report should have given full consideration to upgrading Route 121 in some fashion, and that a detailed discussion of possible environmental impacts of each of the alternative actions should have been presented to the public in order to facilitate reasoned consideration of all alternatives by those affected. 8 While we agree that the corridor report and hearing could have been more extensive than they were, we also agree with the district judge that there is no evidence of bad faith and that the primary purpose of encouraging public input in the planning stages of this project was served. At the outset of the corridor hearing the public was informed of the general design of the proposed freeway and of twenty-three factors which were considered by the responsible state officials relative to possible social, economic, and environmental effects of the project. Included among these factors were employment, recreation, pollution, aesthetics, and conservation. Public input was therefore invited on a broad range of topics. Written objections were solicited as well as recorded oral statements, and several written objections were received from interested persons including plaintiff.7 9 A full analysis of the three proposed corridor locations was presented in the corridor report and again at the location hearing. PPM 20-8 does not require more than this, but specifically requires only that the study report describe and discuss the "alternatives considered."8 Moreover, the record indicates that several options not discussed in the corridor report or at the location hearing, including upgrading of Route 121 and the specific alternatives offered by plaintiffs, were in fact analyzed and found less advantageous than the location which was finally adopted. The discussion of environmental considerations, while highly conclusory and somewhat superficial, did indicate that such factors were considered by the Illinois Department of Public Works and Buildings, Division of Highways, and certification of this fact was properly made to the Secretary of Transportation as then required by 23 U.S.C. § 128. 10 Plaintiffs' real dispute here is with the ultimate selection of alternate A as the corridor to be used in the construction of the freeway. In this regard they make several logical and persuasive arguments favoring some other alignment. After a careful review of the record, however, we are unable to say that the corridor chosen is patently unreasonable or so clearly arbitrary as to justify a reviewing court in substituting its judgment for that of the Federal Highway Administration which approved this corridor. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1970). Accordingly, we find the corridor selection procedures to have been valid under the law as it existed in 1969 and the ultimate choice of corridor A to be beyond the proper limits of this Court's power of review.9II 11 Having held that the procedures used in 1969 in selecting the corridor for the southerly portion of FAP 406 were valid under 23 U.S.C. § 128 and PPM 20-8, we come to the more difficult question of whether subsequent enactment of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. requires a reevaluation of the project, and whether, if NEPA has not been fully complied with, this project must be enjoined until compliance is obtained. For the reasons which follow, we hold that NEPA does require a full review of the suit project, that such a review has not yet been conducted in compliance with the act, and that further action on this portion of FAP 406 must therefore be enjoined pending a full review and determination by the Federal Highway Administration whether this highway should be built as presently planned. 12 On January 1, 1970 the National Environmental Policy Act became law.10 Under the act, all agencies of the Federal Government are to include in their consideration and development of major federal actions having significant effect on the environment a "detailed statement by the responsible official" on five specific aspects of the proposed action. They are: "(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332(2)(C). 13 This detailed statement is to be issued only after the "responsible federal official" has obtained input from every federal agency which has "jurisdiction by law or special expertise with respect to any environmental impact involved." Id. In addition, comments and views of appropriate state and local agencies are to be solicited and appended to the statement. Upon its completion, this report is to be "made available to the President, the Council on Environmental Quality and to the public . . ., and (it is to) accompany the proposal through the existing agency review processes. . . .." Id. 14 Finally, the Act provides that these provisions shall be applied by all Federal agencies to the "fullest extent possible." 42 U.S.C. § 4332(1). We have previously held that this provision requires evaluation of ongoing projects like the suit project under NEPA: 15 The defendants also claim that Section (4332) of NEPA does not apply to Highway 16 because this project was in progress prior to January 1, 1970, the effective date of the Act. Although the Act is not to be given retroactive effect, it does apply, as the defendants recognize, to certain projects "ongoing" when the Act became effective. Considering the Congressional command that the Act be complied with "to the fullest extent possible," an ongoing project is subject to the requirements of Section (4332) until it has reached that stage of completion where the cost of abandoning or altering the proposed project clearly outweigh (sic) the benefits which could flow from compliance with Section (4332). Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1332 (4th Cir. 1972). Here final federal approval for the project did not occur until over one year after the effective date of the Act. Actual construction was not commenced until almost two years later. Too, the defendants make no claim that they could not have satisfied, the procedures outlined in Section (4332). We hold, therefore, that the issuance of the preliminary injunction did not extend retroactive effect to NEPA. Scherr v. Volpe, 466 F.2d 1027, 1034-35 (7th Cir. 1972). 16 See also Barta v. Brinegar, 358 F.Supp. 1025 (W.D.Wis.1973). Since construction has not commenced on the suit project, it is nowhere near "that stage of completion where the cost of abandoning or altering the proposed project clearly outweigh(s) the benefit(s) which could flow from compliance with Section (4332)." Therefore NEPA requires that an environmental impact statement be prepared for this project prior to any decision to commit federal funds to its completion. III 17 On August 16, 1972 a draft environmental impact statement for the suit project was submitted to the Federal Highway Administration by the Illinois Department of Transportation. This draft consisted of approximately forty-six pages of textual material and numerous maps, charts, and pictures. Its organization was patterned after the requirements of NEPA, and each of the five areas specified in that act was accorded a separate section. A close examination of the draft reveals, however, that the report was rather superficial in several key areas.11 In fact, this draft EIS, like the corridor location study, seems to have proceeded from the assumption that the freeway would be built and that the only questions remaining to be answered were which precise alignments and which design features were to be chosen within the previously selected corridor. 18 Thus, discussion of the need for the proposed freeway was limited to one page of conclusory statements. No consideration of the alternative of upgrading existing Route 121 was presented beyond a simple recitation that such an alternative existed. The alternative of no new construction whatever was dealt with in a single paragraph which relied on "statewide needs studies," presumably referring to the Wilbur Smith Report, though this was never made clear. Alternative alignments were rejected on the basis of the previous corridor selection process, which was conducted prior to the effective date of NEPA. 19 This draft was circulated to the appropriate federal, state, and local agencies for comment. After the views of these agencies were received, the Illinois Department of Transportation prepared the final EIS. An examination of the final statement indicates little substantive change from the original draft. For example, in response to criticisms and suggestions regarding the upgrading of Route 121 by the Illinois Natural History Survey the final draft merely refers back to the elimination of alternatives which took place during the corridor selection process. Similarly, in response to the suggestion by the Environmental Protection Agency that loss of farmland could be considered an adverse effect, the final EIS merely adds two sentences: 20 When considering adverse effects, one that should not be overlooked is the loss of over 700 acres of tillable land. This change in land use brings about many side effects that are never fully noted. 21 There is no indication in the EIS as to what these side effects might be. Thus, in sum and substance the final draft is identical to the original state-prepared draft with a few superficial changes and deletions. 22 On November 9, 1972 the final EIS was submitted to the public at a design public hearing. At the same time a design location study was also submitted. Discussion at this hearing was generally limited to specific design features, although the inadequacies of existing Route 121 were discussed in some detail from a safety standpoint. On October 23, 1973 design approval for the proposed project was given to the Illinois Department of Transportation. 23 The district judge held that the final EIS was "sufficiently detailed to satisfy the requirements of NEPA." 378 F.Supp. at 759. His further discussion of the adequacy of the impact statement is instructive: 24 Plaintiffs assert that the statement filed for FAP 406 fails to explore in sufficient detail alternatives to the proposed route and that it does not explore certain relevant environmental questions in adequate depth. A number of inquiries are suggested by the plaintiffs which they believe should have been made, including extensive chemical pollution tests, the desirability of alternative modes of transportation, and the effect of the removal of farmland from production on the world hunger problem. While unending study of these matters would, no doubt, be beneficial, the failure of the defendants to conduct such studies and to arrive at conclusions thereon here does not render the impact statement inadequate. These questions have a general significance that extends far beyond the limited project envisioned here. It is simply not feasible to hold up a project such as this pending such studies. It would be grossly impractical to do so. An exhaustive examination of every conceivable minor environmental effect of a given project, even though patently and cumulatively detrimental, is simply not required by NEPA. 25 Nor does the defendants' failure to reconsider in greater depth the available alternatives to the proposed corridor invalidate the EIS. It is evident that the corridor selection process was reviewed during the preparation of the impact statement, at least partly at the suggestion of the FHWA. At that time the defendants apparently concluded that the selection of the recommended corridor was reasonable and that no new circumstances had arisen in the meantime which justified reopening the matter. This approach is not inconsistent with the mandate of NEPA that the Act be complied with to the "extent possible." See Citizens to Preserve Foster Park v. Volpe, 466 F.2d 991, 997 (CA 7 1972). Swain v. Brinegar, 378 F.Supp. 753, 759-60 (S.D.Ill.1974). 26 But we believe that one of the fundamental purposes of NEPA is to require consideration of questions of general or broad significance, such as chemical pollution, alternative modes of transportation, and world resource exploitation. The act expressly requires recognition of "the worldwide and long-range character of environmental problems," 42 U.S.C. § 4332(2)(E), and one of the specific elements to be studied in the EIS is "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity." 42 U.S.C. § 4332(2)(C). Thus NEPA is clearly intended to focus concern on the "big picture" relative to environmental problems. It recognizes that each "limited" federal project is part of a large mosaic of thousands of similar projects and that cumulative effects can and must be considered on an ongoing basis. 27 Furthermore, a simple "review" of the corridor selection process is wholly insufficient as a "detailed" consideration of alternatives to the proposed action under section 4332(2)(C). The corridor selection process here did not focus on environmental considerations to any significant degree whatever, and at no point in that process was there any evidence of a detailed consideration of comparative environmental impacts of any of the major alternatives. More importantly, by deferring to the earlier corridor selection process, the ultimate question of whether this fifteen mile segment should be built at all was almost entirely overlooked.12 Clearly, this approach falls far short of fulfilling the basic function of ensuring 28 that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 149 U.S.App.D.C. 33, 449 F.2d 1109, 1114 (1971). 29 We do not find it necessary, however, to suggest what further discussions or considerations within this particular EIS would be necessary to meet NEPA standards. Rather, we confine ourselves to a more fundamental problem, namely, the delegation of responsibility for researching and drafting the impact statement to the Illinois Department of Transportation. Such a delegation is in direct conflict with the language of section 4332(2)(C). That section clearly addresses itself to the actions of federal agencies and federal officials. In pertinent part, section 4332(2)(C) provides: 30 The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall 31 (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on 32 (i) the environmental impact of the proposed action, 33 (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, 34 (iii) alternatives to the proposed action, 35 (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and 36 (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 37 Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; 38 Thus, it is the federal official who is to make the detailed statement after consultation with other interested federal agencies.13 Nothing in the act intimates that this central function is to be delegated, and the entire thrust of the act weighs heavily against delegation to local or state officials.14 Indeed, such a delegation invites the very problems we find reflected in this impact statement. 39 The National Environmental Policy Act is, as its name suggests, aimed at protecting the environmental health of the nation as a whole as well as that of each of its separate parts. In few areas is the importance of this broad policy as clear as it is in the area of highway construction, and in particular the area of major interstate and interurban highways. Such highways have a profound influence on "population growth, high-density urbanization, industrial expansion, (and) resource exploitation." 42 U.S.C. § 4331. While highways of this type are often needed desperately by a population with a real and particular need to travel and expand, it is also true that such highways often create demands for travel and expansion by their very existence.15 Thus, almost any sponsor of a major four lane highway project can say with some assurance that if the highway is built it will be used and auto travel will be safer, faster, and more efficient because of it. In short, "need" is often a self-fulfilling prophesy in the area of major highway construction. 40 Moreover, the apparent "need" for such a highway project may well seem the greatest to those closest to it. Certainly it can be predicted that for those whose responsibility it is to propose and construct such highways, the tendency will be to develop a dedication or loyalty to projects which have advanced to the public hearing stages or beyond. This can hardly be avoided given human nature. In the present instance, for example, the Lincoln-Peoria project had advanced well beyond the public hearing stages by 1970. In fact, construction had already begun for the northerly segment of that project. Under these circumstances there is at least a grave possibility that the EIS requirement was viewed by the state as merely a procedural hurdle to be contended with in order to complete an ongoing project to which the state had made relatively extensive financial and administrative commitments.16 41 Finally, state agencies simply are not in a position to evaluate environmental consequences of a national or worldwide scope.17 To require them to do so is to invite substantial duplication of effort and widely varying results.18 State agencies quite properly look first to the interests of their own state; this is inherent in the design of a federal union. And such agencies are subject to political pressures which can often make detached evaluation of their own projects quite difficult. The result is that state drafted impact statements may slight or completely ignore essential national concerns, and these deficiencies may successfully be masked by use of general, nonspecific language within the EIS itself. Once such a delegation process is established, it is not unlikely that the responsible federal agency will accept the original draft with little comment or change as was done here. 42 This danger must be avoided. It is simply no answer to rely on either the federal agencies to review state-drafted impact statements or on the federal courts to determine the adequacy of this second-hand review.19 The key to NEPA is that the federal agency must consider and evaluate environmental impacts before it determines whether or not to move ahead on a given project. The decision on the project itself is to be made only after preparation of the draft EIS and solicitation of views and comments from "federal, state and local agencies." By the time a state agency reaches the point when an EIS becomes necessary, its decision can fairly be said to have been made, at least with respect to whether the particular highway should be built.20 Delegation of the research and drafting of the initial EIS to such an agency therefore precludes that impartial assessment of environmental consequences which lies at the heart of the National Environmental Policy Act. 43 As the Ninth Circuit has recently pointed out in its en banc opinion in Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974), 44 NEPA is essentially a procedural statute. Its purpose is to assure that, by following the procedures that it prescribes, agencies will be fully aware of the impact of ther (sic) decisions when they make them. The procedures required by NEPA, 42 U.S.C. § 4332(2)(C), are designed to secure the accomplishment of the vital purpose of NEPA. That result can be achieved only if the prescribed procedures are faithfully followed; grudging, pro forma compliance will not do. Id. at 693. 45 In this respect we believe the clear requirement that the "responsible federal official" prepare the EIS for all major federal projects must be strictly enforced. Such a construction not only guarantees that the research and preparation of the EIS will be free of the conscious and subconscious effects of self-serving bias, but it will also avoid the necessity of reviewing each delegated impact statement for substantive content and sufficient federal input. It is difficult for a court to determine when federal review amounts to a "rubber stamp" within the context of an apparently "detailed" and often sophisticated impact statement. More importantly, it may be impossible for either a court or a federal agency to tell when some environmental concern peculiar to a given project has been entirely omitted from such a statement. Rigorous adherence to the statutory procedures will substantially avoid these problems. IV 46 In Count II of their complaint, plaintiffs seek to bring this action as representatives of two alleged classes of people pursuant to Rule 23, Fed.R.Civ.P. The classes are defined in the complaint as 47 (a) all owners and tenants and users of farm land in the State of Illinois who are subject to having farm land they own and farm land from which they make their livelihood condemned for the purposes of the construction of public highways, without being afforded fair notice and hearing and afforded the protection of the National Environmental Protection (sic) Act of 1969, and (b) all owners and tenants and users of farm land in the State of Illinois who are subject to having farm land they own and farm land from which they make their livelihood condemned for the purpose of the construction of Federal Aid Route 406 and including those who have already conveyed or agreed to convey their property under threat of condemnation. 48 A comparison of the two proposed classes with the complaint in this suit indicates that the breadth of these classes outstrips the scope of the complaint and reliefs sought therein. The complaint specifically describes its subject matter as "a segment of a proposed road improvement known as Freeway FAP 406, (which) extends from northwest of Lincoln to approximately 2 miles north of the Delavan junction in Logan and Tazewell Counties, Illinois." It is difficult to see how farmers in areas unaffected by this segment of FAP 406 would have standing to press a claim in this context. Plaintiffs invoke NEPA only insofar as that act "requires that the Defendants protect the environment of the affected farm land " (emphasis added), that is, those farms in the path of one or more of the corridor alignments proposed for this particular project. There is no allegation that persons other than the owners and lessees of these particular farms will be affected by the suit project, and it follows that other farmers in the State of Illinois lack standing to bring this suit. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). 49 Once the class is limited to those farmers actually threatened by the suit project, two difficulties become apparent. First, as the district court pointed out, there is a necessary antagonism between the plaintiffs and those whose farms might be severed if some alternative corridor location for this project were selected. In addition, there is at least a possibility that some of those who have "already conveyed or agreed to convey their property" will have an interest in the integrity of their bargain with the state, and also oppose any change in the corridor selection for this project. 378 F.Supp. at 756. Thus, the Swains cannot meet the requirement of Rule 23(a)(4) Fed.R.Civ.P., that they "will fairly and adequately protect the interests of the class." Second, when the class is limited to those whose farms lay in the path of the suit project, it is not at all clear that these people represent a class so numerous that joinder of all members would be impractical. Rule 23(a) (1), Fed.R.Civ.P. 50 Since there are apparently conflicting interests involved here, and since the owners of properties lying along any of the proposed corridors or along any other reasonable corridor are readily discoverable,21 we believe that the interests of justice are best served by requiring notice and request for joinder rather than determination of a class with an opting-out procedure. 51 We therefore affirm the dismissal of Count II of the complaint. V 52 Because the Federal Highway Administration has failed to conduct an independent, in-depth study of the potential environmental impact of the suit project as required by NEPA, further work on this federally funded highway must cease until such a study is conducted and a proper EIS drafted. This EIS must fully comply with the mandates of NEPA. It must realistically consider all reasonably available alternatives to the proposed project, including no project at all. Analysis of these alternatives must be "detailed" and must reflect meaningful evaluation not only of purely local considerations, but of any significant national or worldwide implications as well.22 If this study indicates that the project should be built as planned, the review process will recommence with a design public hearing, at which time the EIS will be made available to those in attendance. If the study indicates that this project should be modified in some significant way, new corridor public hearings may be required to consider locations suggested by the environmental findings therein. Finally, if the study indicates that the environmental costs of this project are prohibitive, federal funds may be withdrawn from this project as the Federal Highway Administration sees fit. 53 The order of the district court is reversed and the case is remanded to that court with direction to retain jurisdiction pending submission of a proper EIS by the Federal Highway Administration. Upon submission of that EIS, the district court shall make such further order as it deems appropriate consistent with this opinion. 54 GRANT, Senior District Judge (dissenting). 55 I respectfully dissent from that portion of the Court's opinion which holds that there was, in this case, an unlawful delegation of authority with respect to the Environmental Impact Statement (EIS) required by Title 42, U.S.C. § 4332(2)(C). 56 We are here concerned with the construction of a 15-mile segment in the interstate highway system in the State of Illinois a "missing link" that would connect the cities of Lincoln and Peoria in that system. 57 As the Court correctly points out, on August 16, 1972, a draft EIS was submitted to the Federal Highway Administration by the Illinois Department of Transportation. The summary sheet thereof reads as follows: FINAL DESIGN ENVIRONMENTAL STATEMENT SUMMARY SHEET 58 (1) TYPE OF ACTION Administrative Action 59 ( ) Draft 60 (x) Final 61 (x) Environmental Statement 62 ( ) Combination Environmental/Section 4(f) Statement 63 (2) BRIEF DESCRIPTION OF THE IMPROVEMENT 64 The proposed Freeway F.A.P. 406 is a four-lane, fully access controlled facility extending north from Lincoln to Morton. The Freeway begins at an interchange with I-55 northwest of Lincoln and ends at an interchange with I-74 at Morton. The segment considered in this report extends from northwest of Lincoln to approximately two miles north of the Delavan Junction, in Logan and Tazewell Counties in Central Illinois. 65 (3) SUMMARY OF ENVIRONMENTAL IMPACT 66 Approximately 800 acres of various land use types, 95% farmland and 5% pasture will be needed for this improvement. The Freeway will change the noise, air and water pollution elements in the area along with variations of natural grades due to construction. The small communities within the influence of the Freeway will experience possible major changes in economic structure due to developments that may occur near interchange locations. 67 The adverse environmental effects that cannot be avoided are the loss of highly productive agricultural land, the relocation of several farm residences, and revision of local land access patterns in the rural areas. These effects will be corrected by re-establishing the natural eco-systems as close as possible and practical. 68 (4) ALTERNATIVES CONSIDERED 69 Alternatives to the proposed project are: a.) upgrading existing Illinois Route 121 to a full-access controlled high speed facility, b.) constructing a full-access controlled Freeway on a new alinement which would serve the same traffic as existing Illinois Route 121 and c.) not to construct the highway improvement. 70 Obedient to the commands of Section 4332(2)(C), the Federal Highway Administration thereupon submitted the proposed project to a long list of federal and state agencies who, conceivably, could have had an interest, or any input, into the federal decision-making practice. Many of those queried made written replies. 71 A list of the agencies from which comments were requested, together with an indication of those from whom responses were received, is quoted here from the EIS: 72 (5) LIST OF AGENCIES FROM WHICH COMMENTS WERE REQUESTED FEDERAL AGENCIES 73 Department Of Agriculture * Department Of Commerce Economic Development Administration Federal Power Commission 74 Corps Of Engineers * 75 Department Of Housing And Urban Development * 76 Director of Impact Statements Offices, U. S. Department Of Interior (7) * 77 U. S. Environmental Protection Agency (5) * 78 Department Of Health, Education And Welfare 79 Office Of The Secretary (TEU), U. S. Department Of Transportation * U. S. Council On Environmental Quality 80 STATE AGENCIES THROUGH THE STATE CLEARINGHOUSE: 81 * Department Of Agriculture 82 * Department Of Public Health 83 * Department Of Conservation (x) 84 * Department Of Business And Economic Development 85 * Department Of Mines And Minerals (x) 86 * Division Of Waterways (x) 87 * Environmental Protection Agency (x) Department of Corrections (x) Governor's Office Of Manpower Development Department Of Aeronautics (x) Governor's Office Of Human Resources (x) Board Of Vocational Rehabilitation (x) 88 Office Of Comprehensive Health Planning (x) Children & Family Services (x) Illinois Natural History Survey (x) Illinois Archaeological Survey 89 Department Of Local Governmental Affairs (x) Illinois State Geological Survey (x) 90 (x) Written replies were received from these agencies. OTHER AGENCIES Lincoln Chamber Of Commerce Kickapoo Watershed Committee Logan County Plan Commission City Of Lincoln Plan Commission Illinois Central Railroad Gulf Mobile & Ohio Railroad Logan County Highway Department Tazewell County Highway Department 91 Peoria Tri-County Regional Planning Commission Logan County Soil Conservation Service Tazewell County Soil Conservation Service Logan County Farm Bureau Tazewell County Farm Bureau Logan County Board Of Commissioners Tazewell County Board Of Commissioners Emden Village Clerk Hartsburg Village Clerk Delavan City Clerk 92 No written replies were received from these agencies.(6) THE DRAFT ENVIRONMENTAL STATEMENT WAS MADE AVAILABLE TO THE COUNCIL ON ENVIRONMENTAL QUALITY ON SEPTEMBER 28, 1972 93 The majority here would "agree with the district judge that there is no evidence of bad faith and that the primary purpose of encouraging public input in the planning stages of this project was served." They also hold that the corridor hearing, which resulted in the selection of alternate A for this segment of highway, was not "so clearly arbitrary as to justify a reviewing court in substituting its judgment for that of the Federal Highway Administration which approved this corridor." But they then complain that the EIS, consisting of "forty-six pages of textual material and numerous maps, charts and pictures," was on "close examination . . . rather superficial in several key areas." Having concluded that the EIS was inadequate, in their view, they then proceed to decide that the Illinois Department of Transportation had too much input into the initial stages of the process, and that this constituted an improper delegation of authority and that, therefore, the inadequate EIS was void ab initio. 94 It is important that we keep in mind the fact that we are not here dealing with broad policy questions and the pros and cons of a broad network of Interstate Highways, or even at what point an Interstate Highway should bisect the State of Illinois. We are here wrestling with a question involving a 15-mile segment of a previously planned network that needs to be built to complete the freeway system connecting the cities of Peoria and Lincoln. Three alternate corridors had been considered, involving, as they did, the individual interests of competing land owners. 95 After the Federal Highway Administration had submitted the proposed project to all the agencies listed above, and had given them all an opportunity to comment, the FWA thereafter adopted as its own a 155-page Environmental Impact Statement, as contemplated by Section 4332(2)(C) and work was to proceed. It was then that the aggrieved land owner (plaintiff herein), who had been given every opportunity to be heard, and who was heard, filed this suit to stop the program. 96 My brethren write that "nothing in the Act intimates that this central function is to be delegated." To me, it is equally clear that nothing in the Act states that "the responsible official" must himself perform all the multitude of duties that go into the decisionmaking process envisioned by the Environmental Protection Act. 97 I quote with approval from the able opinion of the district court: 98 Plaintiffs assert that the statement filed for FAP 406 fails to explore in sufficient detail alternatives to the proposed route and that it does not explore certain relevant environmental questions in adequate depth. A number of inquiries are suggested by the plaintiffs which they believe should have been made, including extensive chemical pollution tests, the desirability of alternative modes of transportation, and the effect of the removal of farmland from production on the world hunger problem. While unending study of these matters would, no doubt, be beneficial, the failure of the defendants to conduct such studies and to arrive at conclusions thereon here does not render the impact statement inadequate. These questions have a general significance that extends far beyond the limited project envisioned here. It is simply not feasible to hold up a project such as this pending such studies. It would be grossly impractical to do so. An exhaustive examination of every conceivable minor environmental effect of a given project, even though patently and cumulatively detrimental, is simply not required by NEPA. 99 Is there not room for a rule of reason in the application of these statutes? The extent of detail required by NEPA in a highway case such as the one at hand, is well expressed in Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973) as follows: 100 "However, strict though the procedural requirements of Section 102(2) may be, they must be interpreted on a basis of reasonableness. Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972). ' . . . (I)f this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research and time available to meet the Nation's needs are not infinite.' Natural Resources Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). See Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss.1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1972). 101 "As Judge Stuart noted, the environmental statement 'to some extent must be examined in light of the particular facts and circumstances surrounding the project . . . in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.' The discussion of environmental effects need not be 'exhaustive' but rather need only provide sufficient information for a 'reasoned choice of alternatives.' Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D.Wis.1972), where the court stated that Section 102(2) does not require that 'each problem be documented from every angle to explore its every potential for good or ill.' " 102 By Footnote 13 the majority opinion refers in the case before us to Judge Lay's dissent in Iowa Citizens for Environmental Quality, Inc. v. Volpe, supra. In that dissent, we find the same argument that is well stated in this Court's opinion. But the Eighth Circuit held otherwise, and I prefer to cast my lot with the able opinion by Senior Judge Van Oosterhout when he wrote in that case, Iowa Citizens (at p. 854): 103 Section 102(2)(C) of NEPA requires a detailed statement of the environmental impact of a federal project by the responsible federal official. It does not specifically state how such official shall obtain the information upon which his statement is based. Since the enactment of NEPA, FHWA with the acquiescence of the Council on Environmental Quality, and the knowledge of Congress, 3 has consistently interpreted the provisions of NEPA as permitting the delegation of the physical act of gathering the information necessary for the preparation of Section 102(2)(C) EIS to the state highway departments recommending the proposed federal-aid highways. 104 In my view, the Court today by the adoption of the majority opinion has overstepped its role in reviewing the acts of an administrative agency and has substituted its judgment for that of the Federal Highway Administration. In doing so, it joins the ranks of those who have engaged in an economic overkill that, like the adverse effect on the automobile industry, and the long delays in construction of the Alaska pipeline, will plague us for years to come. * Circuit Judge Donald P. Lay of the United States Court of Appeals, Eighth Circuit, is sitting by designation ** Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation 1 The exact location of the I-55 interchange was not a settled issue at the time of the corridor location studies, since I-55 was itself in the hearing and design stages at that time. The suit project contemplated two alternative locations for the I-55 terminus, one at the intersection of I-55 and Route 121 and one west of that location a short distance. Two corridor alternatives running west of Route 121 for the suit project would require the westerly interchange at I-55. An alternative corridor running east of Route 121 for the suit project would interchange with I-55 at the Route 121 intersection 2 At the present time there is an in-place segment of the District 4 project at the Delavan-Hopedale terminus. All corridors thusfar proposed for the suit project have assumed this location to be the logical northern end of the project 3 These three alignments differ principally in respect to their locations relative to existing Route 121. Plaintiff Swain owns a farm to the west of Route 121. Alternate A, which was recommended by the report and ultimately chosen as the project corridor, has the effect of severing the Swain property 4 The only references to the need for this supplemental freeway project consist of one sentence devoted to the Smith Report and three sentences and a map indicating that existing Route 121 has a "higher than average accident experience." 5 In 1969, 23 U.S.C. § 128 provided: § 128. Public hearings (a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway. (b) When hearings have been held under subsection (a), the State highway department shall submit a copy of the transcript of said hearings to the Secretary, together with the certification and report. Pub.L. 90-495, § 24, Aug. 23, 1968, 82 Stat. 828. 6 In 1969, PPM 20-8 provided in pertinent part: 1 Purpose. The purpose of this PPM is to ensure, to the maximum extent practicable, that highway locations and designs reflect and are consistent with Federal, State, and local goals and objectives. The rules, policies, and procedures established by this PPM are to afford full opportunity for effective public participation in the consideration of highway location and design proposals by highway departments before submission to the Federal Highway Administration for approval. They provide a medium for free and open discussion and are designed to encourage early and amicable resolution of controversial issues that may arise The PPM requires State highway departments to consider fully a wide range of factors in determining highway locations and highway designs. It provides for extensive coordination of proposals with public and private interests. In addition, it provides for a two-hearing procedure designed to give all interested persons an opportunity to become fully acquainted with highway proposals of concern to them and to express their views at those stages of a proposal's development when the flexibility to respond to these views still exists. 4 Definitions. As used in this PPM a. A "corridor public hearing" is a public hearing that: (1) Is held before the route location is approved and before the State highway department is committed to a specific proposal; (2) Is held to ensure that an opportunity is afforded for effective participation by interested persons in the process of determining the need for, and the location of, a Federal-aid highway; and (3) Provides a public forum that affords a full opportunity for presenting views on each of the proposed alternative highway locations, and the social, economic, and environmental effects of those alternative locations. 9 Consideration of social, economic and environmental effects. State highway departments shall consider social, economic, and environmental effects before submission of requests for location or design approval, whether or not a public hearing has been held. Consideration of social, economic, and environmental effects shall include an analysis of information submitted to the State highway department in connection with public hearings or in response to the notice of the location or design for which a State highway department intends to request approval. It shall also include consideration of information developed by the State highway department or gained from other contacts with interested persons or groups 10 Location and design approval a. This section applies to all requests for location or design approval whether or not public hearings, or the opportunity for public hearings, are required by this PPM. b. Each request by a State highway department for approval of a route location or highway design must include a study report containing the following: (1) Descriptions of the alternatives considered and a discussion of the anticipated social, economic, and environmental effects of the alternatives, pointing out the significant differences and the reasons supporting the proposed location or design. In addition, the report must include an analysis of the relative consistency of the alternatives with the goals and objectives of any urban plan that has been adopted by the community concerned. 34 Fed.Reg. 727 (1969). It should be noted that no written report was required by 23 U.S.C. § 128, from which this Policy and Procedure Memorandum was derived, until 1970, well after the corridor approval proceedings in this case. 7 The Swains presented their objections and suggestions on July 10, 1969, eight days after the corridor location hearing. These objections were made a part of the record of the corridor hearing and were transmitted therewith to the Federal Highway Administration 8 See PPM 20-8, § 10 supra note 6 9 This finding does not mean that corridor A will necessarily be used for the project. As we will point out, data disclosed in the environmental impact statement to be prepared by the Federal Highway Administration may well dictate a reopening of the corridor selection process. However, if no such environmental data is developed, the 1969 corridor selection will stand and no new corridor hearings will be required. We believe that this approach fully complies with the command of the National Environmental Policy Act that "public laws of the United States shall be interpreted and administered in accordance with the policies set forth" in that act. 42 U.S.C. § 4332(1). Cf. Lathan v. Brinegar, 506 F.2d 677, 687-88 (9th Cir. 1974) 10 Pub.L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852 11 In its initial review letter, the United States Department of Interior described the draft EIS as follows: The statement itself contains many generalities, is lacking in specific information, and inadequately treats the natural environmental resources associated with the project. Letter of November 14, 1972 from Burton H. Atwood, Field Representative for the Secretary of the Interior, to H. W. Monroney, District Engineer, District # 6, Illinois Department of Transportation. 12 Also overlooked in this approach is the appropriateness of considering the Peoria-Lincoln supplemental freeway in two segments rather than as a single project for purposes of NEPA review. As the Eighth Circuit has observed: (I)n order to comply with the spirit and objectives of NEPA . . . to cause a meaningful consideration of environmental effects along with a consideration of alternatives, the minimum length of state highway projects that are supported in part by federal funds must be extended to embrace projects of a nature and length that are supportable by logical termini at each end. Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 (8th Cir. 1973). On the face of this record, the logical termini for the FAP 406 project would seem to be the cities to be connected by the freeway: Lincoln and Peoria. There is no apparent "independent utility" in constructing either of the smaller segments, and the mere existence of a boundary line separating arbitrary state highway department districts does not in itself establish a logical terminus. 13 See Judge Lay's dissent in Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 855-58 (8th Cir. 1973) 14 The district judge misconstrued the nature of NEPA's command relative to the impact statement. He saw its command as merely requiring "the responsible federal official (to) provide an EIS." 378 F.Supp. at 760. The language of the Act belies this construction. Under the act the EIS is described as "a detailed statement by the responsible official." (emphasis added.) The act goes on to say that "(p)rior to making any detailed statement, the responsible Federal official shall consult . . . and obtain . . . comments . . . ." (emphasis added.) Clearly the act contemplates the EIS being prepared by the federal official in the first instance. For this reason PPM 90-1, a procedural memorandum issued by the United States Department of Transportation, and which provides for state preparation of the initial EIS draft, is entitled to scant consideration. Whatever effect an administrative interpretation may have when the command of legislation is in some way ambiguous, when the congressional command is clear, as we believe it to be here, it is simply beyond the power of an administrative agency to alter that command or to avoid its effect. See, e. g., Social Security Board v. Nierotko, 327 U.S. 358, 368-70, 66 S.Ct. 637, 90 L.Ed. 718 (1946) 15 Thus, the Wilbur Smith Report recognizes that (w)here conditions are favorable for economic expansion, highways can serve as catalysts. The impact of highways on land use is illustrated by the development along the Edens Expressway in Chicago. It is evident that industries have invested large sums in new facilities located on land adjacent to this facility and that plants and population have been attracted to the area where adequate transportation is available. Illinois Highway Needs and Fiscal Study at p. 35. 16 See Comment, The Preparation of Environmental Impact Statements by State Highway Commissions, 58 Iowa L.Rev. 1268 (1973), for a thoughtful evaluation of the problems inherent in state preparation of impact statements for major highway projects 17 Thus, the district judge believed that "chemical pollution . . . alternative modes of transportation . . . and . . . the world hunger problem . . . have a general significance that extends far beyond the limited project envisioned here." 378 F.Supp. at 760. It is not unlikely that state officials may take the same view. Indeed, it would be entirely logical for them to do so since they have limited access to the kinds of information required to accurately evaluate many of these and similar problems 18 Obviously, there is little to recommend a procedure whereby various officials and departments in each of the fifty states independently research and evaluate such problems. Beyond the duplication of expense, such a procedure is anomalous in light of the policies and goals reflected in section 4331 of the act: § 4331. Congressional declaration of national environmental policy (a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans. (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources . . . . If the requirement of an environmental impact statement for major federal actions is designed to further the fulfillment of "the continuing responsibility of the Federal Government to use all practicable means . . . to improve and coordinate Federal plans, functions, programs, and resources . . . ." (emphasis added), it seems odd that this central function (the EIS) should be delegated to state officials who have little means, motivation, or indeed power to effectively coordinate such federal actions. 19 See Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 930-34 (2d Cir. 1974); but see Citizens' Environmental Council v. Volpe, 484 F.2d 870, 873 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 853-54 (8th Cir. 1973); Life of the Land v. Brinegar, 485 F.2d 460, 467-68 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Sierra Club v. Lynn, 502 F.2d 43, 59 (5th Cir. 1974) 20 In the case of the suit project this predetermination is reflected in the cover letter which accompanied the state-drafted EIS to the Federal Highway Administration: Attached for distribution by your office are 18 copies of a draft environmental statement for the portion of Supplemental Freeway FAP Route 406 from Lincoln to the Delavan Junction. I request that you process the attached statements as quickly as possible to avoid any unnecessary delay in this project. It seems clear from the tenor of this letter that the EIS was viewed by the state agency as a step along the way in an ongoing project and not as part of the process of determining whether a project should be undertaken in the first instance. 21 It appears from an examination of the record and exhibits on file in this case that this information may be readily obtained from the Illinois Department of Transportation 22 We recognize, of course, that not every project of this type will have national or worldwide implications in and of itself. We do believe, however, that these projects should be viewed and evaluated in context with other similar projects throughout the nation to the extent that such evaluation may provide a basis for judgments as to large scale environmental priorities. Thus, for instance, while a single freeway project through farmlands may have negligible effect on world or national food problems, a major trend toward construction of many of these projects nationwide may have definite implications in these or other areas. One of the primary functions of an EIS is the isolation and evaluation of such trends * Written replies were received from these agencies * Agencies are coordinated under the National Resources Development Board of the State of Illinois 3 On June 16, 1971, Russell Train, Chairman of the Council on Environmental Quality, testified before the House Subcommittee on Investigation and Oversight and fully apprised this Subcommittee of FHWA's procedure of relying on state agencies for much of the information contained in environmental impact statements. Hearings on Red Tape Before the Subcommittee on Investigations and Oversight of the House Committee on Public Works, 92d Cong., 1st sess., pp. 261-263. See also Hearings Before the Subcommittee on Roads of the Senate Committee on Public Works, 91st Cong., 1st sess., p. 7 (August 25, 1970)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) SIERRA CLUB, ) ) Civil Action No. 01-1537 (PLF) Plaintiff, ) (consolidated with ) Civil Action No. 01-1548 v. ) Civil Action No. 01-1558 ) Civil Action No. 01-1569 LISA P. JACKSON, Administrator, ) Civil Action No. 01-1578 United States Environmental ) Civil Action No. 01-1582 1 Protection Agency, ) Civil Action No. 01-1597) ) Defendant. ) ____________________________________) OPINION “This case concerns defendant EPA’s failure to discharge fully its duty under the 1990 Clean Air Act amendments to promulgate regulations governing the discharge of certain hazardous air pollutants.” Sierra Club v. Johnson, 444 F. Supp. 2d 46, 47 (D.D.C. 2006). By Order of March 31, 2006, this Court entered judgment for plaintiff, finding that EPA’s admitted failure to promulgate emission standards pursuant to the Clean Air Act constituted “a failure of the Administrator to perform any act or duty under this chapter that is not discretionary with the Administrator” within the meaning of Section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2). See Order at 1, Mar. 31, 2006. The Court ordered EPA to fulfill its statutory duties regarding the promulgation of emission standards under Sections 112(c)(3) and (k)(3)(B), Section 112(c)(6), and Section 183(e) on a prescribed schedule. See id. at 1-3. The Court explained the reasoning underlying its March 31, 2006 Order in its August 2, 2006 Opinion. See Sierra Club v. Johnson, 444 F. Supp. at 46. 1 Under Rule 25(d)(1) of the Federal Rules of Civil Procedure, EPA Administrator Lisa P. Jackson has been substituted as the defendant for former Administrator Stephen L. Johnson.  Pursuant to the schedule established by the Court’s Order, EPA was to have fully discharged all of its statutory duties by June 15, 2009. See Order at 3, Mar. 31, 2006; Sierra Club v. Johnson, 444 F. Supp. 2d at 48. Since 2006, however, the Court has granted a number of EPA’s motions to extend the deadlines in its March 31, 2006 Order, all without opposition from plaintiff. Thus, as amended, the Court’s March 31, 2006 Order now requires, in relevant part, that EPA fully discharge its statutory duties under Sections 112(c)(3) and (k)(3)(B), and Section 112(c)(6) of the Clean Air Act by January 21, 2011. See Order at 1-2, Sept. 20, 2010; Order at 1, Jan. 12, 2011. EPA now requests an extension of this January 21, 2011 deadline — but this time its request is opposed.2 This matter is before the Court on EPA’s motion to amend paragraphs 1(i) and 3 of the Court’s March 31, 2006 Order to allow EPA additional time to promulgate regulations governing emission standards for certain hazardous air pollutants. Six intervenors have collectively filed a response in support of EPA’s motion. Plaintiff opposes the motion. Upon consideration of the parties’ and intervenors’ arguments, the applicable legal standards, and the entire record in this case, the Court will deny in part and grant in part EPA’s motion.3 2 The parties’ papers refer to a deadline of January 16, 2011. Because that date was a Sunday and January 17, 2011 was a federal holiday, the Court, with the agreement of the parties, extended this January 16, 2011 deadline to January 21, 2011, pending a decision on EPA’s motion. See Order at 1, Jan. 21, 2011. The Court thus refers throughout this Opinion to January 21, 2011 as the applicable deadline. 3 The papers reviewed in connection with the pending motion include the following: EPA’s corrected motion to amend Order of March 31, 2006 (“Mot.”); Exhibits 1 through 6 to Mot., including the Declaration of Panagiotis E. Tsirigotis (attached as Exhibit 6 to Mot.) (“Tsirigotis Decl.”); plaintiff’s opposition to EPA’s motion to amend Order of March 31, 2006 (“Opp.”); Exhibits A through I to Opp.; response by intervenors to EPA’s motion to amend Order of March 31, 2006 (“Intervenors’ Response”); the six Declarations attached to Intervenors’ Response; plaintiff’s reply to response by intervenors (“Pl.’s Reply to Intervenors”); EPA’s reply (“Reply”); the Supplemental Declaration of Panagiotis E. Tsirigotis (attached to Reply) (“Tsirigotis Supp. Decl.”); and plaintiff’s surreply (“Surreply”). The Court also reviewed the parties’ summary judgment papers. 2  I. BACKGROUND A. The Clean Air Act and the 1990 Amendments The Clean Air Act (“CAA” or “the Act”) regulates hazardous air pollutants (“HAPs”). The first federal attempt to regulate these HAPs, enacted in 1970, “worked poorly.” See S. REP . NO . 101-228, at 128 (1989). Indeed, from 1970 until 1990, “EPA . . . listed only eight substances as hazardous air pollutants . . . and . . . promulgated emissions standards for seven of them.” See H.R. REP . NO . 101-490, pt. 1, at 322 (1990). Accordingly, on November 15, 1990, Congress enacted sweeping revisions to the Act. See PUB. L. NO . 101-549, 104 STAT . 2399. The purpose of these revisions was to “entirely restructure the existing law, so that toxics might be adequately regulated by the Federal Government.” S. REP . NO . 101-228, at 128 (1989). In place of the prior “risk-based approach,” Congress imposed a technology-based emission- control scheme that limited EPA’s discretion and that set strict requirements and deadlines for the promulgation of emission standards. See NRDC v. EPA (“NRDC II”), 489 F.3d 1364, 1368 (D.C. Cir. 2007). As the Court previously described: Title III of the revised statute created a complex scheme for the regulation of 189 specified [HAPs], and directed EPA to identify the sources of those pollutants and to promulgate regulations governing the emission of HAPs from those sources. Congress by statute added to the Clean Air Act the list of pollutants to be regulated, minimum stringency requirements, and (most important for this case) regulation deadlines. It did so because it believed that EPA had failed to regulate enough HAPs under previous air toxics provisions. 3 Sierra Club v. Johnson, 444 F. Supp. 2d at 48 (emphasis added). Title III recognizes and directs EPA to identify and regulate two basic kinds of sources of air pollutants: (1) major sources; and (2) area sources. Id. These two types of sources are distinguished by the amount of their respective HAP emissions. See id.; see also 42 U.S.C. §§ 7412(a)(1), (2). At issue in this case are the following two requirements regarding both area sources and major sources: 1. Regulate area sources of the thirty most dangerous HAPs: Sections 112(c)(3) and (k)(3)(B) of the Act, 42 U.S.C. §§ 7412(c)(3) and (k)(3)(B), require EPA (1) to “identify not less than 30 hazardous air pollutants which, as the result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas”; (2) to identify the categories or subcategories of sources “accounting for 90 per centum or more of the aggregate emissions of each of the 30 identified hazardous air pollutants” by November 15, 1995; and (3) to issue emission standards for those area source categories by November 15, 2000. Sierra Club v. Johnson, 444 F. Supp. 2d at 49. The emission standards must be based on one of three types of pollution control mechanisms: (1) maximum achievable control technologies (“MACTs”); (2) health-based standards; or (3) generally available control technologies. See 42 U.S.C.§§ 7412(d)(2), (d)(4), and (d)(5). As of 2006, EPA had fulfilled the first two of its duties under Sections 112(c)(3) and (k)(3)(B). EPA had failed, however, to fulfill its third duty: by 2006, it had promulgated emission standards for only fifteen of seventy area source categories. Sierra Club v. Johnson, 444 F. Supp. 2d at 49. 2. Regulate sources of seven statutorily-specified HAPs: Section 112(c)(6) of the Act calls for EPA to regulate the sources of seven specific HAPs, without regard to whether those sources are major sources or area sources and without regard to their inclusion on EPA’s 4 list of sources of the thirty most dangerous HAPs. See 42 U.S.C. § 7412(c)(6); Sierra Club v. Johnson, 444 F. Supp. 2d at 49. EPA’s duties and deadlines with respect to Section 112(c)(6) are identical to its duties with respect to the thirty most dangerous HAPs under Sections 112(c)(3) and (k)(3)(B). See 42 U.S.C. § 7412(c)(6). The only difference is that EPA emission standards promulgated pursuant to Section 112(c)(6) cannot be based on generally available control technologies. Rather, the emission standards must be either (1) MACTs or (2) health-based standards. See 42 U.S.C. §§ 7412(d)(2) and (d)(4). As the Court explained in Sierra Club v. Johnson, because one source may emit numerous pollutants, there is the potential for EPA to satisfy its Section 112(c)(3) and (k)(3)(B) requirements and its Section 112(c)(6) requirements simultaneously. See Sierra Club v. Johnson, 444 F. Supp. 2d at 48 n.3. In other words, EPA may not need to promulgate regulations directly under Section 112(c)(6), because regulations it promulgates under other sections of the Act may suffice to “account[] for 90 per centum or more of the aggregate emissions” of the pollutants listed in that section. Id. at 59. Nevertheless, as of 2006, EPA had failed to promulgate emission standards under Section 112(c)(6) for five source categories. Id. at 49. These five source categories were also among the fifty source categories that were required to be regulated under Sections 112(c)(3) and (k)(3)(B). Id. at 50. B. History of This Litigation In 2001, plaintiff filed seven different complaints against EPA, each seeking relief for EPA’s failure to discharge a different aspect of its regulatory duties under the Act. These cases were consolidated, and the parties entered into a partial consent decree on May 22, 2003. 5 Other issues could not be resolved, however, and the parties eventually filed cross-motions for summary judgment. EPA did not contest the issue of liability: it admitted that it had failed to promulgate regulations by the statutory deadline of November 15, 2000. Accordingly, the only matter before the Court was to fashion an appropriate equitable remedy. On March 31, 2006, the Court issued its Order denying EPA’s motion for summary judgment and granting summary judgment in favor of plaintiff. The Court ordered EPA to fulfill its statutory duties under Sections 112(c)(3) and (k)(3)(B), Section 112(c)(6), and Section 183(e) on a prescribed schedule that would “best preserve the intent of Congress in enacting the 1990 Clean Air Act Amendments, without calling upon defendants to do the impossible.” See Sierra Club v. Johnson, 444 F. Supp. 2d at 61. That Order required, in relevant part, that EPA “promulgate standards under CAA Section 112(d) for those area source categories listed by EPA pursuant to CAA Section 112(c)(3) and (k)(3)(B) as source categories that are necessary to meet the 90 percent statutory threshold identified in Section 112(c)(3) and (k)(3)(B), and for which it has not yet issued standards” on a set schedule to be completed in full by June 15, 2009. See Order at 2, Mar. 31, 2006; Sierra Club v. Johnson, 444 F. Supp. 2d at 48, 61. That Order further required that “[n]o later than December 15, 2007, EPA shall promulgate emission standards assuring that source categories accounting for not less than ninety percent of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6) are subject to emission standards under Section 112(d)(2) or (d)(4).” Order at 3, Mar. 31, 2006; Sierra Club v. Johnson, 444 F. Supp. 2d at 48, 61. After March 31, 2006, EPA moved for a number of unopposed extensions of time to complete its obligations. See Order at 1-2, Nov. 13, 2008; Order at 1-2, June 30, 2009; Order 6 at 1-2, Sept. 10, 2009; Order at 1, Apr. 13, 2010. On August 31, 2010, EPA requested, without opposition from plaintiff, that the Court amend paragraphs 1(i) and 3 so as to extend its deadline from December 16, 2010 to January 16, 2011. See Unopposed Mot. to Amend Order at 1, Aug. 31, 2010. On September 20, 2010, the Court granted EPA’s request, and the Court has since extended the deadline to January 21, 2011. See supra n.2. Accordingly, as amended, the March 31, 2006 Order provides, in relevant part: 1. EPA shall promulgate emission standards under section 112(d) assuring that area sources representing ninety percent of the area source emissions of the 30 urban hazardous air pollutants identified pursuant to section 112(k)(3) are subject to emissions standards as follows: * * * * (i) EPA shall promulgate emission standards under section 112(d) or section 129 assuring that area sources representing ninety percent of the area source emissions of the 30 urban hazardous air pollutants are subject to emissions standards by January 21, 2011. * * * * 3. No later than December 16, 2010, the Agency shall promulgate emission standards for one additional category pursuant to section 112(c)(6). No later than January 21, 2011, the Agency shall promulgate emission standards assuring that sources accounting for not less than ninety percent of the aggregate emissions of each of the hazardous air pollutants enumerated in Section 112(c)(6) are subject to emission standards under Section 112(d)(2) or (d)(4). See Order at 1-2, Sept. 20, 2010; Order at 1, Jan. 12, 2011. As required by paragraph 3, on December 16, 2010, EPA signed the final rule “National Emission Standards for Hazardous Air Pollutants: Gold Mine Ore Processing and Production Area Source Category; and Addition to 7 Source Category List for Standards.” See Def.’s Notice of Subsequent Event, Dec. 21, 2010. Still at issue, however, is the January 21, 2011 deadline in both paragraph 1(i) and paragraph 3. EPA now requests that this deadline be extended. See Mot. at 1-4. C. EPA’s Proposed Schedule As EPA explains, the key for each of its remaining obligations “is reaching the ninety percent threshold.” Mot. at 2. Since 2006, EPA has promulgated final rules establishing emission standards for forty-eight area source categories pursuant to paragraph 1, and EPA has promulgated emission standards for two source categories pursuant to paragraph 3. See Tsirigotis Decl. ¶¶ 9, 10. With respect to paragraph 3, in order to reach the required ninety percent threshold, EPA asserts that it needs to complete additional emission standards for (1) certain area source boilers, (2) major source boilers, and (3) commercial and institutional solid waste incineration (“CISWI”) units (collectively, “the Three Air Rules”). Id. ¶¶ 11 & n.2, 41. With respect to paragraph 1, in order to reach the required ninety percent threshold, EPA asserts that it needs to complete additional emission standards for (1) area source boilers, and (2) sewage sludge incineration (“SSI”) units. Id. ¶¶ 9, 42. Paragraph 3: On April 29, 2010, the EPA Administrator signed proposed emission standards for the Three Air Rules. Tsirigotis Decl. ¶ 23. These proposed rules were then published in the Federal Register on June 4, 2010. Id. ¶ 25. Although the public comment period was originally to close on July 19, 2010, given the significant public interest in these rules, EPA granted extensions until August 23, 2010. Id. ¶¶ 29, 30. EPA received over 4,800 individual comments in response to those proposed rules. Id. ¶¶ 32-34. EPA now asserts that 8 those comments “may materially affect important decisions relating to source categorizations and coverage for the final emission standards.” Mot. at 2. Thus, “EPA believes that the purpose of section 112(c)(6) and the public interest will be best served if the Agency’s deadline in [p]aragraph 3 is extended . . . to April 13, 2012, so that EPA can re-propose the rules for further public comment to ensure that the final rules are logical outgrowths of the proposals.” Id. at 3; see Tsirigotis Decl. ¶¶ 4, 34-37. In the alternative, EPA requests an extension until June 15, 2011 to allow EPA time to fully respond to the 4,800 individual comments it received. Mot. at 4; Tsirigotis Decl. ¶¶ 5, 40. Paragraph 1: Because the standards for certain area source boilers are necessary for EPA to complete its obligations under both paragraphs 1(i) and 3, EPA requests that the deadline for it to complete all emission standards required under both paragraphs 1(i) and 3 be extended to the same date — April 13, 2012. As to the one remaining area source category relevant to paragraph 1(i), SSI units, the EPA Administrator signed a proposed rule on September 30, 2010. Tsirigotis Decl. ¶ 47. The public comment period closed on November 29, 2010. Id. EPA received over eighty individual comments in response to its SSI proposal. Id. ¶ 48. EPA does not request an extension of time to re-propose this rule; rather, EPA requests an extension until July 15, 2011, so that it can fully respond to the individual comments it received. Mot. at 4; Tsirigotis Decl. ¶¶ 6, 49. 9  II. DISCUSSION A. Standard of Review Despite the complexity of the statutory scheme at issue, the Court is again presented with a single question for review: whether EPA has met the “heavy burden” of demonstrating that it would be impossible to comply with the current January 21, 2011 deadline for the promulgation of the remaining emission standards. See Sierra Club v. Johnson, 444 F. Supp. 2d at 53, 58. The principles discussed in Sierra Club v. Johnson guide the Court’s decision on the matter before it now. See NRDC v. Train, 510 F.2d 692, 713 (D.C. Cir. 1974) (“Similar considerations apply after the issuance of an order when the defendant petitions for modification or the court considers the propriety of resorting to contempt to coerce compliance.”). The Court, however, elaborates on several points. First, it is established that where, as here, “an agency has failed to meet a statutory deadline for a nondiscretionary act, the [C]ourt may exercise its equity powers ‘to set enforceable deadlines both of an ultimate and an intermediate nature[.]’” Sierra Club v. Johnson, 444 F. Supp. 2d at 52 (quoting NRDC v. Train, 510 F.2d at 705). Although a court may appropriately decline to impose a deadline that would call on an agency to do the impossible, the “heavy burden” of proving such an impossibility rests squarely on the agency. Id. at 52-53 (quoting Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D.C. Cir. 1979)). As a general rule, “[f]lexibility rather than rigidity has distinguished equity jurisprudence.” NRDC v. Train, 510 F.2d at 713 (internal quotations and citation omitted). Nevertheless, the court of appeals has cautioned that a district court must scrutinize carefully claims of impossibility, and must “separate justifications grounded in the purposes of the Act 10 from the footdragging efforts of a delinquent agency.” Id. “When Congress expresses its intent that regulations be promulgated by a date certain” — in this case, November 15, 2000, more than ten years ago — “that intent is of utmost importance; a court considering a claim of impossibility must not ‘order a remedy that would . . . completely neutralize the mandatory nature of the statutory directive.’” Sierra Club v. Johnson, 444 S. Supp. 2d at 53 (quoting Sierra Club v. Browner, 130 F. Supp. 2d 78, 95 (D.D.C. 2001)). To prove impossibility, “it is insufficient for the agency to demonstrate only that it has proceeded in good faith; it also must demonstrate ‘utmost diligence’ in its efforts to comply with the statute.” See Sierra Club v. Johnson, 444 F. Supp. 2d at 53. Because a “court’s injunction should serve like adrenalin, to heighten the response and to stimulate the fullest use of resources,” NRDC v. Train, 510 F.2d at 712, it is of course not the case than an agency can fail to act with “the fullest use of resources” and then claim, at the last minute, that compliance is impossible. Instead, although an agency’s current position may be relevant to a court’s ultimate conclusion on whether action is impossible, a court will examine all of the agency’s actions and inactions following the initial injunction or other court order in determining whether an extension of a deadline is appropriate. See id. at 712-13; Sierra Club v. Johnson, 444 F. Supp. 2d at 52-53. Here, the statutory mandates and court-ordered deadline at issue relate to the promulgation of emission standards for certain HAPs by a date certain. Thus, in order for EPA to demonstrate the existence of an impossibility for purposes of its pending motion, EPA must prove to the Court that it has in good faith exercised utmost diligence in its efforts to promulgate the required emission standards pursuant to paragraphs 1(i) and 3 by the Court’s deadline of January 21, 2011. 11  One final point requires discussion. Although EPA, like all agencies, should always strive to develop the most effective and sound regulations, “that quest must give ground in favor of expedition where Congress expressly directs the Administrator to establish standards promptly.” See State v. Gorsuch, 554 F. Supp. 1060, 1065 (S.D.N.Y. 1983). In light of Congress’ express directive on the deadline for the promulgation of HAP regulations, the focus must be on “substantively adequate regulations” — not perfect regulations. See Sierra Club v. Johnson, 444 F. Supp. 2d at 56 (“[C]ourts evaluating claims of impossibility when an agency has failed to meet a mandatory deadline generally have rejected claims that additional time is needed to ensure substantively adequate regulations.”); see also NRDC v. Train, 510 F.2d at 712 (describing the necessary “formulation of adequate guidelines”); Sierra Club v. Thomas, 658 F. Supp. 165, 175 (N.D. Cal. 1987) (“[T]he Court would extend EPA’s time to compensate for its footdragging if it were convinced that doing so was necessary for the promulgation of workable regulations.”). So the question remains: has EPA met its “heavy burden” of demonstrating that it would be impossible to promulgate “substantively adequate regulations” pursuant to paragraphs 1(i) and 3 of the Court’s March 31, 2006 Order by January 21, 2011? Answering this question presents a complication for this Court: the Clean Air Act “‘does not allow district courts to address the content of EPA’s conduct’” or “‘issue substantive determinations of its own’” on promulgated regulations. Sierra Club v. Johnson, 444 F. Supp. 2d at 60 (quoting Sierra Club v. Browner, 130 F. Supp. 2d at 90). “[S]uch substantive judicial review is expressly reserved for the appropriate court of appeals.” Sierra Club v. Browner, 130 F. Supp. 2d at 90. Since the Court cannot “embroil [itself] in an assessment of the substance of EPA’s actions or omissions,” id. at 90, the Court must be cautious where, as here, EPA’s motion 12 for an extension of time focuses, in part, on the substantive quality of its rules. The only way for this Court simultaneously to comply with 42 U.S.C. § 7607(b) and the court of appeals’ guidelines in NRDC v. Train is to give deference to EPA’s ultimate conclusion on the substantive merit of its rules. As discussed below, however, even granting such deference, the Court finds that EPA has not met its heavy burden of proving impossibility. B. The Substantive Concern — Re-Proposing the Three Air Rules EPA requests an extension of time to re-propose the Three Air Rules. These rules relate to EPA’s requirements under both Section 112(c)(6), and Sections 112(c)(3) and (k)(3)(B). In light of the comments received after EPA proposed these rules on April 29, 2010, EPA contends that “[a] re-proposal would result in standards that are more defensible and will yield environmental benefits earlier, because the final standards will more likely withstand substantive review.” Mot. at 20-21; see Tsirigotis Decl. ¶¶ 34, 37. According to EPA: “On balance, given the broad impact these rules will have, EPA believes that the overall public interest is best served by allowing EPA to re-propose the rules so that [it] will be able to issue emission standards that are based upon a thorough consideration of all available data and reduce potential litigation risks.” Mot. at 14; see Tsirigotis Decl. ¶¶ 34, 37. In support of its motion, EPA filed a declaration from Panagiotis E. Tsirigotis, the Director of the Sector Policies and Programs Division within the Office of Air Quality Planning and Standards, Office of Air and Radiation at EPA. Mr. Tsirigotis provides background on the rulemaking process for the Three Air Rules and explains why EPA only proposed these rules on April 29, 2010, just nine months short of the court-ordered deadline at the time, December 16, 13 2010. See Tsirigotis Decl. ¶¶ 12-24. In short, during the spring and summer of 2007, the court of appeals issued three decisions that “substantially impacted how [EPA] sets MACT emission standards” under the Act. Id. ¶¶ 13, 15; see Sierra Club v. EPA, 479 F.3d 875, 882-83 (D.C. Cir. 2007); NRDC v. EPA (“NRDC I”), 489 F.3d 1250, 1257-61 (D.C. Cir. 2007); NRDC II, 489 F.3d at 1374-75. Although EPA asserts that all three decisions had an impact on EPA’s MACT methodology, EPA explains that NRDC I directly related to EPA’s requirements for purposes of satisfying Section 112(c)(6), because in that case the court of appeals vacated emission standards for major source boilers and vacated a rule regarding the definition of CISWI units. See Tsirigotis Decl. ¶ 14. Following these three decisions, EPA “determined that it needed additional information from data and major industrial, commercial and institutional boilers and process heaters and CISWI units in order to set defensible MACT emission standards” under the Act. Tsirigotis Decl. ¶ 16. EPA prepared an information collection request, which triggered a complicated but, EPA contends, necessary set of time-consuming processes, involving (1) Office of Management and Budget (“OMB”) approval for its information collection request, (2) public comment on its information collection request, and (3) a two-phased information collection process. See id. ¶¶ 16-23. The first phase required facilities to submit existing information, and the second phase required certain facilities “to conduct a suite of stack tests to evaluate their emissions of hazardous air pollutants and certain other pollutants, such as particulate matter and carbon dioxide.” Id. ¶ 17. After this entire process was complete, on April 29, 2010, the EPA Administrator signed the proposed Three Air Rules. Tsirigotis Decl. ¶ 23. These rules were published in the 14 Federal Register on June 4, 2010. Id. ¶ 25. Although the comment period was originally to close on July 19, 2010, given the significant public interest in these rules, EPA granted extensions until August 23, 2010. Id. ¶¶ 29, 30. EPA explains that it received a significant number of public comments in response. Mot. at 2; Tsirigotis Decl. ¶¶ 32-34. Specifically, EPA received over 4,800 individual comments, and Mr. Tsirigotis now asserts that “[t]hese comments raise several significant issues and provide new information and data.” Tsirigotis Decl. ¶ 34. Mr. Tsirigotis explains that “there were a number of significant issues raised in the comments that may result in certain changes to the proposed rules that, [EPA] believe[s], could change the direction from the proposals sufficiently to make additional notice and comment advisable.” Id. ¶ 34. Thus, according to Mr. Tsirigotis: “Based on the comments and new information and data, . . . a re-proposal of the major source boilers, area source boilers and CISWI rules would significantly bolster the strength of the final rules.” Id. “[T]he re-proposal approach will result in standards that are more defensible and will yield environmental benefits earlier, because the final standards will more likely withstand substantive review.” Id. ¶ 37. EPA therefore provides what it contends is “an achievable, but very aggressive schedule for a re-proposal,” Mot. at 3, and requests that its deadline be extended until April 13, 2012.4 In response, plaintiff argues that EPA fails to meet the standard for impossibility, and that the Court therefore should deny EPA’s requested extension. Among other things, 4 Intervenors’ response in support of EPA’s motion largely mirrors EPA’s briefing, except that intervenors’ position goes beyond what EPA argues, contending that the Three Air Rules are “fundamentally flawed . . . . hence re-proposals are in order.” Intervenors’ Response at 3. The Court’s focus, however, is on EPA’s view of its rules — not intervenors, who are free to seek substantive review of the rules in the court of appeals. See 42 U.S.C. § 7607(b). 15 plaintiff contends that EPA “adopted a rulemaking approach involving extensive discretionary delay.” Opp. at 9. According to plaintiff, EPA’s decision to collect information in two separate phases was a wholly discretionary decision that caused the information collection process to go on for more than two years. Id. Moreover, plaintiff contends, EPA failed to ask OMB to expedite its review of EPA’s information collection request pursuant to 44 U.S.C. § 3507(j)(1)(B)(iii), which is permitted when the normal review process “is reasonably likely to cause a statutory or court-ordered deadline to be missed.” Opp. at 9; see 44 U.S.C. § 3507(j)(1)(B)(iii). Plaintiff then notes that EPA failed to provide any discussion of how it has allocated its resources for purposes of attempting to comply with the Court’s Order: “Neither EPA nor Mr. Tsirigotis indicates how many employees or contractors are working on the job and whether more could be deployed.” Opp. at 11. Finally, plaintiff asserts that EPA’s central argument is one the Court clearly rejected in Sierra Club v. Johnson: that additional time will result in more defensible rules. See Opp. at 14 (citing Sierra Club v. Johnson, 44 F. Supp. 2d at 53, 57). Plaintiff points out that EPA has merely suggested that “it might choose to make changes to the final rule that might not be logical outgrowths from the proposal.” Id. EPA does not, however, “claim that it needs to make such changes or will make them.” Id. And EPA has failed to consider Section 307(d)(7)(B) of the Act, a provision that provides for administrative reconsideration of a rule without necessarily postponing the effectiveness of that rule. Id. at 15; see 42 U.S.C. § 7607(d)(7)(B). Thus, plaintiff contends, EPA’s concerns about the merits of its rules could be addressed under Section 307(d)(7)(B), obviating any purported need for re-proposal and further delay. See Opp. at 15. 16  The Court agrees with plaintiff. First, although much of the time-consuming rulemaking process for the Three Air Rules may have been appropriate under normal circumstances, the Court concludes that EPA engaged in discretionary delay in the face of a congressional directive. As an example, it appears to the Court that the OMB review process took between six and eight months. See Tsirigotis Decl. ¶¶ 16-21; Surreply at 5 n.3. EPA could have requested expedited OMB authorization for its information collection request; such expedited authorization is expressly permitted when “the use of normal clearance procedures is . . . reasonably likely to cause a statutory or court ordered deadline to be missed.” 44 U.S.C. § 3507(j)(1)(B)(iii) (emphasis added). EPA asserts that, in the fall of 2007, at the time it was preparing the information collection request, it “could not have reasonably anticipated how prolonged the . . . process would become.” Reply at 17-18; see Tsirigotis Suppl Decl. ¶ 14. By statute, however, EPA’s emission standards were already seven years overdue — and EPA’s court-ordered deadline was soon approaching. Given these deadlines, it should have been clear to EPA that proceeding through the normal OMB process was “reasonably likely to cause a statutory or court ordered deadline to be missed.” See 44 U.S.C. § 3507(j)(1)(B)(iii). Defending its information collection process, EPA also contends that, “[g]iven the public interest in the rules and the number and variety of facilities that would be regulated, it was important to secure public input . . . to ensure that the necessary information would be obtained.” Reply at 18. But like the four-phase regulatory process proposed and rejected at the summary judgment stage, EPA’s determination was “indicative of ‘a level of thoroughness and scientific certainty not within the contemplation of Congress at the time it mandated the regulation of hazardous air pollutants.’” Sierra Club v. Johnson, 444 F. Supp. 2d at 56 (quoting Sierra Club v. 17 Gorsuch, 551 F. Supp. 785, 788-89 (N.D. Cal. 1982)). “Although in most circumstances the Court defers to agency expertise about appropriate rulemaking procedures, such deference is inappropriate where Congress has unambiguously expressed its intent that these regulations be promulgated by a date certain and the agency manifestly has failed to fulfill this statutory obligation.” Id. EPA’s past actions aside, what is most important is that EPA has failed to establish that it would be impossible to promulgate substantively adequate rules by January 21, 2011. As stated in Sierra Club v. Johnson, “courts evaluating claims of impossibility when an agency has failed to meet a mandatory deadline [established by Congress] generally have rejected claims that additional time is needed to ensure substantively adequate regulations.” Sierra Club v. Johnson, 444 F. Supp. 2d at 56 (citing Sierra Club v. Ruckelshaus, 602 F. Supp. 892, 899 (N.D. Cal. 1984); State v. Gorsuch, 554 F. Supp. at 1065). Although EPA urges the Court to “carefully consider the time needed for EPA to ensure that standards are not seriously flawed before final rules are issued,” Reply at 5, EPA itself has not actually asserted that its proposed rules are flawed or inadequate. Instead, EPA has simply expressed the concern that there is a risk these rules will be challenged. Mr. Tsirigotis states: “[T]here were a number of significant issues raised in the comments that may result in certain changes to the proposed rules that, [EPA] believe[s], could change the direction from the proposals sufficiently to make additional notice and comment advisable.” Tsirigotis Decl. ¶ 34 (emphasis added); see also Tsirigotis Suppl. Decl. ¶ 26 (The Office of Air and Radiation has “recommended changes” to the Administrator “that could significantly change the direction of the proposals . . . .”). These concerns, expressed 18 in conditional language, do not cast doubt on the conclusion that EPA will be able to promulgate substantively adequate rules by January 21, 2011. Finally, EPA suggests that because the rules at issue “affect almost 200,000 boilers and 176 CISWI units across the United States, and are complex and inter-related,” it is appropriate to avoid any risk of error. Mot. at 20. “On balance, given the broad impact these rules will have, EPA believes that the overall public interest is best served by allowing EPA to re-propose the rules so that the Agency will be able to issue emission standards that are based upon a thorough consideration of all available data and reduce potential litigation risks.” Id. at 14. EPA acknowledges that Section 307(d)(7)(B) “would provide an avenue for addressing some of the complications that have developed as these rulemakings have proceeded,” but contends that “[i]n these particular circumstances . . . reconsideration is not as effective as a re-proposal in addressing the problems presented.” Reply at 11; see Mot. at 20 (Although Section 307(d)(7)(B) “could provide a path for remedying some of the issues that are causing EPA to conclude that re- proposal is advisable, . . . . EPA does not believe it is the appropriate path to pursue here.”). The policy arguments EPA raises have no place in a case where Congress has mandated expedition, and its statutorily-mandated deadlines have long since passed. Unfortunately for EPA, the impossibility test is not concerned with whether — as a matter of policy — re-proposal will produce more effective rules and thus is preferable to reconsideration under Section 307(d)(7)(B). “It is emphatically not within an agency’s authority to set regulatory priorities that clearly conflict with those established by Congress.” Sierra Club v. Johnson, 444 F. Supp. 2d at 58. While EPA’s view on the importance of its rules and the preferable course of conduct may have merit, at this stage EPA’s (and intervenors’) “remedy lies with Congress, not 19 the courts.” Id. at 57. “‘[T]he [C]ourt’s role is to enforce the legislative will when called upon to do so.’” Id. at 54 (quoting State v. Gorsuch, 554 F. Supp. at 1062-63). Because EPA has not met its heavy burden of demonstrating that it would be impossible to promulgate substantively adequate regulations pursuant to paragraphs 1(i) and 3 of the Court’s March 31, 2006 Order by January 21, 2011, the Court denies EPA’s request for an extension of time until April 13, 2012 so that EPA can re-propose the Three Air Rules. C. The Procedural Concern — Responding to “Significant” Public Comments Under Section 307(d)(6)(B) of the Act, a promulgated rule “shall . . . be accompanied by a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period.” 42 U.S.C. § 7607(d)(6)(B). EPA thus presents to the Court an alternative request: “[S]hould the Court deny EPA time to re-propose” the emission standards for the Three Air Rules, “EPA requests that the deadline for completing its obligations under [p]aragraph 3 [and paragraph 1(i)] be extended until June 15, 2011, to allow the Agency time to fully respond to the 4,800 individual comments received in response to the proposals . . . .” Mot. at 4. EPA also requests that the Court extend the deadline for completing its obligations under paragraph 1(i) as to the SSI units rule to July 15, 2011, “so that EPA can fully respond” to the comments to that proposed rule. Id. As noted, EPA received over 4,800 individual comments concerning the proposed Three Air Rules. EPA explains that it is “concerned that it may not be able to adequately” respond to these comments by January 16, 2011 — now January 21, 2011. Mot. at 21. Mr. Tsirigotis’ declaration is more definitive: “The Agency cannot currently respond in full to all of 20 the significant comments submitted on the major source, area source, and CISWI proposed rules and prepare a final rule for the Administrator’s signature that is consistent with those comments by January 16, 2011.” Tsirigotis Decl. ¶ 40; see Tsirigotis Suppl. Decl. ¶ 25. Mr. Tsirigotis contends that an extension until June 15, 2011 will “enable the Agency to develop responses to all significant comments received and to prepare fuller and more defensible response to those comments, which would enhance the defensibility of the final standards.” Tsirigotis Decl. ¶ 40. With respect to the SSI unit rule, EPA received over eighty individual comments in response. Mot. at 22. EPA explains that the comment period closed on November 29, 2010, only forty-five days before the current deadline. Id. EPA expresses “serious concerns” whether the agency could fully respond to these comments — all of which EPA in its motion papers describes as “significant” — by January 21, 2011. See Mot. at 22. Again, Mr. Tsirigotis’ declaration is more definitive, though he expresses no such claim that all eighty comments are in fact significant: “The Agency cannot . . . currently respond in full to all of the significant comments submitted on the proposed sewage sludge incinerators by January 16, 2011.” Tsirigotis Decl. ¶ 48; see Tsirigotis Suppl. Decl. ¶ 32. EPA contends that an extension until July 15, 2011 would “ensure that it has fully responded to all significant comments . . . thereby improving the defensibility of the rule.” Mot. at 22; see Tsirigotis Decl. ¶ 49; Tsirigotis Suppl. Decl. ¶ 34. Plaintiff responds that Mr. Tsirigotis’ declaration “provides only the unexplained and unsupported assertion that the agency needs more time to complete its response to comments.” Opp. at 10. Plaintiff contends that Mr. Tsirigotis “does not say how much of the response to comments process is still unfinished and provides no reason to believe that process 21 cannot be completed by January 16.” Id. Plaintiff also points out that neither EPA nor Mr. Tsirigotis addresses the question of resource allocation — there is no discussion of how many employees or contractors are working on the responses or whether more could be deployed. Id. at 11. Then, describing EPA’s responses with respect to other rules and findings, plaintiff asserts that completing the comment process by the Court’s deadline is well within EPA’s capability. Id. at 11-12.5 Finally, plaintiff asserts that EPA has provided no information as to why it would take approximately five more months to respond to an undefined number of the 4,800 individual comments on the Three Air Rules that EPA considers “significant,” and six more months to respond to an undefined number of the eighty individual comments on the SSI unit rule that are “significant.” Id. at 12-13. In sum, plaintiff contends that EPA has failed to demonstrate that it is impossible for EPA to comply with the January 21, 2011 deadline. In Sierra Club v. Johnson, the Court stressed the importance of resource allocation and rejected EPA’s argument that “‘other mandatory obligations’ preclude its compliance with plaintiff’s proposed schedule.” Sierra Club v. Johnson, 444 F. Supp. 2d at 57. The Court stated that “[t]he will of Congress, as expressed in the Act, is that the promulgation of standards according to . . . mandatory deadlines should take precedence over all other rule-making that 5 For example, plaintiff notes that “EPA responded to more than 400,000 comments including approximately 19,000 individual comments on its greenhouse gases tailoring rule in four and one half months between the close of its comment period on December 28, 2009 and the signature of its final rule on May 13, 2010.” Opp. at 12. “Similarly, EPA responded to more than 380,000 comments including 11,000 individual comments on its greenhouse gases endangerment finding in a period of five and one half months between the close of the comment period on June 23, 2009 and promulgation on December 6, 2009.” Id. 22 EPA has not been expressly ordered to complete by Congress, as well as (arguably) over mandatory rulemaking for which the authorizing statute does not set a date certain.” Id. The same analysis necessarily must also apply to the less substantive responsibility of the agency to respond in writing to “significant comments.” Although “‘[a]n equity court can never exclude claims of inability to render absolute performance,’” such claims must be supported with facts and the Court “‘must scrutinize such claims carefully . . . .’” Id. at 53 (quoting NRDC v. Train, 510 F.2d at 713). Mr. Tsirigotis’ first declaration claims that EPA cannot respond in full to the comments on the Three Air Rules and the SSI unit rule by January 21, 2011 without providing any information concerning (1) what EPA has been doing since it received the comments; (2) how much of the response process is still unfinished; (3) how EPA has chosen to allocate its resources so as to attempt to comply with the court-ordered deadline; or (4) which of the 4,800 comments on the Three Air Rules or the eighty comments on the SSI unit rule genuinely are “significant.” See Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1167 (D.C. Cir. 1980) (noting that it “borders on the ludicrous” to suggest that all comments “rise to the level of a comment which required a response from the Administrator”). Although EPA and Mr. Tsirigotis assert that EPA has received over 4,800 individual comments in response to the Three Air Rules and over eighty comments in response to the SSI unit rule, there is no discussion whatsoever of how many of these comments EPA in fact considers “significant.” With respect to the 4,800 comments to the Three Air Rules, the Court finds EPA’s lack of discussion on the matter especially telling, given that EPA asserts that it has performed an “initial review of the significant comments.” See Mot. at 2; see also Tsirigotis Decl. ¶ 34 (“The Agency has spent considerable time reviewing the over 23 4,800 individual comments received . . . .”). By now, EPA surely must know how many are “significant” if the agency has been working as diligently as it says it has been. With respect to the eighty comments to the SSI unit rule, although EPA in its motion papers describes them all as significant, tellingly Mr. Tsirigotis, on penalty of perjury, makes no such claim. Compare Mot. at 2 (“EPA has serious concerns . . . as to whether it can fully respond to the over 80 significant comments . . . .”), with Tsirigotis Decl. ¶ 48 (“[W]e have received over 80 individual comments . . . . The Agency cannot, however, currently respond in full to all of the significant comments submitted . . . .”). Plaintiff pointed out some of these flaws in its opposition, and Mr. Tsirigotis then submitted a supplemental declaration in reply. This supplemental declaration still lacks specificity on the most crucial issues. Mr. Tsirigotis now states that, once the comment period closed, EPA “immediately began reviewing the comments and other information, including the data.” Tsirigotis Supp. Decl. ¶ 21. Mr. Tsirigotis provides more detail on the work left to be done and asserts that EPA “has been fully embroiled in the working on the final standards at issue in this matter since the close of the comment period.” Id. ¶¶ 24, 30-34. Both EPA and Mr. Tsirigotis remain silent, however, on whether EPA is acting with “the fullest use of [its] resources.” See NRDC v. Train, 510 F.2d at 712. And neither EPA nor Mr. Tsirigotis makes any attempt to segregate for the Court the significant comments from the insignificant. Finally, there is no discussion as to why EPA needs until June 15, 2011 to respond to the Three Air Rules comments that are significant and until July 15, 2011 to respond to the significant SSI unit rule comments. 24  While there is no support for EPA’s requests for extensions until June 15, 2011 and July 15, 2011, respectively, the Court has no reason to doubt Mr. Tsirigotis’ unequivocal statements that EPA “cannot currently respond in full to all of the significant comments” — however many there may be — to the Three Air Rules and the SSI unit rule by January 21, 2011. See Tsirigotis Decl. ¶¶ 40, 48. The Court therefore finds that there is no reasonable possibility that EPA will be able to comply with its mandatory duty under Section 307(d)(6)(B) of the Act to respond “to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period” by January 21, 2011. 42 U.S.C. § 7607(d)(6)(B). “Rather than order the defendant to do what is likely an impossibility,” Sierra Club v. Johnson, 444 F. Supp. 2d at 59, the Court therefore will extend slightly the deadline for EPA to respond to the significant comments regarding the Three Air Rules and the SSI unit rule. EPA has not justified its request for an extension until June 15 and July 15, 2011. Nor has EPA even attempted to show that a more expeditious schedule would be impossible. Indeed, EPA’s own papers make clear to the Court that its requested extensions would not reflect a schedule of “utmost diligence.”6 Accordingly, the Court rejects EPA’s proposed schedule and prescribes a more expeditious one. See Sierra Club v. Johnson, 444 F. Supp. 2d at 52-53. The January 21, 2011 deadlines in paragraphs 1(i) and 3 are extended to February 21, 2011. 6 In fact, some of the work contemplated appears duplicative: although EPA asserts that it has already performed an “initial review of the significant comments” to the Three Air Rules, Mot. at 2, Mr. Tsirigotis indicates that EPA is apparently planning on reviewing again “all of the 4,800 comments . . . to ensure that [EPA] ha[s] fully considered all of the issues,” Tsirigotis Supp. Decl. ¶ 30(a). 25  CONCLUSION For the foregoing reasons, defendant EPA’s motion to amend the Court’s March 31, 2006 Order [Dkt. No. 136] is DENIED in part and GRANTED in part. An Order consistent with this Opinion shall issue this same day. SO ORDERED. /s/ PAUL L. FRIEDMAN DATE: January 20, 2011 United States District Judge 26 

Case: 19-40454 Document: 00515216412 Page: 1 Date Filed: 11/27/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 27, 2019 No. 19-40454 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RONALD JOE CANNADY, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:18-CR-92-1 Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM: * The Federal Public Defender appointed to represent Ronald Joe Cannady has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Cannady has filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein, as well as Cannady’s response. We concur with counsel’s assessment that the 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: 19-40454 Document: 00515216412 Page: 2 Date Filed: 11/27/2019 No. 19-40454 presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2 

239 So.2d 545 (1970) Ex parte JIM DANDY COMPANY, a corporation. In re I. H. SUGERMAN v. The JIM DANDY COMPANY. 6 Div. 771. Supreme Court of Alabama. September 17, 1970. Hobart A. McWhorter, Jr., Warren B. Lightfoot, Birmingham, for petitioner. Lucien D. Gardner, Jr., Leigh M. Clark, Francis Hare, Birmingham, for respondent. COLEMAN, Justice. In this case, this court reviews an order of the circuit court, in equity, denying the respondent's motion to transfer from equity to law a proceeding which the complainant commenced by filing in the equity court a bill for declaratory decree and supplemental coercive relief. The bill was filed by I. H. Sugerman, a natural person, who will be referred to as the complainant. The bill is filed against a corporation formerly named Western Grain Company and now named The Jim Dandy Company. The corporation will be referred to as the respondent. The respondent filed its motion to transfer the suit to the law side, and the trial court denied the motion. Respondent applied to this court for rule nisi to be directed to the trial judge requiring him as *546 such judge, to vacate his order denying the motion and to grant the transfer to law, or, in the alternative, to appear and show cause why he should not vacate the order denying transfer and transfer the suit to the law side. This court issued the rule nisi. The trial judge filed demurrer and answer in this court and asserts various reasons why the cause should not be transferred to law. Counsel for the trial judge say in brief: ".... Consequently we will concede, for the purpose of this petition, that a respondent in equity is entitled to move to transfer to the law side of the court and to have the motion granted if the action is not one of equitable cognizance because the remedy at law is adequate....." In Ex parte Louisville & N. R. Co., 211 Ala. 531, 100 So. 843, this court held that mandamus would lie to review an order denying transfer of a cause from law to equity. The reason for the holding is stated as follows: "It would work injury to the defendant to require it to go through this trial and wait until after final judgment in the ejectment suit before presenting for review this ruling on its motion. The remedy by appeal after final judgment may be adequate to correct the error, but it is attended with injury to the defendant....." (211 Ala. at 532, 100 So. at 844) See Jones v. Wright, 220 Ala. 406, 125 So. 645, where the court said: "(4) For want of a remedy by appeal, mandamus in lieu of appeal is recognized as the appropriate remedy to review orders granting or denying the transfer or re-transfer of causes; and matter raised by demurrer going to the equity of the bill are reviewed as on appeal. (Citations Omitted)" (220 Ala. at 407, 125 So. at 646) For the reason above expressed, review by appeal from the final decree in the instant case would not be an adequate remedy for respondent and review by mandamus appears to be appropriate here. On the merits. In his bill, complainant avers that on August 1, 1966, he and respondent entered into a contract, for a term of approximately thirteen years, whereby complainant was employed by respondent ".... in an executive capacity, to have such duties and responsibilities and to do and perform such offices and functions in an executive capacity as Western (respondent) may determine." (Par. Added) The contract provides that complainant agrees to work full time for respondent and not to work for anyone else without respondent's consent during the term. Complainant's compensation is to be $70,000.00 per year plus deferred compensation to be credited, as stated in brief, at the rate of $22,000.00 per year. Complainant avers that at the time the contract was entered into, and thereafter until July 14, 1969, complainant was president and chief executive officer of the respondent corporation, and that it was understood and agreed by the contracting parties that, during the term of the contract, complainant was to be the chief executive officer of the corporation. Complainant avers that on July 14, 1969, the board of directors of respondent terminated his relation as chief executive officer and divested him of his position and duties as chief executive officer; that on September 2, 1969, and thereafter he has been assigned duties that are not in an executive capacity; that at the contract date and thereafter, respondent had its principal office, a factory, and an office building in Birmingham, Alabama, which was the only place for complainant to perform his duties under the contract; that to induce complainant to make his permanent residence in Birmingham, respondent agreed to lend complainant $131,000.00, without interest, *547 to assist him in acquiring a permanent residence there; that it was understood and agreed that his principal location for performance of his duties was to be Birmingham; that on August 20, 1969, respondent ordered him to report to offices at Savannah, Georgia, for regular performance of his duties under the contract and he reported to Savannah; that respondent removed him from the office of president and designated him as a vice-president; that he has been demoted from the highest echelon of duties to one of the lowest echelon of duties in the "official family" of respondent if he has any authority or is a member of said official family. Other grievances are alleged in the bill. We understand that complainant is continuing to perform the duties assigned to him and that respondent continues to pay him the agreed compensation. Complainant alleges that respondent has breached the contract; that a justiciable controversy exists; and that he is ready, willing, and able to perform the contract on his part according to its terms, and that it would constitute a breach of the contract for respondent to pay the total compensation thereunder in one sum at the present time and denies the right of respondent to do so. Complainant prays for relief as follows: ".... that upon final hearing the Court will ORDER, ADJUDGE, DECREE and DECLARE as follows: "(1) That respondent has breached said contract and complainant is entitled to all of the rights afforded him under said contract. "(2) That respondent be required to pay complainant the compensation and benefits under said contract over the period of years designated in the contract at the times provided for in the contract. "(3) That respondent be restrained and enjoined from directing or requiring complainant to perform services under said contract, in such a way as to constitute a breach of said contract as particularized alternatively in lettered subparagraphs of paragraph 3 hereof." Complainant prays also for general relief. In the petition for mandamus filed in this court by the respondent, it is alleged: ".... paragraphs numbered `(2)' and `(3)' of the prayer for relief... represent in truth and in fact a request for specific performance of a contract for personal service contrary to the provisions of Tit. 9, § 55, Ala.Code 1940 (Recompiled 1958)."[1] In his answer to the rule nisi, the trial judge takes issue with and "denies specifically" the allegation in the petition for mandamus that prayers (2) and (3) of the bill of complaint represent a request for specific performance of a contract for personal service. The trial judge states in his answer that: ".... neither prayer (2) nor prayer (3) of the prayer for relief represents a request for specific performance of a contract for personal service contrary to the provisions of Tit. 9, § 55...." An issue of law is thus presented whether prayers (2) and (3) of the bill are prayers for specific performance of a contract for personal service. By its terms, the contract provides that the complainant ".... is now employed by Western (the respondent) in an executive capacity .... to do and perform such offices and functions in an *548 executive capacity as Western may determine," (Par. Added) and that complainant ".... shall devote his full time and attention, knowledge and skill to such employment...." Surely this is a contract for personal service. Counsel for the trial judge do not appear to suggest that complainant's obligation under the contract is not "An obligation to render personal service" or that respondent's obligation is not "An obligation to employ another in personal service." Counsel do appear to contend that in prayers (2) and (3) complainant is not asking for specific performance of the contract. In brief, counsel say that: "The second prayer asks that Petitioner (the respondent) be required to pay Sugerman the compensation and benefits under the contract over the years at the times provided for in it....." (Par. Added) It seems to us that prayer (2) is a prayer for direct and express enforcement of respondent's obligation with respect to payment of compensation to its employee for his personal service under the contract. Counsel say further: "The third prayer does not, as claimed, seek specific performance of the contract of employment. It does not seek to enjoin Petitioner from terminating the contract. It merely prays that Petitioner be enjoined from requiring Sugerman to perform services in such a way as to constitute a breach of the contract, and is to be construed as relating to such time as the contract is in effect....." The contract contemplates that respondent shall direct or require complainant to perform duties and responsibilities in an executive capacity as respondent may determine. Prayer (3) seeks to enjoin respondent from directing or requiring complainant to perform duties contrary to the terms of the contract. What complainant seeks appears to be specific performance of respondent's agreement to assign complainant duties of an executive nature and to compel respondent to perform its agreement by enjoining respondent from not performing the agreement.[2] In a suit for injunction brought by a complainant who had been employed under a contract "`.... to be superintendent and take charge of the production of the factory.....'" of respondent, the trial court denied a temporary injunction and this court affirmed. This court said: ".... An injunction was prayed to restrain defendant from discharging complainant or interfering with his performance of his duties under the contract. The chancellor, judge of the circuit sitting in equity, sustained defendant's general demurrer, and denied complainant's prayer for a temporary injunction. The bill, in substance, is one to enforce specific performance of the contract alleged. ".... The fundamental trouble with appellant's case is that his contract is for the performance of continuous personal services on his part. Whether as superintendent, employee, or servant, his services are merely personal, no matter how dignified or responsible they may be, and the court of equity cannot undertake to enforce the performance of such services. The result is that the case presented discloses a lack of mutuality *549 of equitable remedy. If appellant were reinstated in his place, he might abandon his duties on the next day, and appellee would be remediless. The court of equity will not undertake to enforce such contracts at the instance of either party. (Citations Omitted)" Hewitt v. Magic City Furniture & Mfg. Co., 214 Ala. 265, 266, 107 So. 745. On appeal from decree granting a motion to dissolve an injunction enjoining breach of a contract to supply electricity for two years, this court affirmed and, among other things, said: "The bill is without a special prayer for the enforcement of the performance of the contract, the subject-matter of controversy, but the prayer for an injunction to be continued during the term of the contract, restraining the defendants from threatened breaches of the contract, is the equivalent of a prayer for specific performance, converting the bill, if not in form and letter, in substance and spirit, into a bill of that character. 1 Beach, Inj. § 443; Joy v. [City of] St. Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 843; Johnson v. S & B R. Co.; 3 DeG., Mc. & G. 914-922. An injunction in aid of specific performance is merely ancillary. The primary inquiry is, necessarily, whether the contract on which the bill is founded is of the nature and character of which the court is accustomed to decree specific performance. If it is not of this nature and character, or if for the injury of which complainant is made the law provides an adequate remedy, the bill fails, and the incidental or consequent remedy by injunction must fail. — 1 Beach, Inj., § 7; 2 High, Inj., § 1109, et seq. "........... "The general doctrine is that a court of equity will decree specific performance only when it can dispose of the matter in controversy by a decree capable of present performance. It will not decree a party to perform a continuous duty extending over a series of years, but will leave the aggrieved party to his remedies at law. (Citations Omitted)...." Electric Lighting Co. of Mobile v. Mobile & Spring Hill Railway Co., 109 Ala. 190, 193, 195, 19 So. 721. In reversing a decree which granted a temporary injunction in suit for specific performance of contract to accept all invoices for the output of a stave mill for a period of fifty-seven months; i. e., until a mortgage was paid; this court said: ".... For the reasons set out in the opinions in these cases, and especially those set out in Electric Light Co. v. Mobile & S. H. Ry. Co., supra, courts of equity, in cases like the present, refuse to assume jurisdiction to specifically enforce contracts, but remit the parties aggrieved to their actions for damages in courts of law. The enforcement of the rule in the instant case may result in a hardship to appellee; but the rule is as we have stated it to be, and appellee has his action at law for such damages as he may legally have suffered by reason of the breach of the contract. — Dimmick v. Stokes, 151 Ala. 150, 43 So. 854." Stewart v. White, 189 Ala. 192, 195, 66 So. 623. We are of opinion that, under the authorities cited, the supplemental coercive relief prayed for under prayers (2) and (3) is specific performance which equity cannot grant and is not available at law. Title 9, § 55, Code 1940. The preceding discussion raises the question whether a bill for declaratory relief may be maintained in equity where complainant prays for supplemental coercive relief which neither an equity court nor a law court has power to grant, such as specific enforcement of a contract for personal services which is the supplemental coercive relief prayed for in the bill here under consideration. To answer this question, it is necessary to distinguish between purely declaratory *550 relief; that is, a statement of the rights of the parties under the contract; and supplemental coercive relief.[3] Respondent says: "A declaratory judgment action is here appropriate, but only at law." .... This contention appears to mean that complainant may maintain a proceeding for declaratory relief but not in equity on the facts averred in the instant bill of complaint. Respondent quotes in argument in brief the statement of this court that the Declaratory Judgment Act (Title 7, § 156 et seq.), particularly § 156 and § 163, ".... contemplates the prosecution of suits in equity for coercive relief on equitable causes of action, and actions in the common law courts on legal causes of actions seeking coercive judgments. (Citation Omitted)." (Emphasis Supplied) Berman v. Wreck-A-Pair Bldg. Co., 236 Ala. 301, 304, 182 So. 54 ¶ [4]. The quoted statement was made in Berman in Case No. 6 Div. 287, which was an appeal from a decree overruling the demurrer of one respondent to a bill against two respondents. This court held the averments of the bill ".... sufficient to give the complainant an equitable cause of action, for discovery, accounting and relief, without regard to the Declaratory Judgment Act. (Citation Omitted)" (236 Ala. at 305, 182 So. at 57) This court held further, however, that the bill did not describe with certainty to a common intent what property had been taken by appellant and was too uncertain to invite joinder of issue. Consequently, the decree overruling the demurrer was reversed as to the appellant. In the instant case, in reply to respondent's argument based on the quotation from Berman, supra, counsel for the trial judge say in brief that respondent ".... claims (Proposition of Law No. 3) that the Declaratory Judgment Act `contemplates the prosecution of suits in Equity for equitable causes of action and the prosecution of suits in Law for legal causes of action,' and (Proposition of Law No. 4) in order to maintain a declaratory judgment in equity, `there must be independent grounds for equitable jurisdiction.' It quotes from Berman v. Wreck-A-Pair Building Company .... in support of Proposition No. 3, and it could have cited other cases to the same effect, all decided prior to the 1947 amendment of Section 167 of Title 7. As observed.... in Howle v. Alabama State Milk Control Board, 265 Ala. 189, 90 So.2d 752 (1956): "`Prior to 1947, our cases were in conflict as to whether or not the existence of another remedy precluded an action for a declaratory judgment. ".... "`Since the enactment of the 1947 amendment, this court has held that jurisdiction to grant relief under the Declaratory Judgments Act does not depend on the absence of another adequate remedy.'" Comparison of respondent's Proposition of Law No. 3 with the opinion in Berman discloses that, in Proposition of Law No. 3, respondent has omitted from the proposition the words "coercive relief on" and "seeking coercive judgments," which appear in the opinion. *551 As stated above, the difference between purely declaratory relief and supplemental coercive relief must be borne in mind. In Berman, this court, referring to § 1 and § 8 of the Declaratory Judgment Act, now § 156 and § 163, Title 7, had this to say: "`It should be kept in mind that the equity of a bill under the Declaratory Judgment Act does not turn on whether a case is made for an injunction. "`This is a statutory jurisdiction, to be exercised in the cases and to the ends defined by statute, does not depend on the absence of other remedies. It is alternate in character. One of its chief fields is to define legal rights, obligations, and relations over which real and substantial controversies have arisen before there has been an invasion of rights giving rise to other forms of action. * * * * * * "`Further relief may be had in such proceeding if necessary to complete relief. Gen.Acts 1935, p. 777, § 8.' "The court by these utterances, when considered in the light of the provisions of the Declaratory Judgment Act, found in § 1, dealing with `Scope' as follows: "`Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.' [Italics supplied.] "And § 8, `Supplemental Relief,' providing, that: "`Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith,' holds that in exercising the jurisdiction `to declare rights, status, and other legal relations' — in granting purely declaratory relief — the question of the absence or not of other adequate remedies is not material. But we do not construe this language to mean that the Declaratory Judgment Act had the effect to obliterate the distinction between proceedings in equity and actions at law in giving coercive relief. [Italics supplied]." (236 Ala. at 304, 182 So. at 56) In Berman, it appears that the court was saying that the effect of § 156 and § 163 is that purely declaratory relief may be granted in equity, although another adequate remedy exists at law; and also that the Declaratory Judgment Act does not abolish the distinction between law and equity with respect to supplemental coercive relief because § 163 requires that application for further relief shall be made "to a court having jurisdiction to grant the relief." In Berman, this court said "`This is a statutory jurisdiction, to be exercised in the cases and to the ends defined by statute, (and) does not depend on the absence of other remedies.....'" Such is the effect of the 1947 amendment to § 167. This court recently said: "Since the 1947 amendment, supra, the fact that some other adequate remedy at law exists to settle the controversy is not a defense in a declaratory action. (Citations Omitted)" Employers Ins. Co. of Alabama v. Cross, 284 Ala. 505, 508, 226 So.2d 161, 164. See also: Alexander City v. Continental Ins. Co., 262 Ala. 515, 80 So.2d 523; Greenley v. Bynum, 266 Ala. 584, 97 So.2d *552 893; Hane v. Bell, 270 Ala. 82, 116 So.2d 590; Rogers v. Lumbermans Mut. Cas. Co., 271 Ala. 348, 124 So.2d 70. Of the opinions cited and read in considering the instant case, as we understand them, no case holds that, because a declaratory proceeding is filed in the equity court, the equity court can grant relief which it cannot otherwise grant. On the other hand, none of those cases holds that a bill in equity for purely declaratory relief cannot be maintained in equity solely because the bill prays for relief which the equity court cannot grant. This court has said: ".... A bill is not demurrable because it prays too much....." Booth v. Bates, 215 Ala. 632, 635, 112 So. 209, 211. In affirming a decree overruling a demurrer to a bill to nullify certain deeds and transfers of personal property, this court said: "The bill undertakes to have the benefit of section 7429, Code, to the effect that separate estate of a widow shall be taken into account in awarding to her dower and distribution in her husband's property. The bill shows that decedent left both lands and personalty (assuming that the gifts to the widow are vacated), and therefore section 7429, supra, applies. Herring v. Elliott, 218 Ala. 203, 118 So. 391. This section when it applies is a limitation on the widow's distributive share under section 7374. But the fact that complainant prays for more than he is entitled does not render the bill subject to demurrer, when the facts alleged show that he is entitled at least to a part of the relief especially embraced in the prayer. Sims Chancery Practice § 287 et seq., 428; McDonnell v. Finch, 131 Ala. 85, 31 So. 594." Borton v. Borton, 221 Ala. 544, 546, 130 So. 67. See other cases cited in Ala. Digest, Equity. On the reasoning of the last cited cases, we hold that respondent is not entitled to transfer the instant cause to law on the ground that the bill prays for supplemental coercive relief which the equity court cannot grant, or on the ground that an adequate remedy is available at law. Although the equity court cannot grant the supplemental coercive relief prayed for, the equity court can grant the purely declaratory relief prayed for. In a case decided in 1936, the court said: "We cannot see that it is material whether the proceeding is begun on one docket or the other, so long as constitutional rights are preserved, including that of trial by jury. Such right does not include matters within the original jurisdiction of a court of equity, such as declaring disputed boundary lines. Yauger v. Taylor, 218 Ala. 235, 118 So. 271. "The act here in question does not limit the jurisdiction to the equity court, but confers it upon a court of record. The effect, as we have said, is to give the courts of law and equity concurrent jurisdiction, so long as other constitutional rights are preserved. "A case may arise under the act in which an action in common-law form is available against a defendant on account of an existing default, and in which defendant would be entitled to a jury trial. If proceeding for a declaratory judgment is begun in equity, and defendant wishes and demands a jury trial, pursuant to his right under the law or Constitution, the court could either transfer the cause to the law docket under section 6486, Code, or have a jury trial in equity under section 6631, Code, when the verdict would be as authoritative as at law, since it was a matter of right. Brintle v. Wood, 223 Ala. 472, 136 So. 803; Karter v. East, 220 Ala. 511, 125 So. 655; Hill v. Lindsey, supra [223 Ala. 550, 137 So. 395]. *553 "A proceeding for a declaratory judgment under such circumstances is not within the original jurisdiction of the chancery court, and cannot be used to deprive one of a jury trial secured by the Constitution. Miller v. Gaston, 212 Ala. 519, 103 So. 541. "This remedy is intended to be alternative, and not dependent upon an absence of other ordinary remedies, Borchard on Declaratory Judgments, pages 147, 148, provided in it constitutional rights are preserved." Tuscaloosa County v. Shamblin, 233 Ala. 6, 8, 169 So. 234, 236. We are of opinion that the peremptory writ of mandamus should be denied, but deem it proper to refer to a quotation from Borchard and four cases relied on by respondent. The statement in Borchard, Declaratory Judgments, 2nd Edition, 1941, at page 548, recites: ".... In many cases, such as breach of contract for special and personal services, with a covenant not to serve another, as in Lumley v. Gye (22 L.J.Q.B. 463 [1852]), a mandatory injunction or restraining injunction is not granted as a matter of policy, and a construction of the contract is therefore not obtainable in equity; but a declaratory judgment of the defendant's duty accomplishes most of the purpose desired by determining first whether there has been a breach or whether the excuse is unsustainable and, if so, putting the defendant on notice of the consequences......." Lumley v. Gye, supra, and the related case of Lumbley v. Wagner, 1 De.G.McN. & G. 604, were decided in 1852 and 1853. In Borchard, at page 129, something is stated of the history of declaratory procedure in England, to wit: ".... Where there was no `right' to consequential relief, no declaration would be made.19" The case cited at note 19 is: "Rooke v. Lord Kensington, 2 K. & J. 753, 760, 69 Eng.Rep.R. 986, 989 (1856)." It thus appears that by citing Lumley v. Gye, decided in 1852, in the statement at page 548, Borchard is saying that in times prior to the availability of declaratory procedure, a mere declaration of rights under a contract for personal service could not be made in equity because complainant could not show a right to consequential or coercive relief such as specific performance. At pages 129 and 130, Borchard, supra, it appears that declaratory relief, as it is now known, did not become generally available in England until after the Judicature Act of 1873 and adoption of Order XXV, Rule 5 of the Supreme Court Rules of 1883. As we understand him, Borchard is not saying that construction of a contract for personal service cannot now be made in a declaratory suit in equity. Borchard is not saying that equity can now grant specific performance of a contract for personal service. Neither is he saying that equity cannot declare rights under such a contract and at the same time refuse to grant specific performance of such a contract. On this interpretation, Borchard does not support respondent's contention that the equity court cannot grant purely declaratory relief in the instant case. Respondent relies on four cases to support the proposition that the 1947 amendment to § 167 does not change the rule that declaratory relief in equity is available only in matters of equitable cognizance. The first case is Moulton v. Langan, 285 Ala. 427, 233 So.2d 74, where the court held that a bill praying for declaratory relief and specific performance of a contract for personal service had no equity. The declaratory suit there had been filed subsequent to the filing of an action at law in which the subject matter of the action was a contract. The same contract was the subject matter of the subsequent declaratory suit in equity. The holding was that the declaratory suit could not supersede the prior action at law because all issues presented by the bill in equity for declaratory *554 relief could be determined in the pending law action. The court did not decide that the bill for declaratory relief could not be maintained in equity for purely declaratory relief if the prior action at law had not been pending. The court did decide that the subsequently filed bill in equity would not support a temporary injunction or a permanent injunction which would be the equivalent of a decree for specific performance. The second case, North American Co. for Life, Acc. & Health Ins. v. Bolling, 275 Ala. 457, 156 So.2d 144, is similar to Moulton. In Bolling, the appeal was from a decree overruling a motion to dissolve a temporary injunction enjoining breach of a contract for personal services. This court held that the bill would not support a temporary injunction. This court did not hold that the bill could not be maintained in equity for purely declaratory relief. The third case is Rinehart v. Reliance Life Ins. Co., 272 Ala. 93, 128 So.2d 503, wherein complainant, a taxpayer, sought to recover taxes it had paid under protest. This court said: "The remedy for refund of taxes illegally exacted of a taxpayer is prescribed by §§ 890 and 891, Title 51, Code 1940, as amended. "That remedy is at law. Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So.2d 13, decided in 1945. "......... "But the 1947 amendment, supra, does not operate to confer upon an equity court jurisdiction of subject matter which it had not possessed theretofore. Love v. Rennie, 254 Ala. 382, 48 So.2d 458; Wolff v. Woodruff, 258 Ala. 1, 61 So.2d 69. "Under the 1947 amendment the taxpayer can proceed in a declaratory judgment proceeding to have determined his rights to a refund of taxes paid under protest, but he must proceed in a court of law." (272 Ala. at 94, 128 So.2d at 505) §§ 890 and 891 conferred on the taxpayer a remedy that was not previously available to the taxpayer. In Glass, this court said: ".... We would not ... in any manner infringe upon the integrity of Art. 1, § 14, of our Constitution, but .... we merely hold .... that a common-sense construction of the Constitution upholds a statute of this character..... The question may be one not free from difficulty but we are not persuaded beyond a reasonable doubt of the invalidity of §§ 890 and 891, as amended." (246 Ala. at 586, 22 So.2d at 19) In reaching this result, the court observed that §§ 890 and 891 ".... constitute a remedy in the nature of a declaratory judgment," and "There is no judgment rendered against the State. .... It is in substance and effect the same as a declaratory judgment ...." The statute, §§ 890 and 891, conferred on the taxpayer a new and unusual remedy, not previously existing, to recover taxes illegally collected. The court held that in such a case the jurisdiction of the subject matter was conferred exclusively on a court of law and that the remedy could not be availed of in equity. The fourth case is Love v. Rennie, 254 Ala. 382, 48 So.2d 458, where complainants sought a declaration that a paper writing, which purported to be a will which had not been admitted to probate, was ineffective to devise or bequeath any property of the purported testator. This court held that the equity court had no jurisdiction of the subject matter and dismissed the bill. It is apparent that neither the circuit court in equity nor the circuit court at law had jurisdiction to construe an unprobated will and declare rights under such a writing. In the instant case, if the equity court does not have jurisdiction of the subject *555 matter, then the bill cannot be maintained in equity. The subject matter is a contract and the purely declaratory relief asked is to construe the contract and declare rights under the contract. Many cases granting a declaration of rights under various contracts have been entertained in equity since enactment of the Declaratory Judgment Act. § 157, Title 7, recites: "Any person interested under a.... contract .... may have determined any question of construction or validity arising under the... contract .... and obtain a declaration of rights, status, or other legal relations thereunder." Contracts for personal service are not excluded from the effect of § 157, Title 7. As to the purely declaratory relief here sought, we are of opinion that the equity court has jurisdiction of the subject matter, to wit, the contract, and can grant such declaratory relief. Tuscaloosa County v. Shamblin, supra. This court has held that: "The parties have a right to trial by jury of all issues of fact presented in declaratory judgment proceedings on the equity side if the same issues would be so triable when presented in common-law actions. (Citations Omitted)" Major v. Standard Accident Ins. Co., 272 Ala. 22, 24, 128 So.2d 105; Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254. No reason appears to show that the same rule does not apply here. Counsel for the trial judge ask that we limit our decision to the question whether complainant is entitled "to file his bill for a declaratory judgment on the equity side of the court." We decide that complainant is so entitled. It may appear that we have not limited this opinion as counsel request. If we have not done so, it is because candor requires that we apprise the parties, the bench, and the bar of the reasons for reaching this decision. Without the reasons stated we could not reach this result. Mandamus denied. LIVINGSTON, C. J., and SIMPSON, BLOODWORTH and McCALL, JJ., concur. NOTES [1] As here pertinent, § 55 recites: "§ 55..... The following obligations cannot be specifically enforced: "An obligation to render personal service. "An obligation to employ another in personal service. "..........." [2] With respect to a bill seeking injunction for a somewhat similar purpose, this court said: "What complainant seeks appears to be specific performance of respondents' agreement to permit complainant to market the products of the plant, and to accomplish that purpose in a negative way by prohibitive order. This is still specific performance....." Moulton v. Langan, 285 Ala. 427, 233 So.2d 74, 81, ¶ [4]. [3] § 163, Title 7, recites: "§ 163. Supplemental relief. — Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith." (Emphasis Supplied)

12 N.Y.3d 701 (2009) KLEINER v. COUNTY OF ORANGE. Court of Appeals of New York. Decided February 11, 2009. Motion for leave to appeal denied.

122 B.R. 96 (1990) In re Randall Lee BISHOP, Susan Kay Bishop, Debtors. Bankruptcy No. 89-02263-B13. United States Bankruptcy Court, E.D. Missouri, E.D. November 8, 1990. John C. Maxwell, St. Charles, Mo., for debtors. Steven LaBounty, Sp. Asst. U.S. Atty., St. Louis, Mo. John V. LaBarge, Jr., Trustee, Kirkwood, Mo. MEMORANDUM OPINION AND ORDER BARRY S. SCHERMER, Bankruptcy Judge. INTRODUCTION This matter is before the Court on the Debtors' Objection to the Claim of the Internal Revenue Service of the United States of America (hereinafter the "IRS"). The Court is called upon to determine whether the IRS may amend a claim filed on its behalf by the Debtors after the claims bar date. JURISDICTION This Court has jurisdiction over the subject matter of the proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. The parties have stipulated that this is a "core proceeding" which the Court may hear and enter appropriate judgments pursuant to 28 U.S.C. § 157(b)(2)(B). FACTS The relevant facts of this case are not in controversy. Within thirty days of the claims bar date the Chapter 13 Debtors filed a proof of claim on behalf of the IRS in the amount of $9,863.58, pursuant to Rule 3004. Within a few days thereafter, the IRS filed a proof of claim in the amount *97 of $14,750.03 which, the IRS asserts is an amendment to the claim filed by the Debtors. The Debtors then objected to the proof of claim filed by the IRS on the basis that such claim was filed out of time and, therefore, should be denied. The issue before the Court is whether the IRS may amend the proof of claim filed on its behalf by the Debtors pursuant to Rule 3004. DISCUSSION Based upon the memoranda submitted by the parties and in consideration of the record in this matter the Court concludes that Section 501 of the Bankruptcy Code, Bankruptcy Rule 3004 and the case of In re Kolstad, 101 B.R. 492 (Bankr.S.D.Texas 1989) all cited to the Court by the parties are controlling on the issue presented. Section 501(c) of the Bankruptcy Code provides that a Debtor may file a proof of claim on behalf of a creditor. Bankruptcy Rule 3004 establishes the time within which such a claim may be filed. This time period is thirty days after expiration of the time for filing claims prescribed by Rules 3002(c) or 3003(c) which ever is applicable. In Kolstad the IRS did not file a timely proof of claim. Pursuant to Section 501 the Debtor filed a proof of claim on behalf of the IRS. After the original time set for filing proofs of claim, the IRS attempted to amend the Debtors' proof of claim. Upon a filed objection, the Court held that such a filing was effective as an amended claim. The Debtors argue that Bankruptcy Rule 3002(c)(1) which permits the IRS to request an extension of time within which to file its claim suggests that the holding in Kolstad is inappropriate. The Debtors assert that since the IRS neglected to seek such an extension of time it should be denied the ability to amend the proof of claim filed on its behalf by the Debtors. The Court adopts the holding in Kolstad. In the case at bar since a portion of the scheduled debt was disputed a claim on behalf of the IRS had to be timely filed (by either the creditor or the debtor) or the scheduled debt would be binding upon the IRS. Since a timely proof of claim was filed by the Debtors on behalf of the IRS, ordinary rules of amendment to a proof of claim are applicable. Therefore, the claim may be amended by the IRS as it has done. The Debtors position that the IRS should be barred from amending the proof of claim filed on its behalf is not supported by any equities. The "amended" proof of claim falls squarely within the time, scope and nature of the original claim filed by the Debtors. Accordingly, it is ORDERED that Claim Number 16 of the United States of America, Internal Revenue Service be and is hereby determined to be a properly filed amendment to a timely proof of claim.

869 F.Supp. 533 (1994) CLARKLIFT OF NORTHWEST OHIO, INC., Plaintiff, v. CLARK EQUIPMENT COMPANY, et al., Defendants. CLARK CREDIT CORPORATION, Plaintiff, v. Leo STERKOWICZ, Defendant. Nos. 3:92 CV 7039, 92 CV 7255. United States District Court, N.D. Ohio, Western Division. November 15, 1994. William R. Lindsley, Lindsley & Karcher, Toledo, OH, Barry E. Savage, Savage, Jordan, Giha & Ballard, Toledo, OH, for Clarklift of Northwest Ohio, Inc., and Leo M. Sterkowicz. Gerald R. Kowalski, Manahan, Pietrykowski, Bamman & Delaney, Toledo, OH, Jonathan B. Newcomb, Jones, Day, Reavis & Pogue, Chicago, IL, Michael J. Grossman, Clark Material Handling Co., Lexington, KY, for Clark Equipment Co. Jonathan B. Newcomb, Thomas F. Gardner, Jones, Day, Reavis & Pogue, Chicago, IL, Michael J. Grossman, Clark Material Handling Co., Lexington, KY, for Clark Material Handling Co. *534 Dennis W. Bila, II, L. Graham Ward, Brochert & Ward, Bloomfield Hills, MI, John W. Oldham, Farmington Hills, MI, for Clarklift of Detroit, Inc. Thomas P. Whelley, II, Chernesky, Heyman & Kress, Dayton, OH, for Miami Industrial Trucks, Inc. Thomas W. Heintschel, Frederickson & Heintschel, Toledo, OH, for Clark Credit Corp. Barry F. Hudgin, Schnorf, Schnorf & Ballard, Toledo, OH, for James L. Schueler. JUDGMENT ENTRY KATZ, District Judge. For the reasons stated in the Memorandum Opinion filed contemporaneously with this entry, IT IS HEREBY ORDERED, ADJUDGED and DECREED that attorney fees are not recoverable by plaintiff/counterclaimant Clark Credit Corporation. Therefore, partial summary judgment is granted on that issue to defendant Leo Sterkowicz in Case No. 92 CV 7255, and to counterclaim defendant Clarklift of Northwest Ohio in Case No. 92 CV 7039. IT IS SO ORDERED. MEMORANDUM OPINION KATZ, District Judge. Pending before this Court is the issue of whether attorney fees incurred during the default and foreclosure process are recoverable in this action. Clarklift of Northwest Ohio, Inc. ("Clarklift") moved for summary judgment on this issue (Doc. No. 86), Clark Credit Corporation ("Clark Credit") opposed such motion, and Clarklift filed a reply.[1] The parties have filed their supplemental briefs addressing this issue (Doc. Nos. 108 and 109). I. PROCEDURAL HISTORY In January of 1992, before the instant case was filed, Clarklift brought suit (Case No. 3:92 CV 7039) against Clark Equipment Company ("Clark Equipment"), Clark Credit ("Clark Credit") and others, alleging violations of the Sherman Act. In that case, Clark Credit filed an answer and counterclaim to Clarklift's Complaint. The counterclaim alleged a default on certain loan agreements between Clarklift and Clark Credit, and asked for possession of certain equipment upon which Clark Credit claimed a security interest, for injunctive relief, for declaratory judgment, for monetary judgment, and for pre-judgment attachment and appointment of a receiver. In essence, Clark Credit claimed that Clarklift was in default pursuant to paragraph seven of the Security Agreement between Clark Credit and Clarklift, and claimed relief under paragraph eight of the Security Agreement. Clarklift filed a reply essentially denying the allegations of Clark Credit's counterclaim. On May 6, 1992, Clark Credit brought the instant case (Case No. 3:92 CV 7255) against Leo Sterkowicz and James Schueler, both of whom were asserted to be guarantors of the loan agreements between Clark Credit and Clarklift. Upon motion of Clark Credit, the Court, on September 18, 1992, ordered that the counter-claim regarding Clark Credit's allegations of default contained in the Anti-Trust Case be consolidated with the Sterkowicz Case. Thus, Clark Credit's counterclaim in Case No. 92 CV 7039 is now consolidated with the instant case. Clark Credit has dismissed its action against Schueler, leaving Clarklift and Sterkowicz as the only remaining defendants from whom Clark Credit seeks judgment. Clark Credit has been granted summary judgment on the following issues: (1) Clarklift defaulted under the terms of the Security Agreement and that Clark Credit was entitled to exercise its rights as a secured creditor pursuant to Ohio law and the Security Agreements at issue; (2) Clark Credit's retaking of the collateral and disposition of such collateral was lawful and does not constitute conversion, *535 and that the attachment bond posted should be released; and (3) that Sterkowicz is liable for any deficiency realized by Clark Credit after the disposition of the collateral pursuant to the terms of the guaranty executed by Sterkowicz. Additionally, summary judgment was granted to Clark Credit on Clarklift's counterclaim for conversion. When making the above rulings, this Court withheld ruling as to whether attorney fees are recoverable in this case because Clark Credit had not yet briefed the issue. II. FACTUAL BACKGROUND Clark Credit financed new and used lift material handling equipment that was sold or leased by Clarklift. Clarklift had a dealer agreement with Clark Equipment. The financing arrangement between Clark Credit and Clarklift was pursuant to two separate Security Agreements, the first of which was executed on October 10, 1980, and the second on June 22, 1989. The material provisions of the 1980 and 1989 Security Agreements are identical. Section 10.4 of both agreements provides as follows: 10.4 Applicable Law — The Agreement is entered into and all loans and other extension of credit are granted in the City of Buchanan, State of Michigan and this Agreement shall be construed in accordance with and governed by the laws of the State of Michigan. On January 17, 1992, Clark Credit notified Clarklift and Sterkowicz that Clarklift was in default on the Security Agreement, and that, unless the default was cured by 5:00 p.m. on January 23, 1992, the entire amount of the indebtedness, liabilities and obligations outstanding under the Security Agreement would be automatically accelerated and become immediately due and payable without further notice or demand. On January 18, 1992, Clark Credit made a written demand upon Sterkowicz pursuant to the guaranty, demanding that he satisfy the debt pursuant to his guaranty. On January 21, 1992 Clarklift filed Case No. 92 CV 7255. Clark Credit took possession of the assets of Clarklift and liquidated them. The liquidation was completed by September 21, 1992. The issue remaining to be decided is whether Clark Credit can recover the attorney fees it incurred in the default and liquidation process. The question is complicated by the fact that, while the agreements at issue provide that Michigan law is to be applied, Clark Credit proceeded under Ohio law in effectuating their remedies under the Security Agreement. Moreover, although Michigan law holds that attorney fees are recoverable in default situations, Ohio law reaches the opposite conclusion. III. LAW AND DISCUSSION The rule in Ohio regarding the recoverability of attorney fees upon default in payment of a debt was stated in Miller v. Kyle, 85 Ohio St. 186, 97 N.E. 372 (1911). The Ohio Supreme Court stated: It is the settled law of this state that stipulations incorporated in promissory notes for the payment of attorney fees, if the principal and interest be not paid at maturity, are contrary to public policy and void. Id. at syllabus ¶ 1. The Miller v. Kyle holding, quoted above, retains strength to this day. CIT Group/Equipment Fin., Inc. v. New GIFL, Inc., 823 F.Supp. 479, 484 (N.D.Ohio 1993). The Ohio Supreme Court recently stated that [w]hen a stipulation to pay attorney fees is incorporated into an ordinary contract, lease, note or other debt instrument, it is ordinarily included by the creditor or a similar party to whom the debt is owed and is in the sole interest of such party. In the event of a breach or other default on the underlying obligation, the stipulation to pay attorney fees operates as a penalty to the defaulting party and encourages litigation to establish either a breach of the agreement or a default on the obligation. In those circumstances, the promise to pay counsel fees is not arrived at through free and understanding negotiation.... Our decision today leaves undisturbed our holding in Miller v. Kyle, supra, and like cases. *536 Worth v. Aetna Casualty & Surety Co., 32 Ohio St.3d 238, 242, 513 N.E.2d 253 (1987). It is clear, therefore, that, under Ohio law, attorney fees in the instant cases would not be recoverable.[2] The parties agree, however, that Michigan law permits the recovery of attorney fees as damages where a contract provides that they are recoverable. See, e.g., Central Transport, Inc. v. Fruehauf Corp., 139 Mich.App. 536, 362 N.W.2d 823 (Mich. App.1984); Security Trust Co. v. Solomon, 241 Mich. 52, 216 N.W. 405 (1927). Therefore, as the parties expressly contracted that Michigan law apply, as is permitted under the Ohio Uniform Commercial Code, Ohio Rev.Code § 1301.05, attorney fees would appear to be recoverable in this action. However, for two reasons, this Court finds that this is not the case. A. The Parties Relied Entirely Upon Ohio Law In The Foreclosure Proceedings Clarklift argues that Clark Credit has failed at any time in this case to plead its case under Michigan law, and has instead brought this action in Ohio, and utilized Ohio law in all relevant respects. Clark Credit has filed motions for replevin, possession, liquidation of collateral and summary judgment all based on Ohio law. Plaintiff argues that this is an admission by Clark Credit that Ohio law applies and that Clark Credit should be precluded from recovering any damages under Michigan law regardless of what law the contract says is applicable. Clarklift argues that Clark Credit waived its right to proceed under Michigan law. Clark Credit counters that it did not intentionally relinquish its right to proceed under Michigan law. To find a waiver, Clark Credit maintains, there must be an intentional relinquishment of a known right. White Co. v. Canton Transp. Co., 131 Ohio St. 190, 198, 2 N.E.2d 501 (1936). The party relying upon a waiver must prove, by a preponderance of the evidence, a clear, unequivocal decisive act of the party against whom the waiver is asserted. Id. at 198-99, 2 N.E.2d 501. This Court finds Clark Credit's arguments unconvincing. Clark Credit had the opportunity when it filed this action to advise the Court that the security agreement upon which it was foreclosing was controlled by Michigan law. Instead, plaintiff proceeded to ask for relief solely and exclusively under the Ohio replevin and related statutes. By proceeding under Ohio law for so long, this Court finds that Clark Credit effectively waived its right the contract provision providing that Michigan law applies. Accord Tennant Co. v. Martin's Landscaping, Inc., 40 Conn.Supp. 475, 515 A.2d 665 (1986) (Written agreement entered into between the parties contained a choice of law provision providing that it be governed by Minnesota law, but because both parties premised their arguments in their memoranda on Connecticut case law, the court deemed that the parties effectively waived the choice of law provision); Touche Ross, Ltd. v. Filipek, 7 Haw.App. 473, 778 P.2d 721 (1989) (Parties to mortgage loan agreement effectively waived choice of law provision in loan documents calling for application of Canadian law by relying on Hawaii statutes and case law in memoranda of law submitted to lower court in foreclosure action and in their appellate briefs on appeal.) B. The Recovery of Attorney Fees In The Instant Case Is Repugnant To Ohio Public Policy Ohio law provides that: *537 The law of the state chosen by the parties to govern their contractual rights and duties will be applied unless either the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or application of the law of the chosen state would be contrary to the fundamental policy, of a state having a greater material interest in the issue than the chosen state and such state would be the state of the applicable law in the absence of a choice by the parties. Schulke Radio Productions, Ltd. v. Midwestern Broadcasting Co., 6 Ohio St.3d 436, 453 N.E.2d 683 (1983). Thus, the first requirement is that the chosen state must have a substantial relationship to the parties or the transaction, or that there must be some reasonable basis for the parties' choice. This requirement is met in the case at hand. It is clear that the State of Michigan has a substantial relationship to both the parties and to the transaction. The second requirement is that the law of the chosen state must not violate the fundamental policy of the state that (1) has a greater material interest in the determination of the issue, and (2) is the state whose law would be applied in the absence of a choice by the parties. That is, in the instant case, the law of Michigan must not violate the public policy of Ohio if Ohio has a materially greater interest than Michigan in this matter. This Court finds that Ohio has a materially greater interest in this case because Clarklift's place of business is in Ohio; all the assets were located in Ohio; Clark Credit filed security interests on all of the assets of Clarklift in Lucas and Allen Counties in the State of Ohio; and Clark Credit was doing business in the State of Ohio. Michigan's only connections to this case are the fact that the plaintiff is incorporated in the State of Michigan and the contract was deemed to be entered in that state. It is firmly established in Ohio, as discussed above, that the recovery of attorney fees cases involving promissory notes is against public policy of the State of Ohio. Consequently, this Court will not enforce the choice of law provision as it relates to attorney fees. Ohio law applies, and, under Ohio law, attorney fees are not recoverable in the instant action. IV. CONCLUSION For the reasons set forth herein, this Court finds that attorney fees are not recoverable in this case. Therefore, partial summary judgment is granted on that issue to defendant Leo Sterkowicz in Case No. 92 CV 7255, and to counterclaim defendant Clarklift of Northwest Ohio in Case No. 92 CV 7039. IT IS SO ORDERED. NOTES [1] There were several other issues in the motion for summary judgment, and this Court granted summary judgment to Clark Credit on the remainder of the motions for summary judgment. The Court held its ruling on attorney fees in abeyance pending the filing of supplemental briefs on the issue. [2] This holding is not affected by the Ohio Supreme Court's decision in Nottingdale Homeowners' Ass'n v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (1987). The Court in Nottingdale upheld an agreement of a condominium owner to pay the attorney fees of the condominium association upon the default by the owner in the payment of his condominium fees. However, the Court stated: "[Miller v. Kyle] is factually a far cry from the case now before us which involves a specific contractual provision that was assented to in a non-commercial setting by competent parties with equal bargaining positions and under neither compulsion or duress. Therefore, Miller, ..., provides no support for appellees' position that contracts providing for the payment of attorney fees in a non-commercial setting are unenforceable."

673 F.2d 1313 Marksv.Clutter 81-6344, 81-6345 UNITED STATES COURT OF APPEALS Fourth Circuit 1/25/82 1 N.D.W.Va. AFFIRMED EXCEPT AS MODIFIED--REMANDED

114 Cal.App.3d 304 (1981) 170 Cal. Rptr. 591 LOCKHEED ELECTRONICS COMPANY, INC., Plaintiff and Respondent, v. KERONIX, INC., Defendant and Appellant. Docket No. 57308. Court of Appeals of California, Second District, Division Four. January 6, 1981. *306 COUNSEL Henry C. Hopkins and Douglas D. Roccaforte for Defendant and Appellant. Iverson, Yoakum, Papiano & Hatch and John A. Slezak for Plaintiff and Respondent. OPINION KINGSLEY, J. Plaintiff and respondent Lockheed Electronics Company (LEC) sued defendant and appellant Keronix, Inc., for breach of *307 contract. Lockheed and Keronix were merchants within the meaning of section 2104 of the California version of the Uniform Commercial Code.[1] On February 15, 1974, Keronix issued to LEC its purchase order No. 04963 for certain computer cores to be delivered at the rate of 5 million cores per week starting at the completion of Keronix's then pending purchase order No. 04298. The purchase order from Keronix included on its face the following statement: "VENDOR-NOTE Instructions on Face and Reverse side apply to this order." On the reverse side of the purchase order are preprinted about 20 terms and conditions and the page is titled "Purchase Order-Terms and Conditions." These terms and conditions included a warranty as well as a statement "this order expressly limits acceptance to the terms" of the order. On February 18 LEC mailed Keronix a "quotation" referring to Keronix's purchase order No. 04963 stating the quantity, price and delivery rate. The quotation stated that it was submitted to Keronix subject to LEC's terms and conditions that are printed on the reverse side of the quotation. Keronix received LEC's quotation. LEC mailed Keronix a letter on February 25, 1974, acknowledging Keronix's purchase order No. 04963, stating that LEC's purchase order No. 04963 was accepted, and that standard Lockheed terms and conditions applied as on prior orders. The letter was accompanied by an acknowledgement copy of the Keronix purchase order No. 04963, signed by a representative of LEC. Purchase order No. 04963 was the last in a series of 10 orders for cores. Keronix originally purchased these cores in 1971, and in this first order, and LEC's quotation stated that LEC's conditions applied. When Keronix placed its first order, LEC responded, "Your order is acceptable to Lockheed in accordance with the terms and conditions of our referred quotation." LEC acknowledged each of Keronix's subsequent *308 orders, including purchase order No. 04963, by a written letter which accepted the purchase order and informed Keronix that LEC's terms and conditions would apply. Keronix never objected to these written statements in LEC's acceptance form. However, the same purchase order form as used by Keronix in order No. 04963 had been used by Keronix in each of its prior dealings with LEC. Each prior order by Keronix included their own terms and conditions on the reverse side, including the term that expressly limits acceptance to the terms of Keronix's order. Keronix received delivery on order No. 04963 and on May 8 or 7, 1974, Keronix informed LEC that no further shipments on this order were to be made and to put a hold on the order. Keronix did not mention any defects, but said that they were experiencing component supply problems. In fact, Keronix needed fewer cores and had an inexpensive supply of other cores. It was not until about four months later that Keronix informed LEC that they would not be using any low drive cores, and Keronix did not mention that the cores were defective. In a phone call on October 28, 1974, there was no mention of defects and the parties discussed a termination claim. On October 28, 1974, LEC sent a letter entitled, "Subject: Termination claim and requested payment." On November 4, 1974, Keronix refused by letter to make payment and stated nothing about defects. Keronix stated that Keronix's terms and conditions applied to the purchase order and that paragraph 7 states that, "Buyer reserves the right to cancel on written notice this purchase order." On November 19, LEC sent Keronix a letter stating that the parties had a prior course of dealing making LEC's conditions applicable. In a phone call of December 10, 1974, Keronix's controller never mentioned any defects in the cores. Keronix's employee, C. Kiss, claimed he complained of mechanical defects to LEC. However, Keresztury, an employee of Keronix, said he did not remember if the conversation had any specifics concerning defects. LEC's employee testified that if there had been any defects they could have cured the problem by immediate replacement, but LEC was never informed that there were any defects. *309 As of May 1974, Keronix was LEC's only customer for this type of computer core and, as a practical matter, no other market was available to LEC. Plaintiff Lockheed sued for damages for breach of contract. LEC filed a motion in limine to "Preclude Keronix from Relying on Unstated Electrical Defects to Justify Its Rejection at Trial." Judgment was for plaintiff LEC for $73,778.14 plus interest and costs. Appellant contends that the trial court erred in concluding that LEC's terms and conditions applied, and that, under section 2207, the trial court should have applied the terms and conditions in Keronix's purchase order No. 04963. Appellant also contends that the trial court erred in granting plaintiff's motion in limine, in that subsections (a) and (b) of section 2605, subdivision (1) does not preclude Keronix from presenting evidence on the defects in the cores.[2] I (1) Defendant's first argument is that the trial court erred in concluding that the terms and conditions of the contract were those of plaintiff and not those contained in defendant's purchase order No. 04963. Both parties agree that the case at bench is governed by the California version of the Uniform Commercial Code, in that the parties are "Merchants under Sect. 2104(1) of that code and the `cores' are `goods' as defined in Section 2105(1) of that code." Appellant argues that, when the case is governed by that code and the offer and acceptance differ in its terms and conditions, the difference is to be resolved by section 2207. Section 2207 reads as follows: "(1) A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. *310 "(2) The additional terms are to be construed as proposals for addition to the contract. Between merchants such terms become part of the contract unless: "(a) The offer expressly limits acceptance to the terms of the offer; "(b) They materially alter it; or "(c) Notification of objection to them has already been given or is given within a reasonable time after notice of them is received. "(3) Conduct by both parties which recognizes the existence of a contract is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. In such case the terms of the particular contract consist of those terms on which the writings of the parties agree, together with any supplementary terms incorporated under any other provisions of this code." In the case at bench, "the offer [by Keronix] expressly limits the acceptance to the terms of the offer" and therefore, under subdivision (2)(a) of section 2207, the purported additional terms in LEC's acceptance do not become part of the contract. This express limitation by Keronix of LEC's acceptance to the terms of Keronix's offer can be found in the part of Keronix's purchase order called the "Purchase Order Terms and Conditions," which is located on the reverse side of Keronix's purchase order in a paragraph entitled: "1. The Contract Acceptance — Changes and Waiver." On the front of Keronix's purchase order there is a statement that "Instructions on the Reverse Side apply to the Order," drawing attention to Keronix's terms and conditions and the limitations therein. Paragraph 1 of Keronix's purchase order's terms and conditions reads as follows: "The contract between SELLER and BUYER is embodied in the terms and conditions of this Purchase Order, together with any supplemental documents, specifications, drawings, notes, instructions, engineers notices or technical data referred to herein, BUYER shall not be bound by this order or the contract unless, and until SELLER executes and returns the acknowledgment copy of this order, and no other form of acceptance shall be binding on BUYER. SELLER. accepts and shall be bound by the terms of the contract when it executes and *311 returns the acknowledgment copy or by commencing performance hereunder. This order expressly limits acceptance to the terms stated herein, and any additional or different terms proposed by the SELLER are rejected unless expressly assented to in writing by BUYER. No contract shall exist except as herein provided. The contract sets forth the entire understanding of the parties with respect to the subject matters hereof, and is intended as a complete and exclusive statement of the terms of the agreement between the parties. No waiver or modification of any provision of the contract shall arise or be valid unless made in writing, duly executed by BUYER's properly designated representative, and waiver of any default shall not waive subsequent defaults. Time is of the essence in SELLERS obligations under the contract. Any provisions herein for the delivery of items or the rendering of services by installments, shall not be construed as making the obligations of SELLER severable." (Italics added.) Thus, under the above express terms of Keronix's offer, that order expressly limits acceptance to the terms stated therein, and the additional or different terms proposed by the seller were rejected because they were not expressly assented to in writing by the buyer. And, since Keronix's offer expressly limits acceptance to the terms of the offer, under section 2207, subdivision (2)(a) the additional terms by LEC did not become part of the contract between the parties. The holding of the Steiner court in Steiner v. Mobil Oil Corp. (1977) 20 Cal.3d 90, 94 [141 Cal. Rptr. 157, 569 P.2d 751] is consistent with our holding. The Steiner court held that, under section 2207, subdivision (2), "if the terms of the offer and acceptance differ, the terms of the offer become part of a contract between merchants if the offer expressly limits acceptance to its own terms, or if the varying terms of the acceptance materially alter the terms of the offer." We hold that under Steiner and section 2207, subdivision (2)(a), Keronix's terms and conditions and not LEC's apply. Section 2207, subdivision (1) is determinative here. Since LEC's acceptance was not "expressly made conditional on assent to additional or different terms," under subdivision (1) of section 2207, LEC's acceptance operated as an acceptance to the contract even though LEC's acceptance stated terms different from Keronix's offer. Writings exchanged between the parties do not create a contract where acceptance of a purchase order is expressly conditioned on assent to additional *312 terms contained in the acceptance (see Uniroyal, Inc. v. Chambers Gasket & Mfg. Co. (Ind. App. 1978) 380 N.E.2d 571) but here LEC's acceptance was not expressly conditional on an assent to additional terms in LEC's acceptance. Therefore, there was a valid acceptance by LEC. In summary, by applying subdivision (1) of section 2207, we have before us an offer and an acceptance, even though LEC's acceptance states different terms than Keronix's offer; and, by applying subdivision (2)(a) of section 2207, Keronix's terms and conditions apply, and LEC's terms and conditions in their acceptance are of no effect. LEC argues that, because of a prior course of conduct, LEC's conditions apply and not Keronix's conditions. LEC points out that their acceptance stated "the Standard Lockheed terms and conditions of sale apply, as on prior orders," and that all prior acceptances by them included LEC's terms and conditions. LEC argues that these statements in their acceptance constitute a prior course of conduct or of prior performance. LEC relies on sections 1-205(1) and (3) and 2-208(1) of the Commercial Code to support the proposition that a prior course of dealing and prior course of performance of the parties to a contract is relevant to determine the meaning of the agreement. While LEC is certainly correct that a prior course of dealing and performance is relevant in determining the meaning of a contract, there is nothing about the prior course of conduct or prior performance here that would negate the effects of section 2207 and Keronix's limitations of their offer to their own terms. Although LEC repeated in writing in their acceptances that their own terms and conditions applied, and they argue this behavior constituted a relevant "prior course of dealing," Keronix also repeated in each prior order or offer that their offer expressly limited acceptance to the terms of their offer, and therefore Keronix could equally argue that their terms and conditions constituted a "prior course of dealing." Thus, while a prior course of dealing is clearly relevant, nothing about those prior dealings of the parties herein negated the effect of section 2207, subdivision (2)(a). Plaintiff has cited to us no place in the record, nor have they stated any facts even without citation to the records relating to the prior conduct of the parties, that shows that LEC's terms and conditions actually *313 applied to the parties' dealings and performance. LEC's mere written attempt to substitute their own terms and conditions for Keronix's by virtue of a written statement in their acceptance to that effect, is insufficient to establish a course of conduct and to negate the effects of section 2207. Plaintiff relies on Baumgold Brothers, Inc. v. Allan M. Fox Company, East (N.D.Ohio 1973) 375 F. Supp. 807 for the proposition that, if a purportedly new term appearing in the acceptance is consistent with a prior course of dealing between the parties, the term does not represent an alteration of the offer and it becomes part of it. Baumgold is of no help to LEC. As we have said above, plaintiff LEC has not shown this court how their terms and conditions were utilized in prior performances or were utilized in prior courses of dealings. LEC argues that (a) Keronix "acquiesced" in their conditions and (b) Keronix never objected to them. Although acquiescence is relevant in determining the meaning of the agreement (§ 2208, subd. (1)) Keronix never acquiesced to those conditions. Under section 2207, subdivisions (1) and (2) the offeror has control over the offer, and mere nonobjection is not acquiescence, since no objection is required. Although the court was correct that defendant never objected to LEC's attempts to substitute their terms and conditions in the contract, the language of section 2207 does not require that the offeror make such an objection. Section 2207, subdivision (2)(a) resolves the contest between the offeror and offeree in favor of the offeror. II (2) Thus, since Keronix's terms and conditions applied, under the terms of Keronix's purchase order terms and conditions, appellant would have been entitled to raise the issue of breach of warranty. However, for reasons we will explain below, Keronix is barred by section 2605 from relying on unstated defects in the cores that were delivered. And since Keronix may not rely on unstated defects, it follows that Keronix is unable to raise the issue of breach of warranty which would be based on those defects. Plaintiff's motion in limine (based on § 2605, subd. (1)), which sought to preclude defendant from introducing any evidence of electrical defects in the cores at trial was properly granted. *314 Section 2605 reads as follows: "(1) The buyer's failure to state in connection with rejection a particular defect which is ascertainable by reasonable inspection precludes him from relying on the unstated defect to justify rejection or to establish breach. "(a) Where the seller could have cured it if stated seasonably; or "(b) Between merchants when the seller has after rejection made a request in writing for a full and final written statement of all defects on which the buyer proposes to rely. "(2) Payment against documents made without reservation of rights precludes recovery of the payment for defects apparent on the face of the documents." Appellant argues, and we agree, that section 2605, subdivision (1)(b) was not satisfied because there was no request "in writing" for a full and final statement of all defects on which the buyer proposed to rely. None of the letters relied on by respondent constitute such a written request within the meaning of section 2605, subdivision (1)(b). It has been held that where the buyer sent a detailed letter of termination and does not mention defects as a reason, failure to particularize defects acts as a waiver of a right to claim a breach for defective goods. (Koppers Co., Inc. v. Brunswick Corporation (1973) 224 Pa.Super. 250 [303 A.2d 32].) However, section 2605, subdivision (1)(a) did bar Keronix from relying on defects since plaintiff could have remedied the defects if they had been put on notice of them. Section 2605, subdivision (1)(a) bars the buyer from relying on an unstated defect ascertainable by reasonable inspection where the seller could have cured it. In the case at bar defects could have been ascertained from inspection, the seller could have sent other cores, and Keronix is precluded from relying on the unstated defects to justify their breach by their failure to point out the defects (mechanical or electrical) to LEC.[3] Since Keronix cannot rely on unstated defects (§ 2605), they are unable to rely on their terms and conditions relating to breach of warranty *315 to justify their breach, and we have before this court a case where the buyer (Keronix) has in effect cancelled its contract without cause or justification. Keronix's terms and conditions, though applicable, are of no avail to Keronix, insofar as Keronix is relying on their terms and conditions requiring warranties of fitness and merchantability. III (3) However, Keronix's terms and conditions also provide for calculation of the seller's damages where the buyer has cancelled without cause and it is that section of Keronix's terms and conditions that is relevant here. Since Keronix cannot rely on a breach of warranty (due to their failure to inform LEC of defects), their breach is unjustified, and Keronix's terms and conditions dealing with unjustified breach, become the applicable terms and conditions. Keronix's terms and conditions state that damage of the seller upon buyer's cancellation without cause shall be calculated pursuant to Armed Services Procurement Regulations (ASPR) section 8-706. Thus, we have at bar a case involving such a cancellation without cause with damages to be calculated by ASPR section 8-706. The pertinent paragraphs of the regulation read as follows: "[T]he buyer shall pay to the seller ... for completed supplies or services accepted by the buyer ... and not therefore paid for, forthwith a sum equivalent to the aggregate price for such supplies or services computed in accordance with the price or prices specified in the contract." (ASPR § 8-706(e)(i).) "The buyer shall pay to the seller ... the total of (A) the cost of such work, including initial costs and preparatory expenses allocable thereto ... and ... (C) a sum, as profit on (A) above ... to be fair and reasonable." (ASPR § 8-706(e)(iii)(A)(C).) "[I]f the termination hereunder be partial, the seller may file with the buyer a claim for an equitable adjustment in the price or prices specified in the contract for the work in connection with the continued portion not terminated by the notice of termination, and an appropriate equitable adjustment shall be made in price or prices." (Italics in original.) (ASPR § 8-706(g).) *316 We agree with the trial court that, under these terms and conditions, LEC is entitled to damages and Keronix must pay for those cores delivered or ready for delivery prior to cancellation. However, under these terms and conditions LEC is not entitled to anticipated profits on the unperformed portion of the contract. The record before us does not permit a calculation of the amount of damages to which we find LEC to be entitled. The case must be remanded for that limited purpose. The judgment is reversed and the case is remanded to the trial court for the limited purpose of calculating respondent's damages in conformity with this opinion. Neither party shall recover costs in this court. Files, P.J., and McClosky, J., concurred. A petition for a rehearing was denied January 22, 1981. NOTES [1] Unless otherwise indicated, all statutory citations herein are to the California Uniform Commercial Code. [2] Keronix here wishes to rely on paragraph 10 of its terms and conditions in its purchase order. This paragraph provides for warranties of merchantability and fitness. [3] Keronix attempts to distinguish their right to rely on mechanical defects from their right to rely on electrical defects. There is evidence from which the trial court can conclude that Keronix never informed LEC of either type of defect.

651 F.Supp. 1421 (1986) AL TECH SPECIALTY STEEL CORP., et al., Plaintiffs, v. The UNITED STATES, Defendant. Court No. 84-08-01192. United States Court of International Trade. December 1, 1986. *1422 Collier, Shannon, Rill & Scott, David A. Hartquist, Paul C. Rosenthal, Jeffrey S. Beckington, Washington, D.C., for plaintiffs. Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Platte B. Moring, III, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant. OPINION RESTANI, Judge: Plaintiffs contest the results on remand to the International Trade Administration of the Department of Commerce (Commerce) of an early determination of antidumping duties imposed on entries of tool steel produced by Arbed Saarstahl GmbH (Saarstahl), a West German manufacturer.[1]*1423 Specifically, plaintiffs challenge Commerce's decision not to include subsidies in cost of production and constructed value calculations made pursuant to section 736(c) of the Tariff Act of 1930 as amended (Act). 19 U.S.C. § 1673e(c) (1982). On July 25, 1984, Commerce published the final results of its accelerated review of Saarstahl's entries of tool steel between January 12 and July 19, 1983. 49 Fed.Reg. 29,995 (1984). In that determination, Commerce refused to add the amount of subsidies received by Saarstahl to the company's expenses in calculating cost of production and constructed value.[2] Plaintiffs commenced an action to challenge those results and Commerce consented to a remand order on the subsidies issue. On remand, Commerce responded to additional comments on the subsidies issue and again concluded that subsidies should be excluded from its calculations.[3] Commerce concluded that the costs recorded in Saarstahl's books fairly represented the costs of producing the products. 51 Fed.Reg. at 10,072. Plaintiffs then filed the Renewed Motion for Judgment Upon an Agency Record that is presently before this court. Under the Act, dumping margins are measured by calculating the amount by which foreign market value (FMV) exceeds the United States price (USP) of imported merchandise. 19 U.S.C. § 1673 (1982 & Supp. II 1984). The methods by which FMV and USP are determined are specifically provided for in the Act. 19 U.S.C. §§ 1677b (FMV), 1677a (USP). Where, as here, merchandise identical or similar to the imported merchandise is sold or offered in the home market of the country of exportation, FMV is calculated pursuant to section 773(a) of the Act by resort to domestic prices, with certain specified adjustments. 19 U.S.C. § 1677b(a)(1)(A) (1982 & Supp. II 1984). Section 773(b) provides, however, that home market sales "made over an extended period of time and in substantial quantities ... [that] are not at prices which permit recovery of all costs within a reasonable period of time in the normal course of trade, shall be disregarded in the determination of foreign market value." 19 U.S.C. § 1677b (1982) (emphasis added). This section further provides that [W]henever sales are disregarded by virtue of having been made at less than the cost of production and remaining sales, made at not less than cost of production, are determined to be inadequate as a basis for the determination of foreign market value [through home market sales], the administering authority shall employ the constructed value of the merchandise to determine its foreign market value. Id. (emphasis added). Commerce concluded, in its accelerated review and on remand, that Saarstahl's home market sales were not less than the cost of production, and thus apparently calculated FMV through constructed value only where there were no contemporaneous home market sales for comparison with USP. 51 Fed.Reg. at 10071; 19 U.S.C. § 1677b(a)(2) (1982). The elements of constructed value used by Commerce are defined in section 773 of the Tariff Act as (A) the cost of materials (exclusive of any internal tax applicable in the country of exportation directly to such materials or their disposition, but remitted or refunded upon the exportation of the article in the production of which such materials are used) and of fabrication or other processing of any kind employed in producing such or similar merchandise, at a time preceding the date of exportation of the merchandise under consideration which would ordinarily permit the production of that particular merchandise in the ordinary course of business; *1424 (B) an amount for general expenses and profit equal to that usually reflected in sales of merchandise of the same general class or kind as the merchandise under consideration which are made by producers in the country of exportation, in the usual commercial quantities and in the ordinary course of trade, except that— (i) the amount for general expenses shall not be less than 10 percent of the cost as defined in subparagraph (A), and (ii) the amount for profit shall not be less than 8 percent of the sum of such general expenses and cost; and (C) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the merchandise under consideration in condition, packed ready for shipment to the United States. 19 U.S.C. § 1677b(e)(1) (1982 & Supp. II 1984). Plaintiffs argue that sections 773(b) and (e) require that costs be calculated by adding subsidies benefiting production in Commerce's determinations of cost of production and constructed value, respectively. Plaintiffs base their claim on the language of sections 773(b) and (e), relevant legislative history, judicial precedent and administrative practice. Defendant urges that these same sources support Commerce's conclusion that cost of production and constructed value should be calculated by using actual costs, rather than such theoretical costs. I. Scope of Review Initially, the parties disagree about the amount of deference that this court should give to Commerce's remand determination. Although the parties agree that the proper standard of review is essentially one of reasonableness, they disagree about the level of scrutiny that the term "reasonable" requires. Plaintiffs argue that the issue involved in this case is essentially one of law, over which the agency has no discernible expertise. They contend that this court, as the ultimate arbiter of statutory construction, should conduct a searching inquiry into the propriety of defendant's interpretation. Chevron, U.S.A., Inc. v. National Resource Defense Council, 437 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). The defendant argues that its experience in regulating the antidumping act entitles it to special deference. Zenith Radio Corp. v. United States, 437 U.S. 443, 450-451, 98 S.Ct. 2441, 2445-46, 57 L.Ed.2d 337 (1978). Under defendant's proposed standard of review, any reasonable agency interpretation would be upheld by this court. Chevron, 467 U.S. at 845, 104 S.Ct. at 2783. It is well established that the Secretary of Commerce has broad discretion in executing the antidumping laws. Smith Corona Group v. United States, 713 F.2d 1568, 1570 (Fed.Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). Thus, agency interpretations in this area will normally be upheld if they are reasonable and do not contravene the plain language or purpose of the statute. This deference, however, should in no way be construed as a rubber stamp for the government's interpretation of statutory provisions. In the case at bar, there are convincing reasons to approach the government's determination with a heightened sense of scrutiny. Commerce has itself admitted that judicial precedent on the issue of subsidies is inconsistent. Furthermore, there has been no consistent administrative practice with respect to adding or subtracting subsidies from cost of production and constructed value calculations. Commerce's interpretation of section 773 was adopted only as a consequence of this action; thus, there has been no protracted reliance by the government or by private parties on the new policy regarding subsidies. In a recent case, this court addressed the issue of judicial deference to agency interpretations and concluded: The extent or degree to which the Court should defer to the agency is dependent upon a number of factors. As the Supreme Court explained in a leading case, *1425 We consider that the rulings, interpretations and opinions of the [administrative official], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). Ceramica Regiomontana v. United States, 10 CIT ___, 636 F.Supp. 961 (1986). In light of these standards, this court must perform a searching inquiry of Commerce's position to determine its reasonableness in light of the language of section 773 and its underlying legislative purpose. II. Legislative History It is an established principle of jurisprudence that where a statute's meaning is clear, that meaning will be controlling, even if relevant legislative history suggests another plausible interpretation. Tennessee-Valley Authority v. Hill, 437 U.S. 153, 173, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117 (1978). Utilizing this principle, plaintiffs initially argue that Commerce's remand determination is contrary to law because it misconstrues the "unambiguous meaning" of sections 773(b) and (e). Specifically, plaintiffs contend that the language of these provisions referring to cost of production and constructed value must be interpreted to mean a producer's objective costs, including the costs covered by subsidies, rather than the subjective costs, as reflected in the companies' books and records.[4] Although the language cited by plaintiffs clearly requires Commerce to consider a product's cost of production, it does not make clear whose costs are to be considered. Plaintiffs' argument merely begs the question of whether Commerce is required to consider subjective or objective costs. Both parties have also supported their interpretations of section 773 by citing consistent related provisions in the antidumping statute. Plaintiffs argue that the appearance of statutory minima for profit and general expense calculations in section 773(e) demonstrates that Congress intended all cost terms to be defined objectively. Defendant points to 19 U.S.C. § 1677(16)(B)(i) (1982), which defines "such or similar merchandise" as "[m]erchandise produced in the same country and by the same person as the merchandise which is the subject of the investigation." Defendant argues that the statute's reference to the same producer demonstrates that costs were intended to be subjective. These provisions do not address specifically the issue of subsidization, nor are they helpful in ascertaining which costs section 773 was intended to encompass. Since the terms of the statute are ambiguous, a discussion of relevant legislative history, case law, and administrative precedent is in order. Both parties have cited a substantial body of legislative history to support their interpretations of sections 773(b) and (e). Yet, the vast majority of this material supports the parties' contentions only with the aid of strained reasoning.[5] *1426 The most persuasive legislative history referred to by plaintiffs concerns the policies underlying the amendment of section 321(d) (the predecessor to section 773(b)) in the Trade Act of 1974. The 1974 Act expanded the definition of dumping to include certain situations in which producers sell goods at a price below the cost of production in their domestic markets as well as abroad. Plaintiffs argue that businesses who sell below cost both at home and abroad generally survive only with the aid of government subsidies; thus, the 1974 amendments, in order to be effective, must have been enacted to permit the calculation of all objective costs. This claim is supported by evidence showing that, prior to the enactment of the 1974 Act, Congress was apprised of a case in which a subsidized producer of paper-making machinery was selling below cost at home and abroad, but no dumping finding was made. See Trade Reform: Hearings on H.R. 6767 Before the House Ways & Means Committee, 93d Cong., 1st Sess. 3083 (1973) (statement of Eugene L. Stewart). Plaintiffs contend that Congressional dissatisfaction with this case served as the primary impetus for the amendment. It is important to note that the testimony about the case referred to above was not received during the hearings on the 1974 Act; nor do the House or Senate reports on the 1974 Act mention the case, or a comparable justification for the amendment of section 321. Considering the relative paucity of legislative history cited by plaintiffs, and its tenuous connection to the actual history of the 1974 Act, the defendant's interpretation of the Act cannot be viewed as unreasonable solely in light of this history. III. Judicial Precedent In its remand results, Commerce concluded that judicial precedent in the antidumping area on the subsidies issue was divided and that Customs valuation cases were not proper authority for determining which costs should be factored in to calculate cost of production. Plaintiffs contend that defendant's interpretation of section 773 is unreasonable in light of all judicial precedent, and that Customs valuation cases do offer appropriate support for adding subsidies in cost of production and constructed value calculations. Plaintiffs rely on two antidumping cases: Connors Steel Co. v. United States, 2 CIT 242, 527 F.Supp. 350 (1981) and J.H. Cottman & Co. v. United States, 20 CCPA 344, cert. denied, 289 U.S. 750, 53 S.Ct. 695, 77 L.Ed. 1495 (1932). In Connors Steel, this court rejected the plaintiff's argument that subsidization necessarily meant that a manufacturer's home market sales were below the cost of production. 527 F.Supp. at 358. However, in dictum, the court stated that "if the actual calculation of cost of production is reached, the relevant subsidies cannot be ignored." Id. Plaintiffs rely on this statement to support their argument that subsidies are to be treated as a component of cost of production. It is difficult to view this statement as providing strong support for plaintiffs' position. In Connors Steel, this court was addressing an entirely different issue, the sufficiency of evidence necessary to require an investigation into a producer's cost of production. Furthermore, the language cited by plaintiffs does not specify how the court would treat subsidies in calculating cost of production.[6] The Cottman case provides stronger support for the plaintiffs' position. In Cottman, the Court of Customs and Patent Appeals held that a materials cost for phosphate rock must be included in cost of production where the manufacturer was the Moroccan government, which had obtained *1427 the raw materials at no cost. The majority wrote, "[f]oreign-market value, in our opinion, as defined in this statute was intended by Congress to mean such conditions as exist in a free, open, unrestricted market, where people meet under normal competitive conditions to buy and sell their goods." 20 CCPA at 357. Plaintiffs analogize the Moroccan government's free distribution of phosphate rock to the government subsidies received by Saarstahl in the case at bar. Plaintiffs argue that only by including these subsidies in cost of production can Commerce comply with the Cottman court's policy of simulating free market conditions. The support garnered by plaintiffs from the Cottman case is undermined by the Court of Customs and Patent Appeals decision in European Trading Co. v. United States, 27 CCPA 289 (1940), involving an antidumping order on entries of wire fish trap netting imported from Germany. The German seller of wire rods used to make the netting gave export rebates to the netting manufacturer, which were included by Treasury in calculating the cost of production of the wire. The CCPA disagreed with the government and held that the rebated amount should not be added into the cost of production. The court stated that the "foreign value" of the rods was not at issue, but rather the actual cost of production, as defined in the antidumping act. The court drew strong distinctions between the remedies available under the countervailing duty law and the remedies available under the antidumping law at issue. Cottman should be given limited application for other reasons, as well. The Cottman court was faced with a situation which was difficult to deal with under prior law. As far as phosphate rock was concerned, Morocco acted as a non-market economy country. Prior antidumping law was not geared to such economies. Today, antidumping surrogate country provisions are applicable in non-market economy cases. See Chemical Products Corporation v. United States, 10 CIT ___, 650 F.Supp. 178 (1986). Such provisions first appeared in the Trade Act of 1974. Trade Act of 1974, Pub. Law 93-618, § 321, 88 Stat. 2047 (1975). In market economy cases, countervailing duty remedies would now be available.[7] The legal, factual, and economic context of Cottman distinguishes it from this case. Plaintiffs argue further that their position is supported by a customs valuation case in which cost of production was calculated on the basis of objective costs. Ford Motor Co. v. United States, 29 Cust.Ct. 553 (1952) (pattern equipment made by U.S. importer is properly added into cost of production of rough iron castings manufactured in and exported from Canada). In addition, see Ravenna Mosaics v. United States, 49 Treas.Dec. 699, T.D. 41503 (1926) (cost of preparing design sketches, which was paid by U.S. importer, was properly added into cost of production of mosaics exported to the U.S.). These cases do not specifically address the issue of government subsidies, however, nor is it clear that customs valuation cases should always define "cost of production" as it is used in antidumping law. Citing a Senate report, plaintiffs argue that the term "cost of production" was changed to "constructed value" in the 1958 Trade Act in order to facilitate conformity between customs and trade cases. S.Rep. No. 1619, 85th Cong., 2d Sess. (1958), reprinted in 1958 U.S.Code Cong. & Ad. News 3499, 3505. Yet, this report merely announces that the term "constructed value" will be used in both areas of law; it does not associate the use of the term with a common policy of ascertaining objective value in all cases. Since the passage of the 1958 Act, Commerce has often refused to follow Customs valuation precedents where to do so would impede the specific policies of the antidumping law. See, e.g., Television *1428 Receiving Sets, Monochrome and Color, From Japan; Final Results of Administrative Review of Antidumping Finding, 46 Fed.Reg. 30163 (1981) (stating that judicial decisions interpreting the phrase "freely offered" in the context of customs laws are irrelevant to interpreting the antidumping law). Furthermore, one recent case demonstrates both the differing legal contexts in which these words must be applied and a somewhat subjective approach to calculating cost of production. In M & M Mars Snackmaster v. United States, 7 CIT 249, 587 F.Supp. 1075 (1984), this court held that for tariff purposes export rebates received after the time of manufacture should not be deducted from "cost of materials," but neither should they be added as additional profits, in calculating cost of production. The implication is that if the rebates had been received earlier they would have been deducted from the cost of materials figure. The court also noted the countervailing duty issue which was not before it. The judicial precedents cited by plaintiffs have failed to demonstrate that defendant's interpretation of sections 773(b) and (e) is unreasonable under existing case law. IV. Administrative Practice Plaintiffs contend that past administrative practice mandates the inclusion of subsidies in cost of production and constructed value calculations. Specifically, plaintiffs cite two Commerce determinations in Shop Towels of Cotton from The People's Republic of China, 48 Fed.Reg. 37,055 (1983); 50 Fed.Reg. 26,020 (1985). In these antidumping cases Commerce looked to a surrogate country, Pakistan, to calculate foreign market value because China was found to possess a state-controlled-economy. Commerce concluded that Pakistan was an improper surrogate because its exports were subject to countervailing duty orders. 50 Fed.Reg. at 26,023. Although the Shop Towels proceedings involved the interpretation of section 773(c), regarding state-controlled-economies, plaintiffs argue that the principle underlying these determinations is applicable to the case at bar. They contend that sections 773(c) and 773(b) were enacted concurrently to provide a reliable benchmark for foreign market value calculations. Since Commerce has concluded that potential surrogate economies are inappropriate for comparison purposes if they utilize subsidization, plaintiffs argue that subsidies must also be considered in section 773(b) calculations in order to achieve a consistent policy. It is not clear why the practices governing the selection of surrogate economies should control the calculation of cost of production under section 773(b). Plaintiffs correctly note that under both provisions the failure to account for subsidies could lower the dumping margins calculated by Commerce. The failure to factor in subsidies, however, presents an irremediable problem only in state-controlled economy cases. Because there is no way to compensate for the selection of a defective measuring rod under the statute, it is essential to select surrogate economies unaffected by subsidization. Cf. Chemical Products v. United States, 10 CIT ___, 650 F.Supp. 178 (1986). It is not necessary to consider subsidies in section 773(b) cost of production calculations, however, because the effects of subsidization can be addressed in a countervailing duty proceeding. The proper scope of the antidumping remedy, and not an overriding policy of calculating objective costs, defines the parameters of section 773(b). Defendant has cited several administrative rulings in the antidumping area in which it actually subtracted production costs absorbed by foreign governments in the form of grants. Preliminary Determinations of Sales at Not Less Than Fair Value: Certain Steel Products from the Netherlands, 47 Fed.Reg. 35664 (1982) (production costs absorbed by the government in the form of grants subtracted to calculate cost of production in order to avoid possible double counting of subsidies in concurrent antidumping and countervailing *1429 duty investigations); Red Raspberries from Canada; Final Determination of Sales at Less Than Fair Value, 50 Fed. Reg. 19,768 (1985) (income from the Canadian government's Farm Insurance Income Program found unrelated to cost of production; wage rebate benefits subtracted as offsets to cost since such benefits were attributable directly to raspberry production). See also, Certain Steel I-Beams from Belgium, Antidumping Determination of Sales at Not Less Than Fair Value, 44 Fed.Reg. 54,579 (1979) (stating that to the extent a producer's production or sales are subsidized, its cost of production may be lessened). In its brief, the defendant acknowledges that it is no longer Commerce's practice to deduct government subsidies from reported costs in calculating cost of production. In any case, the approach in these proceedings differs from the position taken here, that of reliance on the producers' costs as reflected in properly maintained books and records.[8] Thus, past administrative practice in antidumping cases supports neither side. V. The Relationship between Antidumping and Countervailing Duty Law The sources discussed thus far, even if viewed in toto, are not clearly dispositive of the issues involved in this case. To further substantiate their interpretations of section 773, the parties have presented additional practical considerations regarding the implementation of the antidumping statute. These arguments more clearly illustrate the propriety of defendant's interpretation. Plaintiffs argue that the antidumping law cannot possibly operate properly if subsidies are ignored in the calculation of foreign market value. In the case of Saarstahl, plaintiffs estimate that loans and grants have resulted in a subsidy impact of 11 percent of the value of sales. Plaintiffs further contend that Commerce's interpretation of section 773 has allowed Saarstahl to evade antidumping penalties simply by utilizing favorable accounting procedures. Plaintiffs argue that if all foreign manufacturers are allowed to record subsidies as reduced acquisitions costs, rather than business receipts, the application of the antidumping law will be significantly curtailed.[9] These arguments do not address the real question at issue: what is the scope of the antidumping law. Congress did not enact the antidumping statute to address all forms of interference in the international marketplace. Antidumping law seeks to counteract the comparative advantage held by foreign manufacturers who pursue inconsistent pricing policies in the international market in order to maximize their overall income. (Note that the domestic subsidies at issue presumably have the same result in both home and foreign markets.) The antidumping remedy protects domestic industry from imported merchandise sold at less than fair value, which imports either have caused or threaten to cause material injury. Badger-Powhatan, Div. of Figgie Intern., Inc. v. United *1430 States, 9 CIT ___, 608 F.Supp. 653, 656-57 (1985). Countervailing duty law, in contrast, was enacted specifically to address the market distortions caused by subsidization. Zenith Radio Corp. v. United States, 437 U.S. 443, 455-56, 98 S.Ct. 2441, 2447-48, 57 L.Ed.2d 337 (1978). It is important to note that the amount of subsidies received by foreign manufacturers is not necessarily related to their disparate pricing practices at home and abroad. Subsidies can be applied to operations of an enterprise that do not have a direct impact on pricing, and prices can be raised or lowered regardless of the effects of subsidization. Thus, even if the impact of Saarstahl's subsidies was substantial and it avoided penalties solely through the election of favorable accounting procedures, plaintiffs' claim is still more properly addressed by countervailing duty law. Defendant has persuasively argued that plaintiffs' reading of section 773 improperly blurs the distinction between antidumping and countervailing duty law. This court and its appellate court have long recognized the dangers of allowing these two areas of law to be commingled. See supra discussion of judicial precedent. In a recent case this court stated, [T]here are further reasons the court and the ITA should refrain from making a subsidy determination in the context of a dumping investigation. The determination of whether a countervailable subsidy exists is a complex one and Congress has provided a separate set of guidelines for the inquiry. In a dumping investigation the ITA is not seeking the same information or asking the same questions it would in a countervailing duty investigation. For this Court to disallow an adjustment to third country price because the import duty rebate is allegedly a countervailable subsidy would be to bypass the countervailing duty statute and essentially penalize the Taiwanese exporters without allowing them an opportunity at the agency level to have a full hearing on whether the rebates are a subsidy. Huffy Corp. v. United States, 10 CIT ___, 632 F.Supp. 50, 55-56 (1986). Essentially, plaintiffs attack Saarstahl's accounting adjustment to fixed costs merely because the adjustment is based on subsidies. If plaintiffs' interpretation of section 773 prevailed in this case, Commerce would be allowed to counteract subsidization without undertaking any of the procedural protections contained in the countervailing duty statute. Under countervailing duty law a subsidy may result in the imposition of duties only if it falls within the term "subsidy" as defined in 19 U.S.C. § 1677(5) (1982). Furthermore, some government grants, such as those which are generally available, are not countervailable. But see, Cabot Corporation v. United States, 9 CIT ___, 620 F.Supp. 722 (1985), appeal dismissed on other grounds, 788 F.2d 1539 (Fed.Cir.1986). Plaintiffs' interpretation of section 773 dispenses with these inquiries and threatens to create a new body of law with different criteria for identifying and valuing subsidies. Benefits that were previously not countervailable could be attacked under new antidumping rules, thus creating substantial uncertainty among exporters. Utilizing producers' records of cost of production, kept in accordance with generally accepted local accounting procedures, which procedures reasonably reflect fixed and variable costs, allows Commerce to administer the antidumping laws without undertaking an unauthorized countervailing duty investigation. For these reasons, this court cannot conclude that the defendant's construction of section 773 is unreasonable. NOTES [1] These remand results were published in the Federal Register on March 24, 1986. 51 Fed. Reg. 10,071 (1986). [2] The subsidies alleged to benefit Saarstahl's tool steel production include interest-free loans and funds for restructuring. [3] Commerce's remand determination also corrected alleged errors in its calculations and thereby increased Saarstahl's weighted-average dumping margin for the period under review from 8.09 percent ad valorem to 19.13 percent ad valorem. 51 Fed.Reg. at 10,072. Saarstahl is challenging that determination in a separate action before this court. Court No. 86-04-00469. [4] Section (b) requires the administrative authority to determine whether sales have been made "at less than the cost of producing the merchandise". Section (e) requires the calculation of constructed value based on the costs "which would ordinarily permit the production of that particular merchandise in the ordinary course of business." [5] For example, plaintiffs cite two passages in the legislative history to show that Congress intended cost of production and constructed value to be based on the manufacturer's objective costs: a House of Representatives Report stating that section 773(b) was meant to cover the "cost of producing such merchandise" and "variable and fixed costs," and an earlier Senate report which declared that constructed value was not meant to be limited to the "actual cost of the imported merchandise." H.R.Rep. No. 571, 93d Cong., 1st Sess. 71 (1973); S.Rep. 16, 67th Cong., 1st Sess. 13 (1921). These scattered snippets in the history, especially an unexplained quote from the history of the prior law, do not clarify whether all objective costs or only the manufacturer's costs were intended to be covered. [6] In dictum, the Connors Steel court agreed with Commerce's position that, "if anything, subsidization would lessen the cost of production" (emphasis added). In the context of the entire case, it is not clear what result this implies. [7] Apparently because phosphate was not subject to regular duties, additional countervailing duties could not be imposed under the law in existence at the time of Cottman. Tariff Act of 1922, ch. 356, title 3, § 303, 42 Stat. 935. [8] A House of Representatives report on the Trade Act of 1974 stated that, in calculating the cost of production, the Secretary will employ "accounting procedures generally accepted in the home market of exportation if he is satisfied that such principles reasonably reflect the variable and fixed costs of producing the merchandise." H.R.Rep. No. 571, 93d Cong., 1st Sess. 71 (1973). [9] Plaintiffs note that under the accounting laws of some nations, including West Germany, government grants may be treated as business receipts or used to reduce the cost of acquisition of a purchased asset. Plaintiffs contend that where grants are treated as business receipts in company records, the accounting entries on which cost of production is based reflect the actual economic cost of production. Where grants are used to reduce the cost of acquisition of a purchased asset, however, plaintiffs argue that cost of production calculations can be distorted as follows. The cost of producing a commodity will turn, in part, on the spent value (i.e., depreciation) of capital that is used to produce the item. If Commerce calculates depreciation based on the cost of acquisition as reduced by subsidization, the amount of depreciation assigned to cost of production in a given period will not reflect the true value of capital consumed.

466 F.2d 1226 Alvin H. FRANKEL, Guardian of the Estate of Marilyn Heym, anincompetentv.Mary HEYMv.UNITED STATES of America (Third-Party Defendant).Alvin H. Frankel, Guardian of the Estate of Marilyn Heym, anincompetent and Herbert Heym, Appellants in No. 71-1349.Alvin H. FRANKEL, Guardian of the Estate of Marilyn Heym, anincompetentv.Mary HEYMv.UNITED STATES of America, (Third-Party Defendant), Appellantin No.71-1350.Alvin H. FRANKEL, Guardian of the Estate of Marilyn Heym, anincompetent, and Herbert Heym, Appellants in No.71-1351, and Mary Heym, his wifev.UNITED STATES of America andMary Heym(Defendant in Counterclaim).Alvin H. FRANKEL, Guardian of the Estate of Marilyn Heym, anincompetent, and Herbert Heym and Mary Heym, his wifev.UNITED STATES of America, Appellant in No. 71-1352, andMary Heym (Defendant in Counterclaim). Nos. 71-1349 to 71-1352. United States Court of Appeals,Third Circuit. Argued April 10, 1972.Decided July 18, 1972. Marvin I. Lessin, Manchel, Lundy, Lessin, Finkel, Rabelow & Braverman, Philadelphia, Pa., for Alvin H. Frankel. Leonard Schaitman, Dept. of Justice, Civ.Div., Washington, D.C., for United States. Before HASTIE, VAN DUSEN and ALDISERT, Circuit Judges. OPINION OF THE COURT HASTIE, Circuit Judge. 1 Marilyn Heym suffered almost totally disabling permanent injuries in a collision between an automobile in which she was riding and an army vehicle. Injuries included brain damage that has left her psychotic and with the mentality of a five year old child. Her guardian and her father, suing in the district court under the Federal Tort Claims Act, have been awarded damages aggregating more than $1,100,000. On this appeal liability is not contested. However, both the plaintiffs and the United States have appealed from the district court's determination and award of damages. We consider first the appeal of the United States. 2 The district court awarded $650,000 for "pain and suffering, loss of enjoyment of life's pleasures, inconvenience, disfigurement and permanent injuries." This award is challenged as excessive, and not in accord with law and improperly made "for loss of life." The district court explained this very substantial award as follows: 3 ". . . The Government argues that a large part of Marilyn's pain and suffering was not conscious because she was in a coma or semi-coma. Even while in a coma she responded to painful stimuli. For many weeks when she was in a semi-coma she recognized members of her family but could not communicate with them. During this time she undoubtedly appreciated pain. In the future she will experience pain from her arm, the use of the prosthesis and from the therapy that she must undergo for the rest of her life. She frequently falls 'with a thud,' making no attempt to break her fall. She is suffering and will continue to suffer mentally. She knows that she is a girl and attempts to appear attractive. Her hostility toward men stems from an awareness that she is a girl but that she will never enjoy a normal relationship with men. She realizes that her sudden and uncontrollable outbursts are wrong and she feels badly that she cannot explain her actions and apologizes for them. In addition, she has lost the ability to engage in those activities which normally contribute to the enjoyment of life. The possibility of marriage and motherhood are gone. Carminati v. Phila. Transp. Co., 1962, 405 Pa. 500, 506, 176 A.2d 440. She cannot continue in the art career that she so enjoyed, or engage in horseback riding. She has lost peace of mind and well-being. DiChiacchio v. Rockcraft Stone Prod. Co., 1967, 424 Pa. 77, 225 A.2d 913. She will never be able to dance, or engage in recreational or normal family activities. Downie v. United States Lines Co., 3d Cir. 1966, 359 F.2d 344. In short, she has lost almost every enjoyment that life can offer. An award of $650,000.00 will be made for these items. . . ." Frankel v. United States, E.D.Pa.1970, 321 F.Supp. 1331, 1338- 1339. 4 The problem here is inherent in any effort to translate such catastrophic human loss as Miss Heym suffered into money damages. In this process systematic logic is not helpful and precision is not achievable. 5 The district court's dispassionate opinion reflects the relevant considerations that led to its determination of damages. We cannot say that the award was in any way shocking, unfair or biased. 6 The government's second contention is that the district court erred in rejecting a request that any award to Miss Heym take the form of a judicially established trust for her benefit. The court would designate or approve the trustee. The corpus of the trust would be supplied by the United States in an amount awarded by the court with a requirement that the government supplement the fund if the court should so require and that any amount remaining in the trust at the plaintiff's death should revert to the government.1 7 Admittedly, courts of law had no power at common law to enter judgment in terms other than a simple award of money damages. In view of that limitation, we have examined the enactment, 28 U.S.C. ch. 171, that authorized and circumscribed tort actions against the sovereign and, to some extent, prescribed the procedure for such cases. More particularly, section 2679(b) of Title 28, makes the remedy provided in section 1346 of Title 28 the exclusive resort of such claimants as the plaintiffs. Among other things, section 1346(b) authorizes district courts to entertain "civil actions on claims against the United States, for money damages. . . ." Arguably, this language at least implies that primary awards in such civil suits must take the form of common laws money judgments, the only form of "money damages" known to the common law. More probably, the Congress never considered whether it might be desirable that some awards be made in a different form. 8 We agree with the district court that in administering the legislation in question a district court should not make other than lump-sum money judgments unless and until Congress shall authorize a different type of award. The relaxation of sovereign immunity is peculiarly a matter of legislative concern, responsibility and policy. If novel types of awards are to be permitted against the government, Congress should affirmatively authorize them. 9 The district court also alluded to the continuing burden of judicial supervision that would attend a judgment creating a life trust. This too is a consideration against the government's proposal. 10 The plaintiffs' appeals question the awards of only $62,000 for loss of future earnings and $461,084 for the anticipated cost of future institutional care. 11 On the issue of anticipated future earnings, it is argued that the court erred in not giving full effect to the expert testimony of an economist that, but for this disabling accident, Miss Heym's probable future earnings would have amounted to $237,630. At the time of the accident Miss Heym was a promising 19 year old commercial art student who intended after graduation to enter upon a career as a commercial artist. On this basis, the witness assumed her future employment as a successful commercial artist working continuously until normal retirement age, and he calculated loss of future earnings accordingly. However, the district court, taking into account evidence of Miss Heym's temperament and personality, deemed it probable that she would have married and borne children, with consequent substantial interruptions of gainful employment. In addition, the degree of success Miss Heym would have achieved in the career for which she was preparing but upon which she had not yet embarked was an additional uncertainty which the court could properly take into account. In these circumstances, the district court concluded that loss of future earnings from the date of judgment amounted to $125,000, the present worth of which was $62,000.2 This determination was not arbitrary or unreasonable. 12 Finally, it is argued that the sum of $461,084 awarded for future institutional care is inadequate. The parties agree that Miss Heym will require institutional care for the remainder of her life. They disagree on her life expectancy. Appellants contend that because Miss Heym's vital organs are not impaired she is entitled to an award measured by the normal life expectancy of a young woman of her age. But there was evidence that her severe brain damage and emotional disturbance had consequences reasonably calculated to shorten her life span. These consequences included convulsions, violent emotional outbursts, circulatory problems and frequent unpredictable falls. Compulsive eating and attendant obesity also are observable. Considering these abnormalities, we cannot say that the court's very substantial award for future institutional care was inadequate because it did not cover the full life expectancy of a young person in normal health. 13 It also is contended that the district court erred in reducing the future cost of institutional care to present worth and in not making a substantial allowance for future inflation. In its opinion the district court fully considered and rejected this contention. 321 F.Supp. 1331, 1345-1348. We agree with the district court's analysis and conclusion. 14 The judgment will be affirmed. 1 The obvious advantage of this arrangement would be to prevent the award, intended as compensation to the injured person, from becoming a windfall to others who would control its use and disbursement 2 An additional $12,500 was awarded for loss of earnings from the date of injury until judgment

643 F.Supp. 1133 (1986) ZENITH RADIO CORPORATION, Plaintiff, v. The UNITED STATES, Defendant. Court No. 80-5-00861. United States Court of International Trade. August 8, 1986. *1134 Frederick L. Ikenson, P.C. (Frederick L. Ikenson, Washington, D.C., on briefs), for plaintiff. Richard K. Willard, Asst. Atty. Gen., Michael F. Hertz, Director, Commercial Litigation Branch (Velta A. Melnbrencis, Washington, D.C., on briefs), for defendant. MALETZ, Senior Judge: The government moves for assessment of damages on a $250,000 injunction bond posted by Zenith. For the reasons that follow, the motion is denied. I. Background On March 10, 1971, the Secretary of the Treasury found that television sets from Japan were being dumped. 36 Fed.Reg. 4597 (1971). Such sets, therefore, became subject to antidumping duties. From 1971 through 1979, however, most of these duties were not collected. On March 28, 1980, the Secretary of Commerce, to whom responsibility for administering the antidumping laws had been transferred, announced an administrative review of the antidumping finding. 45 Fed.Reg. 20,511 (1980); see Tariff Act of 1930 § 751, 19 U.S.C. § 1675. Before the administrative review was completed, on April 28, 1980, the Secretary of Commerce settled for $77 million all claims for antidumping duties related to entries of television sets from July 1, 1973 to March 31, 1979. Zenith brought this action to challenge the lawfullness of the settlement agreement.[1] In challenging the settlement, Zenith relied on two theories: (1) the agreement was not authorized by 19 U.S.C. § 1617 and was, therefore, ultra vires; and (2) the government officials who recommended and entered into the settlement acted arbitrarily, capriciously, and in bad faith. Early in the history of this action, Zenith moved for a preliminary injunction barring government officials from implementing the terms of the settlement agreement. Finding that Zenith had "made out a substantial case on the merits on its second alternative cause of action alleging that Government officials ... acted arbitrarily and in bad faith," Zenith Radio Corp. v. United States, 1 CIT 53, 56, 505 F.Supp. 216, 219 (1980), the court granted a preliminary injunction, id. at 58, 505 F.Supp. at 220-21.[2] Later, the court granted the government's motion to require Zenith to post security for the injunction under rule 65(c) of this court. Although the government requested that security be set at $11.5 million,[3] the court directed Zenith to post security or a bond in the amount of $250,000 "to indemnify the defendant should it ultimately be determined that the defendant was wrongfully enjoined or restrained by the preliminary injunction issued by this court...." Zenith Radio Corp. v. United States, 2 CIT 8, 11, 518 F.Supp. 1347, 1350 (1981).[4] *1135 Subsequently, our appellate court ruled that this court lacked jurisdiction to entertain an action such as Zenith's. Montgomery Ward & Co. v. Zenith Radio Corp., 69 CCPA 96, 673 F.2d 1254, cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982). Prior to denial of certiorari in Montgomery Ward, this court denied the government's motion to dissolve the preliminary injunction, because government implementation of the settlement agreements would moot the controversy and prevent Supreme Court review. Zenith Radio Corp. v. United States, 3 CIT 243, 244 (1982).[5] After the Supreme Court denied certiorari, however, this court dissolved the preliminary injunction. Zenith Radio Corp. v. United States, 4 CIT 201, 4 CIT 202 (1982). The government then moved for assessment of damages on the injunction bond.[6] II. Rule 65(c) Rule 65(c) of this court, in language identical to the parallel provision of the Federal Rules of Civil Procedure, provides in part: "No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained." The circuits do not agree unanimously on the interpretation of rule 65(c).[7] A. The Page Communications Approach The District of Columbia Circuit has taken the position that even where rule 65(c) requires a bond, this does not mean that the court is required to award damages on the bond if the injunction is dissolved, because the court still must avoid inequitable results. Page Communications Engineers, Inc. v. Froehlke, 475 F.2d 994, 997 (D.C.Cir.1973) (per curiam). Similarly, the Tenth Circuit has held that whether to award damages on an injunction bond is a question committed to the discretion of the trial court, which should weigh considerations of equity and justice. Kansas ex rel. Stephan v. Adams, 705 F.2d 1267, 1269 (10th Cir.1983). Accord H & R Block, Inc. v. McCaslin, 541 F.2d 1098, 1099 (5th Cir. 1976) (per curiam) ("The awarding of damages pursuant to an injunction bond rests in the sound discretion of the court's equity jurisdiction."). B. The Coyne-Delany Approach On the other hand, the Seventh Circuit has criticized Page Communications and H & R Block, holding that when a defendant sustains damages because of a wrongfully issued preliminary injunction, the plaintiff should "normally be required to pay the damages, at least up to the limit of the bond." Coyne-Delany Co. v. Capital Development Board of Illinois, 717 F.2d 385, 391 (7th Cir.1983).[8]Coyne-Delany was particularly unimpressed with the reliance that Page Communications and H & R Block placed on Russell v. Farley, 15 Otto 433, 441-42, 105 U.S. 433, 441-42, 26 L.Ed. 1060 (1882) (in absence of imperative statute to contrary, court should have power *1136 to mitigate terms imposed as condition for injunction, or to relieve from such terms altogether, whenever it appears continuation of terms would be inequitable or oppressive). The Seventh Circuit reasoned that (1) the portion of Russell upon which reliance was placed was dictum because in that case the injunction had not been dissolved completely, Coyne-Delany, 717 F.2d at 391, and (2) Russell was superseded by the adoption of rule 65(c), id.[9] In Page Communications, however, the D.C. Circuit noted that rule 65(c) did not make judgment on the bond automatic upon a showing of damages, 475 F.2d at 997, and concluded: [T]he [district] court in considering the matter of damages was exercising its equity powers, and was bound to effect justice between the parties, avoiding any result that would be inequitable or oppressive for either party. The Rule [65(c)] was not intended to negate the court's duty in this regard. Thus, we hold that the court had discretion to refuse to award damages, in the interest of equity and justice. This conclusion is consistent with the provision of the Rule which gives the court discretion to fix bond in a nominal amount; clearly the Rule does not contemplate that a defendant who is wrongfully enjoined will always be made whole by recovery of damages. Id. C. Contrasting the Approaches The court finds itself in greater agreement with the approach of Page Communications than with that of Coyne-Delany. The court does not understand rule 65(c) as vitiating Russell v. Farley[10] and believes that trial courts must retain a modicum of discretion in assessing damages on injunction bonds. Inasmuch as the rule does not mandate an automatic assessment of damages—even if the wrongfully enjoined defendant sustained legitimate damages —the court must read the rule in a manner that will "secure the just, speedy, and inexpensive determination of every action," U.S.C.I.T. R. 1. Cf. Manuli Autoadesivi, S.P.A. v. United States, 9 CIT ___, ___, 602 F.Supp. 96, 98 (1985) (intervention denied because of likelihood of prejudice to original parties, citing rule 1's direction of just, speedy, and inexpensive determinations). While the court has expressed a preference for the approach of Page Communications, the tension between that case and Coyne-Delany might not be as great as appears at first blush. It is doubtful that the D.C. Circuit, or other circuits that follow Page Communications, would contest Coyne-Delany's assertion that damages *1137 normally should be assessed on the bond posted for a wrongfully issued injunction. And Coyne-Delany certainly recognizes that there are situations when damages should not be assessed. Thus, the question is one of emphasis: is the presumption that damages will be assessed overwhelming and rebuttable only in rare circumstances (Coyne-Delany), or do the court's equitable responsibilities mandate careful examination before assessment of damages (Page Communications)? This court finds the latter formulation more palatable but believes that in this case the government is not entitled to an assessment of damages on either construction of rule 65(c). III. Equitable Factors The reasons for the court's conclusion that the government is not entitled to damages are evident upon an examination of the equitable factors discussed in Coyne-Delany and other cases. A. Good Faith That an injunction was obtained in good faith is not enough to defeat assessment of damages. If the rule were otherwise, damages would almost never be assessed on an injunction bond, because a party seeking a preliminary injunction must demonstrate four prerequisites: (1) [a] threat of immediate irreparable harm; (2) that the public interest would be better served by issuing than by denying the injunction; (3) a likelihood of success on the merits; and (4) that the balance of hardship on the parties favored [the party seeking the injunction]. S.J. Stile Associates v. Snyder, 68 CCPA 27, 30, 646 F.2d 522, 525 (1981); accord Zenith Radio Corp. v. United States, 1 Fed.Cir. 74, 76, 710 F.2d 806, 809 (1983). In light of these stiff requirements, a party acting in bad faith will not often obtain an injunction, unless he was capable of misleading the court on a grand scale. Nevertheless, the good faith of the party who obtained the injunction is one of the factors the court may consider. See Coyne-Delany, 717 F.2d at 392 (court should consider full range of factors, which might include plaintiff's good faith); Page Communications, 475 F.2d at 997 ("The good faith of Page cannot be doubted."). Based on its familiarity with the proceedings in this case, the court is entirely satisfied that Zenith acted in good faith when it sought injunctive relief. B. Resources of the Parties The relative resources of the parties, see Coyne-Delany, 717 F.2d at 392, do not tip the scales strongly in favor of or against assessment of damages. The court takes judicial notice that Zenith is hardly impecunious. But there is probably no party in the world better situated than the government of the United States to absorb the loss of $250,000 without dire consequences. C. Mitigation of Damages The court will not consider the factor of mitigation of damages, see id. Because the interest lost by the government on the $77 million settlement dwarfed the bond of $250,000, even a high degree of governmental lassitude would not suffice to make failure to mitigate damages significant. If the injunction damaged the government, damages—even if vigorously mitigated— would exceed $250,000. Therefore, the government should not be penalized if it failed to mitigate damages.[11] D. Outcome of the Underlying Suit While the outcome of the underlying suit is one of the factors discussed in Coyne-Delany, see id., it has minimal relevance to this action, which was dismissed on jurisdictional grounds. The court will neither speculate nor require a mini-trial on the question of whether Zenith's allegation of bad faith in the $77 million settlement agreement had substantive merit. The court does find, however, that the allegation *1138 was not frivolous. To that extent, Zenith's failure to win the underlying suit is not a significant factor in favor of assessment of damages.[12] E. Change in the Law The most significant factor in Zenith's favor, and the one upon which the court relies in denying assessment of damages, is the change in the law that took place after the preliminary injunction was issued and thus deprived Zenith of its day in court. That change was the decision by the court of appeals in Montgomery Ward & Co. v. Zenith Radio Corp., 69 CCPA 96, 673 F.2d 1254, cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982). Montgomery Ward held that neither of the relevant statutes —28 U.S.C. §§ 1581(c) or (i)—conferred jurisdiction on Zenith's claim of bad faith in the antidumping settlement. 69 CCPA at 104-11, 673 F.2d at 1260-65. While Montgomery Ward did not change the law in the sense that it overruled a prior precedent, it did decide a novel jurisdictional question in a manner contrary to what Zenith legitimately could have expected.[13] In Coyne-Delany, the Seventh Circuit held that a change in the law might not always be a good ground for denying damages, but that "it is a legitimate consideration, perhaps especially when the prevailing party is a state agency that benefited from a change in the law of its state." 717 F.2d at 392-93. Here, the federal government benefited from a construction of federal law by a federal court of appeals. A change in the law was the major reason that damages were denied in Kansas ex rel. Stephan v. Adams, 705 F.2d 1267 (10th Cir.1983). The court stated: In our judgment the trial court did not abuse its discretion by holding that costs and expenses were not to be awarded. The record discloses that the plaintiffs raised valid environmental concerns. Moreover, the restraining order was vacated not because the concerns on the part of plaintiffs-appellees were unfounded. It was the intervention of Congress that brought about the change. Id. at 1270. Because of the jurisdictional ruling in Montgomery Ward, Zenith will never have an opportunity to prove its allegation, which the court has found non-frivolous, that the $77 million settlement was tainted by bad faith. Under all the circumstances, however, it would be manifestly unfair to add a rule 65(c) insult to the jurisdictional injury. The $77 million settlement has never been vindicated on the merits. Rather, this court was held to lack jurisdiction to review the merits of the settlement. If Zenith lost the opportunity to be heard on its good faith claim of governmental impropriety, it should not be required to pay damages to the government as well. IV. Conclusion For the foregoing reasons, the government's motion, under rule 65(c) of this court, for assessment of damages on the injunction bond is denied. NOTES [1] For a detailed discussion of the background of this action, see Zenith Radio Corp. v. United States, 1 CIT 180, 509 F.Supp. 1282 (1981). [2] In this connection, the court noted that the United States Court of Appeals for the District of Columbia Circuit had issued a substantially identical injunction in a related action. The court further observed that the D.C. Circuit's injunction was certain to be dissolved imminently because of the impact of the Customs Courts Act of 1980, 28 U.S.C. § 1581, which vested in this court exclusive jurisdiction over the type of international trade action brought by Zenith. Zenith Radio Corp. v. United States, 1 CIT 53, 54-55, 505 F.Supp. 216, 218 (1980). As matters developed, this court also lacked jurisdiction over Zenith's action. See Montgomery Ward & Co. v. Zenith Radio Corp., 69 CCPA 96, 673 F.2d 1254, cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982). [3] The government performed the following calculation to arrive at the figure of $11.5 million: the injunction delayed the government's receipt and use of the $77 million settlement; one year's interest on the figure, at 15% interest, is $11.5 million. [4] The court considered various factors in setting security at $250,000. It found that Zenith's action had the potential of benefiting other United States television manufacturers, 2 CIT at 10, 518 F.Supp. at 1350; that Zenith might advance the public interest in faithful enforcement of the antidumping laws, id. at 10-11, 518 F.Supp. at 1350; and that prohibitive security would undermine the congressional goal that the government's administration of the antidumping laws be subject to judicial review, id. at 11, 518 F.Supp. at 1350. [5] The court rejected the government's suggestion that the preliminary injunction should be dissolved and that Zenith should be required to seek an injunction from the court of appeals or the Supreme Court pending filing of a petition for certiorari, finding such a procedure wasteful. 3 CIT at 244. [6] Between dissolution of the preliminary injunction and final submissions on the motion for assessment of damages, the parties sparred over discovery for some time. See Zenith Radio Corp. v. United States, 7 CIT 398, 588 F.Supp. 1443 (1984), rev'd, 764 F.2d 1577 (Fed.Cir.1985). [7] Because of the identity of language between this court's rule 65(c) and the same rule of the Federal Rules of Civil Procedure, it is particularly helpful to consider precedents from other circuits. Cf. U.S.C.I.T. R. 1 ("The court may refer for guidance to the rules of other courts."). [8] In Coyne-Delany, as here, the plaintiff was "not a poor person but a substantial corporation." 717 F.2d at 392. Whereas this court required an injunction bond of $250,000, the district court in Coyne-Delany required a bond of only $5,000. Id. at 390. [9] Coyne-Delany was willing to accept the possibility of good reasons for not awarding damages on an injunction bond: "objective factors—such as the resources of the parties, the defendant's efforts or lack thereof to mitigate his damages, and the outcome of the underlying suit...." 717 F.2d at 392. The Seventh Circuit also stated that a change in the law after issuance of the preliminary injunction may not always be a good reason for denying damages, "but it is a legitimate consideration, perhaps especially where the prevailing party is a state agency that benefited from a change in the law of its state." Id. at 392-93. These factors are discussed further in Part III, infra. A recent student note goes further than Coyne-Delany: Courts should not be free to deny, in their discretion, the recovery of damages otherwise available under rule 65(c). Courts should deny recovery only when damages are not recoverable under the general law of damages or under a just interpretation of the conditions of the bond. Note, Recovery for Wrongful Interlocutory Injunctions under Rule 65(c), 99 Harv.L.Rev. 828, 842-43 (1986). The note reads rule 65(c) as undoing Russell v. Farley, id. at 843, and rejects Coyne-Delany's list of factors that might lead to denial of recovery of damages, id. at 844. [10] It is interesting that the Advisory Committee note to the 1946 amendment to Federal Rule of Civil Procedure 65 indicates that the rule prevents the court from requiring, as was possible under Russell v. Farley, 15 Otto at 446, 105 U.S. at 446, institution of a new action for recovery on the bond. To this extent, rule 65 overruled Russell by enabling the defendant to move for damages on the bond as part of the original action. Nothing in the Advisory Committee notes states, however, that rule 65(c) abrogates Russell's grant of equitable power to decline to assess damages. [11] Because the court holds on other grounds that the government is not entitled to damages, it does not reach the merits of Zenith's alternative contentions that the government was not damaged by the injunction or that the government failed to mitigate damages. [12] The non-frivolity of Zenith's substantive claim is a factor quite similar to Zenith's good faith, discussed previously. Neither is crucially important, and the court will not give Zenith "double credit" for bringing a good faith action that was not frivolous. [13] In particular, 28 U.S.C. § 1581(i)(2) grants this court exclusive jurisdiction of civil actions commenced against the government that arise out of any law providing for tariffs and duties. On its face, section 1581, which became law during the pendency of this action on October 10, 1980, Pub.L. 96-417, tit. II, § 201, 94 Stat. 1728, 1728-29, seemed to offer Zenith an opportunity to press its claims in this court.

Carl Autry v. State IN THE TENTH COURT OF APPEALS No. 10-01-383-CR No. 10-01-384-CR      CARL PRESTON AUTREY,                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                               Appellee From the 82nd District Court Robertson County, Texas Trial Court Nos. 01-0817112-CR and 99-0916719-CR                                                                                                                  MEMORANDUM OPINION                                                                                                                        Carl Preston Autrey pleaded guilty to possession of amphetamine in the amount of one gram or more but less than four grams in trial court cause no. 99-09-16,719-CR (our cause no. 10-01-384-CR). Pursuant to a plea bargain, the court placed him on deferred adjudication community supervision for seven years. About one year later, the grand jury presented an indictment against Autrey for possession of less than one gram of methamphetamine. This indictment was docketed under trial court cause no. 01-08-17,112-CR (our cause no. 10-01-383-CR).       After the court denied Autrey’s suppression motion, he pleaded guilty to the methamphetamine charge. Pursuant to a plea bargain, the court sentenced him in this case to one year’s confinement in a state jail. Autrey also pleaded true to the allegations in the State’s motion to adjudicate the amphetamine charge. The court sentenced Autrey to five years’ imprisonment in that case. Autrey appeals the court’s denial of the suppression motion.       Autrey appeals from the court’s determination to proceed with an adjudication of guilt in cause no. 10-01-384-CR. Such an appeal is statutorily prohibited. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Accordingly, we will dismiss the appeal in cause no. 10-01-384-CR. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).       Autrey’s sole issue in cause no. 10-01-383-CR challenges the court’s ruling on his suppression motion. He alleges that an affidavit presented to a magistrate for issuance of a search warrant did not provide probable cause because it: (1) contained stale information; and (2) was based in part on the uncorroborated statements of an anonymous informant.       The affidavit was executed by Hugh Curry, an officer with a narcotics task force. The affidavit states in pertinent part that Curry “received anonymous information” that Autrey had been in possession of a “sizable amount of Methamphetamine” within the twenty-four hours immediately preceding the preparation of the affidavit. On the morning of the day Curry executed the affidavit, a confidential informant advised Curry that Autrey had instructed the informant on the preparation of methamphetamine and had assisted the informant with “several processes” during his preparation of methamphetamine. The informant told Curry that he had assisted Autrey in preparing methamphetamine and had seen Autrey prepare methamphetamine at Autrey’s residence several times during the six months before the date of the affidavit. Curry stated that he has received reliable information from the confidential informant in the past.       We examine the totality of the circumstances to determine whether the facts alleged in an affidavit establish probable cause for issuance of a search warrant. Ill. v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Burke v. State, 27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref’d). Ordinarily, we do not go beyond the “four corners” of the affidavit. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); State v. Ozuna, 88 S.W.3d 307, 310 (Tex. App.—San Antonio 2002, pet. ref’d); Burke, 27 S.W.3d at 654. Thus, we conduct a de novo review of the affidavit to determine whether it establishes probable cause. Ozuna, 88 S.W.3d at 310; Burke, 27 S.W.3d at 654.       An affidavit presenting stale information does not provide probable cause for issuance of a search warrant. Morris v. State, 62 S.W.3d 817, 823 (Tex. App.—Waco 2001, no pet.); Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); accord Gonzales v. State, 577 S.W.2d 226, 228 (Tex. Crim. App. [Panel Op.] 1979). Accordingly, we examine how much time has elapsed between the events set out in the affidavit and the issuance of the search warrant. Id. However, “[w]hen the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct, the passage of time becomes less significant.” Morris, 62 S.W.3d at 823; accord Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d); see also Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973).       For information from an anonymous source to satisfy the totality-of-the-circumstances test of Gates, “the informer must assert personal knowledge or there must be additional facts showing reason to believe that the contraband sought will probably be where the information indicates it will be.” Rojas v. State, 797 S.W.2d 41, 44 (Tex. Crim. App. 1990); Garcia v. State, 3 S.W.3d 227, 236 (Tex. App.—Houston [14th Dist.] 1999), aff’d, 43 S.W.3d 527 (Tex. Crim. App. 2001); Parish v. State, 939 S.W.2d 201, 204 (Tex. App.—Austin 1997, no pet.).       Here, Curry’s affidavit recites that an anonymous informant told Curry that Autrey “ha[d] been seen” with methamphetamine within the twenty-four hours immediately preceding issuance of the warrant. The information from this anonymous informant does not appear to have been based on the personal knowledge of the informant. However, the information provided by the confidential informant gave “reason to believe that the contraband sought [would] probably be where the information indicate[d] it [would] be.” Id.       Even assuming the anonymous information was not sufficiently corroborated, the remaining information in the affidavit provided sufficient probable cause for issuance of the warrant. Cf. Franks v. Del., 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978) (instructing lower court to disregard false information when considering sufficiency of probable cause affidavit); Hinojosa v. State, 4 S.W.3d 240, 250 (Tex. Crim. App. 1999) (conducting this type of review).       Autrey does not challenge the reliability of the confidential informant. The confidential informant told Curry that he had personally witnessed Autrey preparing methamphetamine in his residence and that Autrey had done so on several occasions during the preceding six months.       Under the totality of the circumstances, this information regarding a continuing course of illegal conduct by Autrey provided the magistrate with adequate probable cause to issue the search warrant. See Morris, 62 S.W.3d at 823; Lockett, 879 S.W.2d at 189; see also Bastida, 487 F.2d at 864. Thus, we hold that Autrey’s sole issue is without merit.       We affirm the judgment in cause no. 10-01-383-CR. We dismiss the judgment in cause no. 10-01-384-CR.   FELIPE REYNA                                                                    Justice Before Chief Justice Gray,       Justice Vance, and       Justice Reyna Judgment affirmed in cause no. 10-01-383-CR, appeal dismissed in cause no. 10-01-384-CR, Opinion delivered and filed February 4, 2004 Do not publish [CR25]

85 Wn.2d 414 (1975) 536 P.2d 630 In the Matter of the Application for a Writ of Habeas Corpus of LE ROY ALTER, Petitioner, v. CHARLES MORRIS, as Secretary of the Department of Social and Health Services, Respondent. In the Matter of the Application for a Writ of Habeas Corpus of WALTER A. WADZUK, Petitioner, v. CHARLES MORRIS, as Secretary of the Department of Social and Health Services, Respondent. In the Matter of the Application for a Writ of Habeas Corpus of DAVID LEE HICKEY, Petitioner, v. CHARLES MORRIS, as Secretary of the Department of Social and Health Services, Respondent. In the Matter of the Application for a Writ of Habeas Corpus of LILLIAN I. WILLIAMS, Petitioner, v. CHARLES MORRIS, as Secretary of the Department of Social and Health Services, Respondent. In the Matter of the Application for a Writ of Habeas Corpus of SHELDON R. STEELE, Petitioner, v. CHARLES MORRIS, as Secretary of the Department of Social and Health Services, Respondent. Nos. 43244, 43245, 43246, 43247, 43248. The Supreme Court of Washington, En Banc. June 5, 1975. Richard Emery, Richard Blumberg, and Allen Ressler of Legal Services, for petitioners. Slade Gorton, Attorney General, and Stephen J. Hosch, Assistant, for respondent. HAMILTON, J. Five petitions for writs of habeas corpus have been consolidated since each presents substantially the same question.[1] Each petitioner is presently incarcerated in a Washington state mental hospital, committed as criminally insane after an acquittal of criminal charges by reason of insanity. They now challenge the criminal mental commitment law as violative of equal protection and due process. *416 Essentially petitioners argue that the present statutory scheme[2] applies a single standard (that of present dangerousness) to two indistinguishable groups — those acquitted of criminal charges on grounds of insanity, and everyone else subject to mental commitment. This single standard, they argue, is the subject of an unjustifiable difference in burden of proof and procedure: the insanity-acquitted individual carries the procedural burden, while in civil commitment proceedings the burden is entirely the State's. The civil commitment statute, RCW 71.05, provides for progressively more lengthy detention of individuals based on a judicial determination of mental incapacity which must be progressively more severe for the longer detention period and which requires a progressively greater burden of proof from the State. In order to commit an individual for 14 days, the State must show by a preponderance of the evidence that the individual is a mentally ill person whose mental disorder presents a likelihood of serious harm to the individual himself or to others, or who is gravely disabled. RCW 71.05.240. In order to continue detention beyond the 14 days, the State must show by clear, cogent, and convincing evidence that: (1) Such person has threatened, attempted, or inflicted physical harm upon the person of another or himself after having been taken into custody for evaluation and treatment, and, as a result of mental disorder presents a likelihood of serious harm to others or himself; or (2) Such person was taken into custody as a result of conduct in which he attempted or inflicted physical harm upon the person of another or himself, and continues to present, as a result of mental disorder, a likelihood of serious harm to others or himself; or (3) Such person is in custody because he has committed acts constituting a felony, and as a result of a mental disorder, presents a substantial likelihood of repeating similar acts. In any proceeding pursuant to this subsection *417 it shall not be necessary to show intent, wilfulness, or state of mind as an element of the felony; or (4) Such person is gravely disabled. RCW 71.05.280, as amended by Laws of 1974, 1st Ex. Sess., ch. 145, § 19, p. 491. [1] We equated clear, cogent, and convincing evidence to the criminal standard of beyond a reasonable doubt in In re Levias, 83 Wn.2d 253, 517 P.2d 588 (1973). Upon such a showing, a 90-day commitment order issues. Commitment after the 90-day period requires the State to show by a new petition for treatment that the committed person: (a) Has threatened, attempted, or inflicted physical harm upon the person of another during the current period of court ordered treatment and, as a result of mental disorder presents a likelihood of serious harm to others; or (b) Was taken into custody as a result of conduct in which he attempted or inflicted serious physical harm upon the person of another, and continues to present, as a result of mental disorder, a likelihood of serious harm to others; or (c) Is in custody pursuant to RCW 71.05.290 (3) and as a result of mental disorder presents a substantial likelihood of repeating similar acts; or (d) Continues to be gravely disabled. RCW 71.05.320(2), as amended by Laws of 1974, 1st Ex. Sess., ch. 145, § 23, p. 494.[3] A commitment period of 180 days is then authorized. No single commitment period can exceed 180 days. Successive commitments of 180 days are permissible on subsequent *418 showings of the same elements by the State in subsequent hearings. [2] It will be noted that the commission of acts constituting a felony is a ground for commitment for 90 days under RCW 71.05.280(3). However, that ground as such is only indirectly carried into the statute which authorizes commitment for 180 days. This would appear to be the result of a drafting error; RCW 71.05.320(2) (c) refers to RCW 71.05.290(3), which relates to persons incompetent to stand trial. Presumably, the section should instead refer to RCW 71.05.280(3), which relates to the commission of acts constituting a felony. Such an interpretation is consistent with the language of RCW 71.05.320(2) (c) ("substantial likelihood of repeating similar acts"). Individuals committed under the civil commitment statute may be released by the treating facility prior to expiration of the commitment period without court proceedings. RCW 71.05.260, .330, and .340. A criminal defendant must plead and establish by a preponderance of the evidence the defense of insanity. RCW 10.77.030, as amended by Laws of 1974, 1st Ex. Sess., ch. 198, § 3, p. 786. The court or jury must make special findings stating whether the defendant committed the act charged, whether he or she is acquitted "because of insanity existing at the time of the act charged," whether he or she is "a substantial danger to other persons unless kept under further control by the court," whether he or she presents "a substantial likelihood of committing felonious acts jeopardizing public safety or security unless kept under further control," and whether it is "in the best interests of the defendant ... that the defendant be placed in treatment that is less restrictive than detention in a state mental hospital." RCW 10.77.040, as amended by Laws of 1974, 1st Ex. Sess., ch. 198, § 4, pp. 786-87. The burden of proof on the issue of commitment at the time of acquittal is unclear from the statute. The burden of proof on the issue of conditional release from commitment *419 is also unclear; under RCW 10.77.150, release is possible if the Secretary of the Department of Social and Health Services so recommends, and a reviewing court may deny release "only on the basis of substantial evidence." RCW 10.77.150, as amended by Laws of 1974, 1st Ex. Sess., ch. 198, § 13, pp. 793-94. The burden of proof at the time of final discharge is on the petitioner (the insanity-acquitted committed person); the standard of proof is a preponderance of evidence. RCW 10.77.200(2). The foundation of petitioners' argument is that since both civil and criminal commitment groups are defined by their potential dangerousness, and the standard to be applied in determining the question of commitment in both cases is the likelihood of future dangerousness, the differences in commitment and release procedures deny equal protection and due process to the group which faces the heavier procedural burden — the insanity-acquitted group. Asserting the two groups to be indistinguishable and the standards to be the same, petitioners contend that equal protection requires that the difference in treatment be justified by its relation to a valid public purpose under a strict scrutiny test. The State, they argue, must show that a compelling interest is satisfied by subjecting the insanity acquitted to a more burdensome procedure than that confronted by the civilly committed. Apparently because the quantum of dangerousness might be one factor in such a compelling state interest, petitioners argue that the substantial defects in the "dangerousness" standard as a matter of statistics and predictability render it an improper diagnostic and legal determinant. Petitioners' argument is cogent, and well presented. We are unable, however, to accept petitioners' approach. We disagree with the initial premise, and thus must reach a different conclusion. We think the two groups are distinguishable, and are therefore subject to different procedural burdens. *420 [3-5] Both groups are in the commitment process primarily because of the State's interest in the safety and security of its citizens. Both statutes indeed attempt to determine dangerousness. Petitioners emphasize that under RCW 71.05.280, as amended in 1974, the civil commitment group includes individuals taken into custody because of "acts constituting a felony," which the State must show by clear, cogent, and convincing evidence. RCW 71.05.310. Those subject to criminal commitment have been found beyond a reasonable doubt to have committed an act which, except for their insanity, would have been a criminal act subjecting them to criminal penalties. Furthermore, the jury must find that there is a substantial likelihood that the accused will commit future acts jeopardizing the public safety. We are of the view that the legislature, in drafting these two statutes, contemplated that a prosecutor would proceed by way of criminal charges against persons who have committed serious felonies, reserving the civil process for persons who have committed less serious acts which may amount to felonies. The standard to be applied is one of dangerousness; clearly, past conduct is heavily indicative of the likelihood that a person will commit similar acts which will again endanger others. Therefore, it is logical that those who have reached the attention of the State because of serious antisocial acts, would be subject to more procedural burdens in obtaining their release than are those whose acts are less threatening to the public safety. This latter group is appropriately relieved of such burdens, the responsibility of proving their dangerousness falling accordingly to the State. The distinction in both cases is one of degree; the more serious acts result in a heavier burden on the actor on the issue of whether that person must be confined in the interest of public safety. We are cognizant that the social and scientific determinants of dangerousness, especially future dangerousness, are far from perfect. However, the State's interest in the safety of its citizens is strong enough to allow the legislature *421 some leeway in formulating what are essentially predictive standards. The theory of mental commitment underlying both statutes is twofold: preventive detention, and treatment. Neither statute authorizes commitment and detention on the sole ground of a person's need for treatment; protection of citizens is the primary justification for the deprivation of an individual's liberty under these statutes. Protection by prevention requires prediction; under our statutes, prediction is based in part on the fact of prior dangerous acts proved beyond a reasonable doubt. Full due process safeguards surround that proof. The fact that the prediction cannot be foolproof does not discredit the attempt. At this point in the development of our knowledge about human behavior, the dangerousness standard is not an unreasonable one. Our conclusion that the classes are differently constituted is consistent with our decision in State v. Blubaugh, 80 Wn.2d 28, 491 P.2d 646 (1971), in which we considered differing discharge provisions governing civilly and criminally committed persons under statutes then in effect. We concluded that insanity-acquitted individuals who have been found unsafe to be at large could properly be treated as "`an exceptional class of people.'" State v. Blubaugh, supra at 33. We held that equal protection was not violated by subjecting a person committed under the criminal insanity statute to a heavier burden in obtaining release from confinement. We think the Blubaugh reasoning is by analogy applicable here; different procedures are justified in determinations of present dangerousness, whether at the time of initial commitment or at the time of a petition for release from confinement. The cases principally relied upon by petitioners do not compel another result. Baxstrom v. Herold, 383 U.S. 107, 15 L.Ed.2d 620, 86 S.Ct. 760 (1966), involved a New York statutory provision allowing for summary commitment of a state prisoner at the end of his or her sentence, without the procedural safeguards of hearing and jury trial accorded *422 before civil commitment. The facts of Baxstrom distinguish it readily from the case at hand. As the court stated in United States v. Brown, 478 F.2d 606, 612 (D.C. Cir.1973): Insofar as Baxstrom pertains to procedures, its spirit may be applicable to all persons in prison. But insofar as it may govern burden and standard of proof, it is limited to persons at the end of the penal term. (Footnote omitted.) The provisions of the Washington statute comport with Baxstrom. Under RCW 10.77.020, as amended by Laws of 1974, 1st Ex. Sess., ch. 198, § 2, pp. 785-86, no person may be committed under the criminal commitment act for a period exceeding the maximum possible penal sentence for any offense charged for which that person was acquitted by reason of insanity. At the end of that period if the person is still in need of commitment or treatment, civil commitment proceedings must be instituted. Petitioners also rely heavily on Jackson v. Indiana, 406 U.S. 715, 32 L.Ed.2d 435, 92 S.Ct. 1845 (1972). There the court was concerned with an involuntary indefinite commitment based solely on incompetency to stand trial on criminal charges. The mere filing of criminal charges was held insufficient to justify different treatment for purposes of indefinite commitment. The present petitions do not raise an issue of indefinite commitment prior to judicial determination as to commission of the acts charged. Our statutes do not permit such indefinite commitment based on incompetency to stand trial. RCW 10.77.090, as amended by Laws of 1974, 1st Ex. Sess., ch. 198, § 8, pp. 789-91. Finally, petitioners rely heavily on Bolton v. Harris, 395 F.2d 642 (D.C. Cir.1968), in which the District of Columbia Court of Appeals held that an insanity-acquitted individual could not automatically be committed but must be accorded procedures substantially similar to those in civil commitment proceedings. That court relied on Baxstrom for the proposition that "commission of criminal acts does not give rise to a presumption of dangerousness which, standing *423 alone, justifies substantial difference in commitment procedures and confinement conditions for the mentally ill." Bolton v. Harris, supra at 647. The court held that "persons found not guilty by reason of insanity must be given a judicial hearing with procedures substantially similar to those in civil commitment proceedings." Bolton v. Harris, supra at 651. The court acknowledged that the insanity acquitted could be treated differently from the civilly committed "to the extent that there are relevant differences between these two groups." Bolton v. Harris, supra at 651. The court upheld the statute requiring court review before release of the criminally committed when no such review was required for civilly committed. However, the court found that where habeas corpus was used as an alternative method of establishing eligibility for release, the burden of proof should be the same for civilly and criminally committed patients, stating: "While the criminal acts committed by a [criminally committed] patient may be evidence indicating whether or not the burden has been met, they do not justify a different burden." Bolton v. Harris, supra at 653. We do not reach the same conclusion as did the Bolton court, and we note that a subsequent case from that court, United States v. Brown, supra, represents a substantial retreat from the Bolton holding. The court in Brown considered arguments similar to those advanced here, and found justification for a more lenient commitment standard for the insanity acquitted, stating: The difference between the classes for purposes of burden of proof, is in the extent of possibility and consequence of error. If there is error in a determination of mental illness that results in a civil commitment, a person may be deprived of liberty although he never posed any harm to society. If there is a similar error in confinement of an insanity-acquitted individual, there is not only the fact of harm already done, but the substantial prospect that the same error, ascribing the quality of mental disease to a less extreme deviance, resulted in a legal exculpation where there should have been legal responsibility for the antisocial action. United States v. Brown, supra at 611. *424 We conclude then that the cases relied upon by petitioners are factually distinguishable from the present case, and are therefore not controlling. We adhere to our earlier decision in Blubaugh; and, based on our presumption of legislative intent, we consider the insanity-acquitted group to be "`an exceptional class of people'" who have committed serious felonies and have raised the spectre of their own potential dangerousness by successfully advancing an insanity defense. This group is distinguishable from those committing less serious acts which nevertheless constitute a felony. We thus find permissible, if not artful, the statutory provisions relating to commitment and release of the insanity-acquitted individual. Accordingly, the petitions are denied. FINLEY, HUNTER, WRIGHT, and BRACHTENBACH, JJ., concur. STAFFORD, C.J., concurs in the result. ROSELLINI, J. (dissenting in part) As I understand the position of the petitioners in this case, they contend that, had they had the benefit of commitment and release procedures which are provided for persons civilly committed under RCW 71.05, it is probable that one or more of them would not have been confined or would have been released from confinement before this action was brought or would have a greater chance of early release in the future. The question before the court is: Did the legislature deny to the petitioners the equal protection of the laws when it provided more lenient procedures for commitment and more restrictive procedures for release of persons charged with crimes and found not guilty by reason of insanity but presently unsafe to be at large, than those provided in the case of other mentally ill persons (including those who have committed felonies but have not been charged and tried)? RCW 10.77 places the burden of proving insanity at the time of the crime upon a defendant who alleges this defense. I do not understand the petitioners to challenge this *425 procedure. They are concerned with the further provision which requires the trier of the facts to make a finding whether a defendant's mental condition at the time of trial is such that he is not safe to be at large. RCW 10.77.040. They contend that the law places the burden on the defendant to show that he is safe to be at large, a burden not shared by persons civilly committed, and that as a consequence the criminal defendant is denied equal protection of the laws. The relevant statutory provisions are, as to civil commitments: RCW 71.05.150-.200, .230-.250, requiring a showing of insanity and reasons for detention before and during the initial period of commitment; RCW 71.05.260, providing that the initial period of involuntary confinement shall be for no more than 14 days, unless the patient consents to a longer confinement; RCW 71.05.290, authorizing the person in charge of the treatment facility to petition the court for an order requiring a person involuntarily committed to undergo treatment for a period of 90 days in addition to the 14 days for which he was committed after a probable cause hearing (such a petition must show that the person committed falls within one of the classifications listed in RCW 71.05.280, which includes a class of persons who have committed acts constituting a felony and present a likelihood of repeating similar acts); RCW 71.05.320, providing that, if a petition filed under RCW 71.05.280 is granted, the patient must be released after 90 days unless the person in charge of the facility files a new petition for involuntary treatment on one of the grounds specified in the statute. Successive 180-day periods of confinement may be ordered by the court, after a hearing, upon application of the person in charge of the facility. RCW 71.05.320. In all of these proceedings proof of the necessity of retaining the patient in confinement must be made by "clear, cogent, and convincing evidence" and the burden of proof rests upon the petitioner (the person in charge of the treatment facility). RCW 71.05.310. The person in charge of the *426 facility may release the patient at any time that, in his opinion, the patient no longer presents a likelihood of serious harm to others. As to criminal commitments: RCW 10.77.120, providing that a person committed as criminally insane may not be discharged except upon the order of a court of competent jurisdiction; RCW 10.77.140, providing for periodic examination of the criminally insane patient every 6 months, and RCW 10.77.150, permitting him to petition the Secretary of Social and Health Services for conditional release. The secretary is required to forward the petition to the court along with his recommendation concerning the application. The court is required to schedule a hearing on application where the secretary recommends conditional release, and may do so even though he does not recommend such a release. This section of the statute provides: The court, after the hearing, shall rule on the secretary's recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence. RCW 10.77.150(2). This sentence might at first glance appear to cast upon the secretary the burden of showing that the patient should not be released; however, if the sentence is read in context and with all of the provisions of the act in mind, it appears rather obvious that the legislature intended to require substantial evidence to support a disapproval of conditional release only in those cases where the secretary has recommended such release. Otherwise the provisions relating to conditional release would be inconsistent not only with the provisions placing the burden upon the patient to petition for conditional release but also with RCW 10.77.200, providing for final discharge upon the application of the criminally insane or conditionally released person. In the court hearing provided for in this section, there is placed squarely upon the petitioner (the criminally insane person) the burden of proving that there is no substantial danger that he will harm others if released. *427 In summary, the statutes providing for involuntary civil commitment authorize such commitment only for limited periods of time and require that the patient be released at the end of any such period unless the person in charge of the institution shows to the court that his treatment should be extended. The statutes providing for involuntary commitment of the "criminally insane," on the other hand, do not provide for automatic release but rather require a court hearing before the patient can be released. While there is provision for periodic review of his case, it is within the discretion of the custodian to recommend or refrain from recommending the release of such a patient, and if he does not recommend release, the burden is upon the patient to petition the court and show by a preponderance of the evidence that he is safe to be at large. It is thus apparent that there are substantial differences between the way criminally insane persons are treated and the way other insane persons are treated under the act, both in the commitment and the release procedures. Defining the requirements of the equal protection clause of the federal constitution (to which Const. art. 1, § 12, our "Privileges and Immunities" clause, is identical in import), the United States Supreme Court has recently stated: [T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U.S. 27 [28 L.Ed. 923, 5 S.Ct. 357] (1885); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 [55 L.Ed. 369, 31 S.Ct. 337] (1911); Railway Express Agency v. New York, 336 U.S. 106 [93 L.Ed. 533, 69 S.Ct. 463] (1949); McDonald v. Board of Election Commissioners, 394 U.S. 802 [22 L.Ed.2d 739, 89 S.Ct. 1404] (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated *428 alike." Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [64 L.Ed. 989, 40 S.Ct. 560] (1920). Reed v. Reed, 404 U.S. 71, 75-76, 30 L.Ed.2d 225, 92 S.Ct. 251 (1971). It is the position of the petitioners that the only difference between them and persons civilly committed who have done acts amounting to felonies is that in the one case the prosecutor has exercised his discretion to prosecute and in the other has refrained from doing so. This difference, they maintain, bears no relation to the purpose of the act, which is to provide treatment for the mentally ill and to afford society a reasonable degree of protection from the threat of harm to other persons which the insane may pose. In their briefs, the petitioners have cited numerous cases in which courts have held that persons charged with or convicted of crimes are entitled to a hearing before being committed to mental institutions. I do not think it is necessary to consider all of those cases here, since it is not contended that the petitioners were denied a hearing before they were committed or that the statute does not afford them a hearing upon their application for release. It is not the denial of a hearing of which they complain but rather the necessity, thrust upon them by the statute, of shouldering the burden of proving their own fitness to be free, a burden not shared by persons civilly committed after committing acts of the same kind as those which caused the petitioners to be prosecuted and thus placed in the class of "criminally insane." The petitioners maintain that if a mentally disturbed person's commission of a crime gives rise to a valid presumption that he continues thereafter to be a threat to his fellow man and, if committed, is not as likely as others to respond to treatment, and that he presents a greater risk of danger to others if released, that presumption applies equally to other "insane" persons who have committed crimes but have not been prosecuted. The legislature has not seen fit to place upon the latter class the burden of *429 showing that they are recovered and safe to be at large, and there is no reasonable ground for treating the petitioners differently. The mere fact that they were prosecuted, while the others were not, although they did the same kind of acts, bears no reasonable relation to their ability to respond to treatment or to the probability of future misconduct. With regard to the commitment procedure, I do not find this argument persuasive. Insanity being a defense, and there being no suggestion that the constitution requires the State to prove the sanity of a person charged with a crime, the burden appropriately falls upon the accused to show that his mental condition at the time of the alleged offense was such that he was not legally responsible for his acts. If he succeeds in making such a showing to the satisfaction of the trier of the facts, it is reasonable that the State should be concerned that he not be set free immediately if that mental condition still persists and if it renders him a danger to the community. Since the jury has heard all of the evidence presented by the defendant, as well as any which the State may have offered on the subject, it is in as good a position as any judicial trier of the facts to determine whether the defendant's condition is such that he should be subjected to confinement and treatment. The statute does not purport to place the burden of proof upon the defendant, and the jury is not instructed that he has the burden of proof. I think this procedure is fair and reasonable if the defendant is subject to the same release provisions as other patients in the state's institutions, and I believe the court should so hold. It is with respect to the procedures for release that I find the petitioner's arguments convincing. I can perceive no significant difference between the criminally insane and the civilly insane which affords a justification for placing the burden of proving recovery on the patient in the one case and on the institution in the other.[4] *430 The majority, however, says that there is a sigificant difference between the two classes which justifies a different treatment in the release as well as in the commitment procedures. First, they say that in a criminal proceeding the trier of the fact finds beyond a reasonable doubt that the defendant committed the act charged. But this is not always the case. Under RCW 10.77.080, the defendant may move for a judgment of acquittal on the grounds of insanity and may obtain such a judgment without the necessity of the State's proving that he committed the acts charged. See State v. Jones, 84 Wn.2d 823, 529 P.2d 1040 (1974) and State v. Foster, 84 Wn.2d 834, 529 P.2d 1046 (1974). Furthermore, it is not a valid distinction since, under RCW 71.05.310, the person in charge of a treatment facility must prove by "clear, cogent, and convincing evidence" that one of the conditions justifying the retention of the patient for additional treatment exists. One of these is that the patient has committed acts constituting a felony and presents a likelihood of repeating similar acts. The majority acknowledges that there is no difference between "proof beyond a reasonable doubt" and "clear, cogent, and convincing evidence." In re Levias, 83 Wn.2d 253, 517 P.2d 588 (1973). But more importantly, even if there were a difference in the degree of proof of the criminal act required, that difference is not one which bears any logical or reasonable relation to the purpose of the statutes in providing for commitment or release. The question with which the statutes are concerned is whether the person to be committed is *431 afflicted with a mental disorder which renders it necessary to confine him not only for the purpose of giving him treatment but also for the protection of society — not whether he has committed a crime. Undoubtedly the fact that he has committed a crime is evidence which is considered on this question; that evidence is, however, certainly not conclusive. The defendant in a criminal action may have been quite sane and the proof required by the State is the same. Since the distinction based upon an alleged difference in degree of proof is not one which relates to the purpose of the statutes, it is not a significant one. Nevertheless, it was the distinction found by the court in United States v. Brown, 478 F.2d 606 (D.C. Cir.1973), cited approvingly by the majority. Since it rests upon an invalid analysis, I do not find the holding of that case persuasive. The view adopted by the court in the Brown case seems to me a vindictive one. The reasoning appears to be: The State proved the defendant did the criminal act, but he has escaped punishment by proving that he was insane at the time. It is only fair and just that he should receive some punishment — and confinement in a mental institution is appropriate punishment. While this may be a view adopted by many courts — and it appears to be the one taken by the majority in this case — I do not think it accords with the spirit of the statutes dealing with confinement of the mentally ill. I find the statutes' general purposes to be ameliorative. They may deny equal protection in one particular aspect presented here, but as a whole they constitute humane and progressive legislation. In a further attempt to find a relevant distinction between persons civilly committed and persons committed under criminal procedures, the majority adopts a theory that the legislature intended that only those persons who have committed "serious" felonies should be prosecuted, if they are insane, and that those who have committed "less serious" felonies should be committed under civil procedures. *432 I am not surprised to find that no statutory language is cited in support of this novel proposition. I am satisfied that none exists. Certainly the statutes under consideration here make no such distinction between felonies which are to be prosecuted and those which are to be excused in the hope that a civil commitment will be effected. It has always been my understanding that a felony is, by definition, a serious offense. If a crime is not serious, it is a misdemeanor. The theory devised by the majority places a new burden upon the prosecutor. If the felony is not "serious," he must decide in advance of prosecution whether the accused is insane or else he must prosecute only "serious" felonies. The majority has not given him the benefit of any standard by which to determine which felonies are serious and which are trifling. Even assuming that the majority has divined the true, though unexpressed, intent of the legislature, the distinction relied upon is still not sufficient. The civil statute expressly provides for the commitment of dangerous persons, and dangerousness is the criterion for the retention of a patient for prolonged treatment, whether his commitment was civil or criminal. Assuming that only serious or dangerous crimes are prosecuted, this does not mean that dangerous persons will be committed only under criminal procedures. Nor does it mean that all persons who have been previously proven dangerous will be required to show their own recovery before they are set free. The question remains, Is there a legitimate purpose to be served in placing the burden of proof upon the institution in one case and upon the patient in the other? If there is such a purpose, the majority has not revealed it. The decision of the United States Supreme Court in Jackson v. Indiana, 406 U.S. 715, 32 L.Ed.2d 435, 92 S.Ct. 1845 (1972), should be regarded as ample authority for the court to sustain the contention of the petitioners with regard to the unfairness of the release procedures, insofar as *433 they place upon the "criminal" patient the burden of proving that he has been cured. In that case, the petitioner, pleading not guilty to a charge of two robberies, was examined by court-appointed psychiatrists and found to be incompetent to stand trial. The court ordered him committed to the State Department of Mental Health until such time as that department should certify to the court that the "defendant is sane." The psychiatrists had given their opinion that there was little hope that the petitioner's condition could be successfully treated in state institutions, and he argued to the court that his indefinite commitment amounted to a life sentence, and that without the charge against him the State would have been obliged to proceed under the civil statute, which involved different commitment standards and better treatment. In upholding the petitioner's contention that he was denied equal protection of the laws, the court cited Baxstrom v. Herold, 383 U.S. 107, 111-12, 15 L.Ed.2d 620, 86 S.Ct. 760 (1966), where it was held that a state prisoner civilly committed at the end of his prison sentence on the finding of a surrogate was denied equal protection when he was deprived of a jury trial which the State made generally available to all other persons civilly committed. Rejecting the State's argument that Baxstrom's conviction and sentence constituted adequate justification for the difference in procedures, the court said in that case that "there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments." The court in Jackson v. Indiana, supra, said at page 724: If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice. The court observed that the Baxstrom principle had been extended to cases involving commitment following an insanity *434 acquittal, citing Bolton v. Harris, 395 F.2d 642 (D.C. Cir.1968); Cameron v. Mullen, 387 F.2d 193 (D.C. Cir.1967) and People v. Lally, 19 N.Y.2d 27, 224 N.E.2d 87 (1966).[5] The court said further, at pages 729-30: Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release. As we noted above, we cannot conclude that pending criminal charges provide a greater justification for different treatment than conviction and sentence. Consequently, we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by § 22-1209 or § 22-1907, Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment. In Baxstrom v. Herold, supra at 111-12, the court had said: Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all. For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments. I think the clear import of these decisions of the United States Supreme Court is that, if distinctions are to be made between persons in prescribing procedures for commitment *435 to, detention in, and release from state mental institutions, those distinctions must bear a logical relation to the purpose of the statute. I think it is also implicit in those cases, if any authority were needed for the proposition, that punishment is not a legitimate purpose of statutes dealing with the confinement and treatment of mentally ill or insane persons. Therefore the confinement of a person found not guilty of a crime by reason of insanity — beyond the time when he has recovered from his mental disorder sufficiently to be reasonably safe to be at large — is not to be sanctioned. To place upon a patient the burden of proving his own recovery, an almost insurmountable burden if his custodians do not choose to cooperate, is to accomplish this result in an indirect manner. In effect it permits the custodians to impose a prison sentence upon the criminally insane at their discretion. In the case of State v. Blubaugh, 80 Wn.2d 28, 491 P.2d 646 (1971), relied upon by the majority, this court proceeded upon the assumption that only the criminally insane can be viewed as "manifestly dangerous to the community" and found a valid basis for legislative distinction between such persons and other insane persons in this supposed fact. Whether the civil statute then in effect made provision for the commitment of persons who had committed acts constituting a felony is not revealed in the opinion; but if it did, the opinion did not take account of that fact. In the case before us, no distinction can be made on the basis of "dangerousness" since the statute recognizes that persons civilly committed are apt to be dangerous, and there is no reason to suppose that a person who has been charged with a crime is more dangerous than one who has committed the same acts but has not been charged. To the extent that it is inconsistent with the United States Supreme Court cases of Jackson v. Indiana, supra, and Baxstrom v. Herold, supra, State v. Blubaugh, supra, must be considered to have lost its legitimacy as authority upon the constitutional question presented here. *436 Kenstrip v. Cranor, 39 Wn.2d 403, 235 P.2d 467 (1951), was a case relied upon in State v. Blubaugh, supra, for the proposition that the safety of society requires that the law treat the criminally insane differently from other insane persons. The petitioner in that case, who sought a writ of habeas corpus, had previously been adjudicated insane in a civil proceeding. After being confined in a state mental institution, he escaped and committed the crime of assault, to which he pleaded guilty and was sentenced. The petitioner alleged that he was still insane and sought to be transferred from the penitentiary to the Western State Hospital at Steilacoom. The court noted that the procedure and requirements for obtaining a release from the Western State Hospital were distinct from those of the penitentiary and/or the insane ward thereof and sanctioned this difference upon the notion, unacceptable under the present commitment statutes, that "[t]he safety of society requires that the law distinguish the insane from the criminally insane in its disposition of them." Kenstrip v. Cranor, supra at 405. With regard to the petitioner's claim that he should not have been committed to the penitentiary as a criminal because he was insane at the time he committed the crime and at the time he pleaded guilty, the court cited the settled rule, that, while every person is presumed to be sane and competent, when he is once adjudicated to be insane a presumption arises in favor of his continuing incompetency, and if recovery is claimed to have occurred, the burden of proving it is upon the person making the allegation. It held that, because of the continuing presumption of insanity, the trial court was obliged to appoint an attorney as the petitioner's next friend and counsel, prior to arraignment, in order to make that step in procedure accord with due process of law. This, the court said, was because a plea of guilty is within the requirements of due process only when it is made with understanding. A new trial was ordered. The court in that case expressly restricted its holding "to the rights of a person charged with a crime committed *437 after being adjudicated insane by a court of competent jurisdiction." Kenstrip v. Cranor, supra at 404. What was said in Kenstrip concerning the presumption of continuing insanity has no application here. It will be seen that the court was not concerned with the provisions of a statute governing treatment and release of inmates in mental institutions, as the court is here. Rather, it was faced with the question of how due process can be accorded an accused who has been adjudicated insane and who has proposed to enter a plea of guilty, without the assistance of counsel or a next friend, where there has been no intervening adjudication that his sanity has been restored. The presumption of a continuing state of insanity, after an adjudication, serves a useful purpose in certain situations, such as that confronting the court in Kenstrip. But here we deal with statutes which render the presumption irrelevant. RCW 71.05 manifests a legislative determination that the welfare of society and of committed persons is not served by a presumption of continuing insanity; that on the contrary the presumption must be that one confined in a state mental institution is receiving treatment and is improving. The burden is placed upon the institution to show, at frequent intervals, that the patient has not responded to the treatment sufficiently to be safe to be at large. To my mind, this is the only logical place to rest this burden. The patient is under the control and supervision of the institution. He is at its mercy. Whether he receives treatment, and how effectual that treatment may be, is a matter within the control of his custodians. It is true that, under RCW 71.05.090, a person receiving treatment is given a reasonable choice of an available physician or other professional person qualified to provide such services; but as a practical matter, it is very unlikely that a person without independent means would have access to treatment by doctors who are not staff members. It is also true that a person challenging his detention has the right to an examination by a designated independent physician or mental health *438 professional, and the right to have the results of the examination used in the proceeding (RCW 71.05.470), but is the trier of the fact likely to give to the testimony of one who has made a single examination the same weight that he gives to the testimony of those who have had the person under their custody and surveillance during the entire period of his confinement? I think it unlikely. It would seem apparent then that the legislature was responding to the developing awareness of the neglected and helpless state of the inmates of many if not most mental institutions when it saw fit to provide for frequent review of the status of patients in such institutions and to place the burden of proving the necessity of their continued confinement upon their custodians. It reasonably found that the common-law presumption of continuing insanity had no proper role to play in determining the treatment and the release procedures in the state's mental institutions. Among the patients who receive the benefit of this new and remedial legislation are persons who have committed acts constituting felonies, and, as a result of mental disorder, present a likelihood of repeating similar acts. RCW 71.05.280. It would seem, therefore, that when the legislature enacted Laws of 1974, 1st Ex. Sess., ch. 198 (RCW 10.77), providing many comparable changes in procedures dealing with the criminally insane, it would have given a person committed under these procedures the same benefit of the presumption of improvement under treatment. The only difference between persons who are committed under RCW 10.77.110 and those retained in confinement under RCW 71.05.280 (3) (persons who have committed felonies and are likely to commit more) is that the "criminally insane" patient has been charged with a crime by the prosecutor and thus compelled to allege his own insanity, whereas the civilly committed patient has not been subjected to prosecution and his insanity has been determined upon the petition of another. *439 I would assume that where a person who has committed a felony is civilly committed, this is usually done at the instance of the prosecutor. In such cases, it would be safe to assume that the person's mental disorder is so obvious that the prosecutor sees no purpose to be served in subjecting him to the ordeal of prosecution. I would think it also safe to assume that where a charge has been filed against an alleged felon and he has successfully defended the charge on grounds of insanity, his mental disorder was not obvious to the prosecutor and had to be established by psychiatric proof offered by the defendant. It is not suggested that this difference — the degree of overt manifestations of insanity — affords a reasonable basis for presumptions that one group will respond to treatment where the other will not. While it cannot be denied that the courts have often declared, as this court did in Kenstrip v. Cranor, 39 Wn.2d 403, 235 P.2d 467 (1951), that there is a difference between the "insane" and the "criminally insane" which justifies their being subjected to different treatment, I think that those statements have generally assumed that persons who were "criminally insane" — that is, persons who had been acquitted of a crime by reason of insanity — were dangerous in a way in which other mentally disordered persons were not. Whether, in the past, that assumption had a basis in fact or not, I think it is clear that under the present statutes it cannot be supported. A person who has committed a felony can be committed under either statute, provided all the conditions are met. Also persons who are "dangerous" for other reasons are committable under the civil statute. The criterion for release is one of "dangerousness" under each statute. There are no differences between the two groups which would justify the legislature in placing a more onerous burden on one group than the other in the process of obtaining release from the institution. I would hold that the procedures for review and release prescribed in RCW 71.05 apply to persons committed under RCW 10.77. *440 Since they are persons who have committed "acts amounting to a felony," the petitioners are included within the express coverage of RCW 71.05. In each of their cases, the initial 14-day period of involuntary confinement, as well as additional 90- and 180-day periods have expired. I would not order the immediate release of the petitioners, however, since their custodians have not had an opportunity to show to the court that their continued confinement and treatment is necessary. Rather, I would refer the cases to the appropriate superior court with directions to hold a hearing in each case, at the conclusion of which the petitioner should be ordered released if the person in charge of the institution in which he is confined has not shown probable cause for his continued confinement according to the provisions of RCW 71.05. UTTER, J., concurs with ROSELLINI, J. Petition for rehearing denied September 16, 1975. NOTES [1] The individual facts of each petition are varied, as are the statutes in effect when each petitioner was originally acquitted and committed. The detailed facts are, however, not relevant to the determination of these petitions. The challenge is to the present statutory scheme. [2] The relevant statutes are RCW 10.77, as amended by Laws of 1974, 1st Ex. Sess., ch. 198, and RCW 71.05, as amended by Laws of 1974, 1st Ex. Sess., ch. 145. [3] Subsection (c) of RCW 71.05.320(2), as amended, refers to RCW 71.05.290(3), which provides: "(3) If a person has been determined to be incompetent (and the charges have been dismissed) [sic] without prejudice pursuant to RCW 10.77.090(3) (or its successors), then the professional person in charge of the treatment facility or his professional designee may directly file a petition for ninety day treatment under RCW 71.05.280(1). No petition for initial detention or fourteen day detention is required before such a petition may be filed." [4] The petitioners' brief deals at some length with the question of the legitimacy of the standard of "dangerousness" as a criteria for commitment or release, citing a number of experts who maintain that this concept has little relation to reality and that psychiatrists have been induced (by the necessity of testifying within the range of judicial concepts) to make predictions of probable future misconduct which are unwarranted under the standards of their own discipline. This material is worthy of the attention of all persons interested in the criminal law. However, it pertains more to the wisdom of the legislation than to its constitutionality, as far as the issues presented in this case are concerned. I have therefore refrained from lengthening this opinion with a discussion of the petitioners' attack upon the statutory criteria for commitment and discharge. [5] And see State v. Clemons, 110 Ariz. 79, 515 P.2d 324 (1973), a lucid opinion which is also supportive of my view here.

342 P.2d 706 (1959) STATE ex rel. Barton A. BRASSEY and George L. Crookham, Jr., Plaintiffs, v. Max HANSON, Chief Clerk of the House of Representatives, Edward Middlemist, Secretary of the Senate, William Drevlow, Lt. Governor and President of the Senate, and Robert Doolittle, Speaker of the House of Representatives, Defendants. No. 8807. Supreme Court of Idaho. August 3, 1959. *707 Allan G. Shepard, Boise, for plaintiffs. Sylvan A. Jeppesen, Boise, for defendant Hanson. Frank L. Benson, Atty. Gen., E. G. Elliott, Thos. Y. Gwilliam, B. James Koehler, Jr., Asst. Attys. Gen., for defendants Drevlow, Middlemist and Doolittle. TAYLOR, Justice. Relators, members of the House of Representatives, as plaintiffs, made original application to this Court for a writ of mandate to compel defendants, as Chief Clerk and Speaker of the House of Representatives, and Secretary of the Senate, and the Lt. Governor as President of the Senate, all of the Thirty-fifth Session of the Idaho Legislature, to sign and present to the Governor, House Bill No. 349, as amended and passed by both houses of the legislature. Alternative writ issued. Appearing for the President and Secretary of the Senate and the Speaker of the House of Representatives, the Attorney General filed a motion to quash the alternative writ and a return thereto. Max Hanson, Chief Clerk of the House of Representatives, filed a separate return. The act in question, Sess.Laws 1959, c. 299, is entitled "Idaho Income Tax Act" and purports to be a revision of the state income tax law, intended to make the provisions of the state law "identical to the provisions of the Federal Internal Revenue Code relating to the measurement of taxable income". It is a lengthy act and contains a repeal of the existing income tax law. Idaho Code, tit. 63, c. 30, as amended. "We take judicial notice of the public and private acts of the legislature (Sec. 16-101(3) I.C.A. [I.C. § 9-101]), and the Journals of the legislative bodies to determine whether an act of the legislature was constitutionally passed and for the purpose of ascertaining what was done by the legislature. Burkhart v. Reed, 2 Idaho, Hasb., 503, 509, 22 P. 1; State v. Eagleson, 32 Idaho 280, 181 P. 935." Keenan v. Price, 68 Idaho 423, 435, 195 P.2d 662, 668. The parties on both sides recognize the applicability of the "journal entry rule." 82 C.J.S. Statutes § 83. In their pleadings they refer to and plead the journal entries of both houses. Thus, no issue of fact is raised. During its course through the house, H.B. No. 349 was amended by striking from the printed bill, page 9, line 10, of § 24, the number "3.5", and inserting in lieu thereof the number "3". The bill was passed by the house, as amended, by a vote of 44 ayes and 13 nays. In the senate other amendments were added and the bill was passed as amended, and as amended in the senate, by a vote of 33 ayes and 11 nays. Upon its return to the house that body concurred in the senate amendments and again passed the bill, as amended in the senate, by a vote of 48 ayes, 9 nays. Through oversight or error in enrolling, the house amendment was omitted, and the enrolled bill was signed by the president of the senate and the speaker of the house, and was approved by the governor, in form without the house amendment. *708 Section 24 of the act fixes the graduated tax imposed upon individuals, estates and trusts. Subsection (a) fixes the rate of the tax on the first $1,000 of taxable income. As originally introduced, this rate was stated in the bill to be 3.5 per centum. The house amendment reduced the rate to 3 per centum. Plaintiffs assume that the bill as enrolled is invalid under previous decisions of this court (Burkhart v. Reed, 2 Idaho 503, 22 P. 1; Katerndahl v. Daugherty, 30 Idaho 356, 164 P. 1017), and pray for an order requiring defendants to correctly enroll the bill to include the house amendment, and then to sign and present the corrected bill to the governor. Relying on the same authorities the defendants contend the bill as enrolled is invalid and that it cannot now be corrected, and ask the court to declare invalid both the enrolled bill and the bill as passed by the legislature. Burkhart v. Reed, supra, is not in point. There the plaintiff sought to have the court take testimony as to what occurred in the house of representatives on the closing day of the session and from such evidence find the facts, and make or correct the journal entries to conform to the facts so found. The court said: "* * * The principle of law is settled beyond controversy that a court will not go behind the journal of a legislature to ascertain what was done by that body. The journal itself is conclusive, and, if the journal is incorrect or improperly made up, it is for the legislature itself to correct it, and not for the court. The journal, as filed, purports to be the journal of the legislature. It is signed by George P. Wheeler, speaker pro tem. of the house, and would, therefore, seem to be correct on its face. The presumption always is that when an act of the legislature is signed and enrolled that it has gone through all the necessary formalities. A few of the states hold that the enrolled statute is conclusive evidence of its due passage and validity. A great majority of the states, however, hold that this makes out a prima facie case only, and that such case may be overthrown by the journals, and that the judges, for the purpose of satisfying themselves, may take judicial notice of the journal, and, if it appear to be regular, that is final and conclusive upon the courts." Burkhart v. Reed, 2 Idaho 503, 511, 22 P. 1, 4. Here the journal entries are not questioned by either party, and the court in determining the validity of the statute is not requested to make any change or correction therein. Katerndahl v. Daugherty, supra, was an action against the secretary of state seeking to compel the secretary to insert in an enrolled bill an amendment made in the senate which was omitted through error in enrolling. The court said: "Section 10 of article 4 of the Constitution reads in part as follows: `Every bill passed by the Legislature shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it, and thereupon it shall become a law; but if he did [do] not approve, he shall return it with his objections to the house in which it originated, which house shall enter the objections at large upon its journals and proceed to reconsider the bill.' Under this section of the Constitution, no bill can become a law unless it is presented to the Governor for his approval. By the agreed statement of facts the bill as amended was never presented to the Governor and therefore cannot be a law of the state. This proposition is sufficient to dispose of this case. "The question as to whether the bill as certified by the presiding officers of the two houses of the legislature, and signed by the governor, is a valid law is not presented in this case and will not *709 be decided." Katerndahl v. Daugherty, 30 Idaho 356, 358-359, 164 P. 1017, 1018. While the court refused to require the secretary of state to correct the enrolled bill by inserting therein the senate amendment, it did not declare the act, as certified by the officers of the two houses and approved by the governor, invalid. The act was published by the secretary of state as certified, Sess.Laws 1917, c. 61, and in part still subsists as recognized law. I.C. §§ 40-1603, 40-1605. The amendment omitted in that case consisted of the two words, "when completed", intended to clarify the act as to the basis of accounting between highway districts affected by the creation of a new district. The decision in effect is only that an amendment, of minor import, was lost through the enrolling error. In the case at bar the amendment is of vital importance not only to the state, but to every income taxpayer. Because of the great public importance of the issue, we have accepted original jurisdiction (Luker v. Curtis, 64 Idaho 703, 136 P.2d 978; Keenan v. Price, 68 Idaho 423, 195 P.2d 662) and, waiving questions of technical procedure, will determine the issue upon its merits. We have many times held that mere clerical errors or misprisions occurring in legislative acts will be corrected by the courts. See Roos v. Belcher, 79 Idaho 473, 321 P.2d 210, where such cases are collected on page 481 of 79 Idaho, on page 214 of 321 P.2d. The error in this case, although clerical in its origin, materially affects a vital matter of substance. See Gillesby v. Board of Com'rs of Canyon County, 17 Idaho 586, 107 P. 71. In the Gillesby case the court quoted the applicable general principle from In re Wellington, 16 Pick. 87, 33 Mass. 87, 26 Am.Dec. 631, as follows: "`That when called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.' "And this rule has been approved in this state. Wooley v. Watkins, 2 Idaho, Hasb., 590, 22 P. 100, [102]; Wright v. Kelley, 4 Idaho, Hasb., 624, 43 P. 565." Gillesby v. Board of Com'rs of Canyon County, 17 Idaho 586, 592, 107 P. 71, 72. "`It is fundamental that the judicial power to declare legislative action invalid upon constitutional grounds is to be exercised only in clear cases. * *' Los Angeles Gas & Electric Corp. v. Railroad Commission, 289 U.S. 287, 53 S.Ct. 637, 645, 77 L.Ed. 1180, at page 1194." Petition of Mountain States Telephone & Tel. Co., 76 Idaho 474, 480, 284 P.2d 681, 683. "`In the case of statutes passed by the legislative assembly and assailed as unconstitutional the question is not whether it is possible to condemn, but whether it is possible to uphold; and we stand committed to the rule that a statute will not be declared unconstitutional unless its nullity is placed, in our judgment, beyond reasonable doubt * * *. * * *' State [ex rel. Hay] v. Alderson, 49 Mont. 387, 142 P. 210, at page 212, Ann.Cas.1916B, 39." Keenan v. Price, 68 Idaho 423, 433, 195 P. 2d 662, 667. "The cardinal principle of statutory construction is to save and not destroy. State [ex rel. Graham] v. Enking, 59 Idaho 321, at page 345, 82 P.2d 649; and it is incumbent upon a court to give a statute an interpretation which will not nullify it if such construction is reasonable or possible. Intermountain Title Guaranty Co. v. Egbert, 52 Idaho 402, at page 410, 16 P.2d 390; Northern Pac. R. Co. v. Shoshone County, 63 Idaho 36, at page 40, 116 P.2d 221; Bel v. Benewah County, 60 Idaho 791, at page 796, 97 P.2d 397." Keenan v. *710 Price, 68 Idaho 423, 437, 195 P.2d 662, 670. "The same presumption which attaches in favor of the constitutionality of a statute with respect to its subject matter, * * * is indulged with respect to its form and enactment, and the burden of proof is on one who claims that a statute was not duly enacted * * *." 82 C.J.S. Statutes § 82, p. 135. State v. Gastelum, 75 Ariz. 271, 255 P.2d 203. In Rice v. Lonoke-Cabot Road Improvement Dist. No. 11, 142 Ark. 454, 221 S.W. 179, 181, the Arkansas court held valid an act creating a road improvement district, from which the enrolling clerk had omitted description of 19 sections of land from the district as set forth in the bill passed by the legislature. The governor had approved the bill as enrolled. The court said: "The chief insistence for reversal is that the bill approved by the Governor was a different bill from the bill passed by the Legislature. An enrolled bill, in Legislative parlance, is a reproduction or copy of the identical bill passed by both houses of the General Assembly. The enrolling clerk or committee has no power or authority to modify a bill passed by the General Assembly in any respect. It follows that the purpose and intention of the Governor in signing an enrolled bill, or in allowing an enrolled bill to become a law without his signature, is to approve the bill passed by both branches of the Legislature, or to acquiesce in such bill becoming a law. In approving an enrolled bill, therefore, it may aptly be said that the Governor intends to, and does, approve the original or identical bill passed by the General Assembly. For this reason additions, omissions, or misprisions of the enrolling clerk in copying the bill to be signed by the Speaker of the House and President of the Senate and to be presented to the Governor do not impair or invalidate the act. Otherwise legislation would depend entirely upon the accuracy of the enrolling clerk and care of the enrolling committee. "No rule of law is better established in this state than the rule to the effect that an enrolled bill is not conclusive of what bill was enacted. An enrolled bill may be impeached by an inspection of the original bill, indorsements thereon, journals, and other official records of the Legislature and official records in the office of the secretary of state. * * * If an enrolled bill signed by the President of the Senate and Speaker of the House is not conclusive and determinative of what bill was enacted by the General Assembly, no sound reason can be assigned why it should be conclusive and determinative of what bill the Governor approved; in other words, the additions, omissions, or misprisions contained in an enrolled bill should not bind the Governor to the letter of the copy by reason of his approval any more than the Senate and House whose President and Speaker signed it. In the case of Haney v. State, 34 Ark. 263, this court corrected a manifest and material error in an enrolled bill which had been signed by the President of the Senate and Speaker of the House and the Governor by inserting the word `fourth' for the word `fifth' so as to make the act conform to the intention of the Legislature in enacting, and the Governor in approving, it. The correction made to conform to the intention of the Legislature and Governor was material, because, unless made, the act was void." 221 S.W. at page 181. The foregoing from the Arkansas decision was quoted with approval by this court in Keenan v. Price, supra. The latter case involved the validity of a constitutional amendment. Through error, the "state auditor" had been omitted from the list of officers constituting the executive department of the state government. The state auditor was included in the title of the *711 joint resolution and in the question to be voted upon by the electorate. The auditor was omitted from the proposed amendment, as engrossed, and as published prior to the election. The court read the words "state auditor" into the amendment on the ground that the record showed the omission to be a clerical error contrary to the legislative intent and contrary to the intent of the electorate in adopting the amendment. That case differs from this in that no approval by the governor is involved in the submission to the electorate of a constitutional amendment. In case of an act of the legislature the constitution, art. 4, § 10, supra, requires that the act be presented to the governor for his approval or rejection, or to permit it to become a law without his approval. In passing upon bills presented the governor acts in a legislative capacity. His consideration thereof is an essential element of our legislative process. State ex rel. Foster v. Naftalin, 246 Minn. 181, 74 N.W.2d 249; 82 C.J.S. Statutes § 47; 50 Am.Jur., Statutes, § 96. In State ex rel. Casper v. Moore, 37 Neb. 13, 55 N.W. 299, a general appropriation bill carried an item of $15,000 for impeachment proceedings. After the bill had passed both houses, the enrolling clerk in copying the bill changed the figure to $25,000. The bill was then signed by the officers of both houses and approved by the governor. In holding that the bill made a valid appropriation of $15,000, the court said: "* * * It is now settled that this court will look into the records and journals of the two houses of the legislature to ascertain if they have complied with the constitutional provisions of the state with reference to the enactments of a law. When this is done it becomes evident that the senate did not at any time, nor did the house of representatives upon the final consideration of the bill, agree to an appropriation of $25,000, so that the act cannot be construed as an appropriation of this sum for want of concurrence of all the lawmaking branches. State [ex rel. Marlay] v. Liedtke, 9 Neb. 462, 4 N.W. 68. It is equally clear that both houses did concur in the appropriation of $15,000. This appropriation must also fail, unless approved by the governor, or by the bill's becoming a law in one of the ways provided by the constitution without his approval. The governor, by signing the bill as enrolled, expressed his approval of an appropriation of $25,000. We think that, this sum being one greater than that provided by the legislature, his approval thereof included an approval of the lesser sum. In State v. McLelland [18 Neb. 236, 25 N.W. 77] it was held that a bill creating the office of register of deeds for counties having not less than 15,000 inhabitants did not become a law because the enrolled bill as signed by the governor expressed the number of inhabitants as 1,500 instead of 15,000. The error here was in a matter of description, one essential to the merits of the bill, and the enrolled bill as signed was different in character from that passed by the legislature. In this case the error related to no matter of description, and could not have influenced the governor to approve the bill, when a correct enrollment would lead him to veto it. By giving the law this interpretation, we enforce the clearly expressed will of the people as manifested by their legislative officers. Any other conclusion would permit such clearly expressed will to be thwarted by the carelessness or dishonesty of a clerk in the enrolling rooms. It was to avoid this danger that this court adopted the doctrine that the enrolled act is only prima facie evidence of the enactment of a statute." 55 N.W. at pages 300, 301. In State ex rel. Ball v. Hall, 130 Neb. 18, 263 N.W. 400, the court upheld the validity of an item of $45,000 in the general appropriation bill, which through an enrolling error had been changed to $10,000 after the bill had passed both houses. *712 "When this bill reached the office of the governor, the mistake was detected, and the governor inserted these words when he approved the bill, `Correction Section 10, line 5½, Protection of Irrigation Rights, North Platte District, $45,000;' and, as thus amended, the governor approved the bill (Laws 1935, c. 177)." 263 N.W. at page 401. In sustaining the correction made by the governor, the court said: "In Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510, 511, Judge Sullivan said: `The journals, being the records of the legislative proceedings kept in obedience to the command of the constitution, are considered the best evidence of what affirmatively appears in them regarding the enactment of laws.' And further: `If the entries found in the journals explicitly and unequivocally contradict the evidence furnished by the enrolled bill, the former will prevail.' See State [ex rel. Douglas County] v. Frank, 60 Neb. 327, 83 N.W. 74; State [ex rel. McClay] v. Mickey, 73 Neb. 281, 102 N.W. 679, 119 Am.St.Rep. 894." 263 N.W. at page 402. In Beacon Club v. Buder, 332 Mich. 412, 52 N.W.2d 165, appeal dismissed Eight O'Clock Club v. Buder, 72 S.Ct. 1077, 343 U.S. 971, 96 L.Ed. 1366, rehearing denied 344 U.S. 848, 73 S.Ct. 6, 97 L.Ed. 659, through an enrolling error an amendment made by the legislature was omitted. The governor returned the bill rejected because of the omission. The clerk of the house thereupon corrected the bill by adding the omitted section and returned the bill to the governor, who then approved it. The court held that the first presentation to the governor was a nullity; that the clerk properly performed a ministerial duty in correcting the bill; and that on approval by the governor it became law. In State ex rel. Board of Com'rs of Laramie County v. Wright, 62 Wyo. 112, 163 P.2d 190, the court considered a bill providing for distribution of revenues derived from a gasoline tax; 23% to the several counties, 2% to the several cities and towns over 1,500 population, and the remainder to the state highway fund. Through an enrolling error, the 23% to the counties was changed to 25%. The purpose of the act was to provide financial aid to the cities which had not theretofore shared in the distribution of the tax. The governor, desiring to preserve the provision for the benefit of the cities, approved the act and returned it to the secretary of state with a letter calling attention to the error and expressing his disapproval thereof. The court sustained the act as passed by the legislature, saying: "* * * So we come back to the question as to whether it may be fairly said that the governor signed the bill as it was passed by the legislature. And in that connection we must bear in mind that every act is presumed to be constitutional; that we resolve all reasonable doubt in its favor, and that the presumption of constitutionality not only reaches the subject matter, but applies equally to the procedural requirements in the enactment of laws. 59 C.J. 622, note 39. The letter of the governor which accompanied the bill when he filed it with the secretary of state shows that he knew of the clerical error in the enrolled act." 163 P.2d at page 196. And that the circumstances "would seem to give rise to the inference or presumption that he meant to approve the act in so far as 25 percent of the aforesaid revenue was concerned — in other words that he intended to and did sign the act in so far as it constitutionally could be valid." 163 P.2d at page 196. The court supported its conclusion by reference to State ex rel. Ball v. Hall, supra, and Rice v. Lonoke-Cabot Road Improvement Dist., supra. It also compared the facts with those of State ex rel. Casper v. Moore, supra, and said: *713 "The legislation in the case at bar is in the nature of an appropriation bill, in which the rule that the greater includes the less may well be applied. And it may be that the rule of State ex rel. [Casper] v. Moore cannot be extended to any other class of cases. We do not know of any sound reason why we should dissent from the Nebraska court in this case. Mistakes do occur, and it might be found unfortunate in the future in connection with appropriation and similar bills if we should now take a position contrary to State ex rel. Casper v. Moore. And so we approve it." 163 P.2d at page 197. In its mandate, the Wyoming court directed that the word "twenty-five", "should be read `twenty-three', and as thus amended, the act should be upheld." In his letter advising of his action on the bill here in question, the governor wrote: "The Honorable Robert Doolittle Speaker of the House House Chamber Building "Dear Mr. Speaker: "I have the honor to inform you that I have approved and am transmitting to the Secretary of State House Bill No. 349. * * * * * * "It should be noted that while this bill does increase the tax rates applicable to taxable net income from 2% to 3% and 8.8% to 9.5%, the bill also increases dependency exemptions from $200 to $600 and adds substantial business benefits * * *." Permanent House Journal, 35th Session of the Legislature, page 873. From this communication it appears that the governor knew the bill as passed by the legislature provided for a rate of 3%, not a rate of 3.5%. It is therefore obvious that his approval was of the 3% rate and not of the 3.5% rate. As said by the Wyoming court, it is to be presumed that the governor approved only what he could constitutionally approve, that is, the bill as passed by the legislature. He did not, and could not, approve the 3.5% rate, erroneously copied into the bill by the enrolling clerk. The governor's approval of the bill as passed by the legislature is also shown by his endorsement of approval thereon as follows: "This bill as amended as amended in the senate received by the Governor on the 13th day of March, 1959, at 10:45 a. m., o'clock and approved on the 19th day of March, 1959, at 2 p. m., o'clock. "/s/ Robert E. Smylie "Governor" The governor's letter to the speaker of the house, as spread upon the house journal, and his endorsement on the enrolled bill as filed in the secretary of state's office, are official documents of which this court may take judicial notice. Keenan v. Price, supra. It is these records of the governor's official action which distinguishes this case from Katerndahl v. Daugherty, supra. In that case there was nothing to show that the governor did not approve the bill as enrolled. In this case the record conclusively shows that all three of the divisions of legislative power — the house, the senate, and the governor — approved the house amendment and made it a part of the act. The attorney general contends that since the question as put for the final vote on the bill in the house did not include the phrase "as amended" — intended to refer to the house amendment — the house did not vote on the bill as previously amended by the house. In the oral argument the attorney general further contended that the omission of the phrase may have led the house enrolling clerk to assume that the house amendment had been rejected by the senate. Neither contention has merit. The vote on the question as put cannot be construed as a vote to strike the amendment already made by the house, or to further amend the bill. Moreover, the endorsements on the bill made by the speaker of the house and by the chief clerk of the house, both refer to the house amendment as a part of the *714 bill. These responsible officers of the house, defendants here, knew that the house amendment was a part of the bill as passed by the senate. Also, the endorsement by the defendant Drevlow, as president of the senate, refers to the house amendment as a part of the bill. It follows that the bill was constitutionally enacted as amended by the house, and that the act, now Sess.Laws 1959, c. 299, is valid and that subsection (a) of § 24 thereof provides: "(a) On the first $1,000 of such taxable income or any part thereof, at the rate of 3 per centum;" and is to be so applied as the law of the state. This disposition of the case makes the writ of mandate prayed for unnecessary, hence we do not rule upon the issues attendant upon the procedure sought by the petition. Accordingly the permanent writ is denied, and the application is dismissed. PORTER, C. J., and SMITH, KNUDSON and McQUADE, JJ., concur.

456 So.2d 269 (1984) BRINDLEY CONSTRUCTION CO., INC. v. BYCO PLASTICS, INC. 83-194. Supreme Court of Alabama. July 27, 1984. Rehearing Denied September 21, 1984. *270 Rodney B. Slusher, of Peck, Slusher & Bunch, Florence, for appellant. Jimmy E. Alexander, of Alexander, Corder & Plunk, Athens, for appellee. JONES, Justice. This appeal is from a judgment based on an original claim for breach of contract, resulting in a jury verdict for Plaintiff/Appellee Byco Plastics, Inc., in the sum of $8,036.54 against Boatwright-Littrell Constructors, Inc.,[1] and Brindley Construction Company. Additionally, the jury returned a verdict of $2,500 on a fraud count (added by amendment) against both corporate Defendants. Following a denial of post-judgment motions, Brindley appeals. We affirm conditionally. FACTS In the spring of 1981, Brindley entered into subcontractual agreements with Boatwright-Littrell for the construction of several apartment complexes. Cabinet tops for two of the complexes were purchased by Boatwright-Littrell from Byco. Because of the insolvency of Boatwright-Littrell, a trust account was established in July 1981, whereby monies owed by Brindley to Boatwright-Littrell were deposited in a trust account to be disbursed to Boatwright-Littrell's creditors. Byco was not a party to the agreement and was not made aware of the agreement until later. In November 1981, Boatwright-Littrell owed Byco $7,572.93 and Byco refused to deliver more counter tops until payment was received. Byco claimed that a $3,000 payment was received as the result of a telephone conversation between Mr. Tapscott of Byco and Mr. Brindley of Brindley Construction. Also, Tapscott claimed that Brindley said he would see that Byco received the money owed it, and that, in the future, Brindley wanted to receive copies of the invoices Byco sent to Boatwright-Littrell. Byco subsequently sent a copy of each invoice to Brindley. Ricky White, an accountant for Brindley, testified that on November 5, 1981, Fred *271 Littrell of Boatwright-Littrell called him and said that his company needed some materials for cabinets, that the company account for Byco was past due, and that Byco would not release the materials without payment. White also said that as of November 5 neither he, nor anyone else at Brindley, knew that Boatwright-Littrell was purchasing its cabinet tops from Byco and that its account was past due. White later contacted Tapscott at Byco and asked him if his company would release the materials to Boatwright-Littrell upon payment of $3,000. Byco consented to the payment, which was later authorized by White. Byco filed suit against Fred Littrell, individually, Boatwright-Littrell Constructors, Inc., Brindley Construction Company, and Robert Brindley, individually, alleging that the Defendants owed Byco $7,936.85 due by open account and for goods sold and delivered to the Defendants. By amendment, Byco claimed fraud against each Defendant. At the close of Plaintiff's case, the trial court granted Fred Littrell's motion for a directed verdict. The jury then resolved the claims for open account, for goods sold and delivered, and for fraud against both corporate Defendants and in favor of the individual Defendant Robert Brindley. ISSUES The ultimate question presented is whether the alleged agreement by Brindley Construction to pay Byco for the cabinet tops, not being in writing, is unenforceable as violative of the Statute of Frauds. In determining that issue, we must decide whether the evidence supports a finding that either (1) both Brindley and Boatwright-Littrell were initially liable for the debt incurred to Byco; or (2) whether a new consideration passed to Brindley from Byco. The parties agree that either situation would remove the obligation from the purview of the statute of frauds, thus validating the jury verdict of enforceability. DECISION The evidence of record is uncontradicted that the alleged agreement to pay the indebtedness to Byco was oral. Code 1975, § 8-9-2, states that every promise to answer for the debt of another is void unless in writing and signed by the party to be charged. To this rule, however, there are "exceptions."[2] "`A party may make a valid oral contract, which operates to create a new debt of his own, if founded on a new and independent consideration, though the effect of the payment is to pay another's debt. In order, however, to have this effect, the essence of the new undertaking must be the payment of the promisor's own debt, by paying the debt of a third person.'"Herrington v. Central Soya Co., 420 So.2d 1, 3 (Ala.1982), citing Clark & Wadsworth v. Jones, 85 Ala. 127, 130 [4 So. 771] (1887). This distinction between "original" and "collateral," focusing on the nature of the promise made, is addressed in Lankford v. Rucker, 396 So.2d 105, 108 (Ala.Civ.App. 1981), quoting from Toles v. Cook & Sons Lumber Co., Inc., 370 So.2d 1047, 1049 (Ala.Civ.App.1979): "`In order to determine whether a promise is collateral, and thus within the statute of frauds, or original and not within the statute, a determination must be made as to whom the credit is actually given. If the credit is given solely to the promisor, although the goods are delivered to another, then the promise is original and not one of guaranty and not within the Statute of Frauds.'" (Emphasis in Lankford.) Lankford continues: "If such credit is extended simultaneously to both the promisor and the debtor, then the promisor's promise may also be deemed an `original' promise." *272 In Riteway Machine & Manufacturing Co. v. First National Bank of Tuscumbia, 374 So.2d 1361 (Ala.1979), the plaintiff repaired the debtor's sawmill equipment after the defendant bank assured plaintiff that the repair bill would be paid by the bank. This Court reversed the order granting a directed verdict for the defendant bank, stating that the determinative issue was to whom the promisee extended the credit. "If the promisee extended credit to the promisor, then the promisor is not being asked to answer for the debt of another, and it is immaterial that the goods were delivered to ... someone other than the promisor. If that be the case, then the requirement that the promise be written is not applicable." 374 So.2d at 1370 (emphasis original). We are not entirely clear from our examination of the record before us as to the precise details of how the account between Byco and Boatwright-Littrell in November 1981, after being reduced by $3,000 paid by Brindley from the trust account, reached a new balance of $7,936.85 at the time of trial. This much, however, is apparent: The Boatwright-Littrell account of $7,572.93 was reduced to $4,572.93 by the $3,000 payment. Subsequent transactions between Byco and Brindley increased that balance to the amount claimed in the suit, $7,936.85. The evidence supports a finding that the amount of the increase between the original balance after the $3,000 payment, and the total balance of the account at the time of the suit, resulted from the direct dealings between Byco and Brindley. Consequently, this difference of $3,363.93 is the original debt of Brindley, and is unrelated to the payment of a debt of another. On the other hand, we find no evidence to support either of the exceptions to the Statute of Frauds referred to above with respect to the initial obligation between Byco and Boatwright-Littrell. In other words, any claim for the $4,572.92 balance remaining after Brindley's $3,000 payment to Byco is within the Statute of Frauds and is unenforceable. We find no merit in Appellant's allegation of error with respect to the $2,500 award on the fraud claim. The jury's finding that Brindley's misrepresentation relating to Byco's delivery of the cabinet tops resulted in substantial actual damages is warranted by the evidence. The presumption in favor of the jury award is strengthened by the trial court's denial of a new trial on a "weight of the evidence" ground. Carroll Kenworth Truck Sales, Inc. v. Leach, 396 So.2d 1044 (Ala.1981). Accordingly, we affirm the judgment below on the condition that the Appellee file with the Clerk of this Court, within fourteen days of the date of this Court's certificate of judgment, a remittitur in the amount of $4,672.61, thereby reducing the total judgment to $5,863.93, plus the legal rate of interest on the sum of $3,363.93 from the last date of delivery of the goods. AFFIRMED CONDITIONALLY. TORBERT, C.J., and MADDOX, SHORES and BEATTY, JJ., concur. NOTES [1] Boatwright-Littrell filed no post-judgment motions and is not a party to this appeal. [2] The two situations referred to earlier (i.e., original debt and new consideration), in the strictest sense, are not exceptions to the Statute of Frauds. Rather, they are factual situations that do not invoke the operative effect of the rule's proscription.

http://www.va.gov/vetapp16/Files4/1630498.txt Citation Nr: 1630498 Decision Date: 07/29/16 Archive Date: 08/04/16 DOCKET NO. 11-23 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 10 percent, for the period prior to May 1, 2014, and a compensable evaluation thereafter, for bilateral hearing loss, to include whether the reduction from 10 percent to noncompensable, effective May 1, 2014, was proper. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Mark Lippman, Attorney WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active service from June 1967 to October 1969. These matters came before the Board of Veterans' Appeals (Board) on appeal from July 2009 and February 2014 decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Atlanta, Georgia and St. Petersburg, Florida. The appeal was previously before the Board in March 2016 when it was remanded for the Veteran to be afforded a hearing before a Veterans Law Judge of the Board. The Veteran and his spouse testified at a hearing before the undersigned in June 2016. A transcript of the hearing has been associated with the claims file. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the issue of entitlement to TDIU has been raised by the Veteran and his representative; therefore, the issue is added to the issues on appeal. In the Veteran's claim dated in March 2009 the Veteran requested a higher evaluation for tinnitus. To date this issue has not been adjudicated by the RO. Therefore, it is referred to the RO for consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the claims file reveals VA treatment records dated to December 2010 and from June 2011 to December 2015. It is unclear whether complete VA treatment records regarding the Veteran dated prior to June 2011 have been obtained and associated with the claims file. In addition, treatment records dated since December 2015 have not been obtained and associated with the claims file. Thus, on remand attempts must be made to obtain and associate with the claims file complete VA treatment records regarding the Veteran dated prior to June 2011 and since December 2015. 38 C.F.R. § 3.159 (2015). At the hearing, the Veteran and his representative referred to a letter from the Veteran's treating doctor reporting that the VA medical examination results were inconsistent with her results that they say was submitted in January 2015. Review of the claims file does not reveal a copy of this letter. Thus, on remand, attempts must be made, to include contacting the provider, the Veteran, and the Veteran's representative, to obtain a copy of the letter and associate it with the claims file. Id. The most recent VA examination evaluating the Veteran's PTSD disability was performed in November 2011. At the hearing before the undersigned, the Veteran and the Veteran's spouse gave testimony as to how the disability was affecting his life and how things have gotten a little worse. Therefore, the Board finds that it must remand the claim to obtain a contemporaneous VA examination to assess the current nature, extent and severity of his PTSD disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). At the hearing the Veteran reported that his hearing had gotten worse. Thus, the Board finds that it must remand the claim obtain a contemporaneous VA examination to assess the current nature, extent and severity of his hearing loss disability. Id. Finally, the Veteran contends that his service-connected disabilities prevent employment. A letter from the Social Security Administration reveals no significant earnings after 2004. A current opinion as to the effect of all the Veteran's service-connected disabilities on his employability has not been obtained and such is necessary to decide his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file complete VA treatment records regarding the Veteran dated prior to June 2011 and since December 2015. Ask the Veteran about the existence of any non-VA treatment records. After obtaining any necessary authorization, request any reported records. 2. Contact the Veteran, the Veteran's representative, and, after obtaining any necessary authorization, the appropriate provider, to obtain and associate with the claims file the January 2015 letter identified by the Veteran and his representative at the June 2016 hearing. 3. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature, extent and severity of his PTSD and hearing loss disabilities. The claims file and copies of all pertinent records should be made available to the examiners. All indicated tests should be performed. The examiners are requested to delineate all symptomatology associated with, and the current severity of the disabilities. The appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose, if possible. 4. Schedule the Veteran for a VA examination with regard to the Veteran's claim for a TDIU to obtain an opinion regarding whether the Veteran's service-connected disabilities have affected his ability to work by assessing his occupational impairment, if any. Specifically, the examiner is asked to comment as to the functional impairment or limitations imposed by each of the Veteran's service-connected disabilities (PTSD; residuals of shell fragment wound, left cornea with headaches; tinnitus; and hearing loss). In doing so, the examiner is asked to take the Veteran's level of education, special training, and previous work experience into consideration, but disregard the Veteran's age or any impairment caused by nonservice-connected disabilities. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).

313 F.Supp. 1271 (1970) Billie Bess PETETE, Plaintiff, v. CONSOLIDATED FREIGHTWAYS, Defendant. Civ. A. No. 3-3813-B. United States District Court, N. D. Texas, Dallas Division. June 5, 1970. Opinion June 17, 1970. No argument was presented or appearance made by attorney for defendant. ORDER APPOINTING COUNSEL HUGHES, District Judge. On this the 5th day of June, 1970, came to be considered the motion of plaintiff in the above entitled case for appointment of an attorney. The Court notes from the affidavit accompanying plaintiff's motion that plaintiff, while not a pauper, is without sufficient funds to hire an attorney and that plaintiff's repeated good faith efforts to obtain the services of an attorney on a contingent fee basis have failed — due at least in part to the complex nature of a lawsuit brought under Title VII of the Civil Rights Act of 1964. Inasmuch as plaintiff's complaint does not appear to be frivolous, the Court finds plaintiff's motion for the appointment of counsel to be meritorious and by its discretionary authority under 42 U. S.C. § 2000e-5(e), orders that: (1) Linda N. Coffee, Attorney at Law, 2130 First National Bank Building, Dallas, Texas, be appointed to represent plaintiff in this action; (2) as a condition of this appointment and pursuant to a suggestion offered by plaintiff in her motion, plaintiff sell her shares of Freedom Fund, Inc. and deposit the proceeds with the Court to be applied against court costs, expenses in litigation and attorney's fees, if any, with the provision that any amount of such funds not exhausted at the conclusion of this action be returned to plaintiff. MEMORANDUM OPINION On May 5, 1970, plaintiff filed her complaint in the present action, alleging that defendant had subjected her to sexually discriminatory hiring practices in violation of Title VII of the Civil Rights Act of 1964. On the same day she filed a motion for appointment of an attorney. In the affidavit supporting her motion, plaintiff stated that, while not a pauper, she was without funds sufficient to both hire an attorney and to continue to provide herself with the bare necessities of life. Plaintiff also stated in her affidavit that she had been unsuccessful *1272 on several occasions in attempting to obtain the services of an attorney on the contingent-fee basis — due apparently in part to the complex nature of a lawsuit brought under Title VII. Section 706(e) of Title VII authorizes the Court to appoint counsel "in circumstances [it] may deem just". On the basis of the facts presented in the affidavit, and, inasmuch as plaintiff's complaint does not appear to be frivolous, the Court is of the opinion that plaintiff's motion should be granted. Unquestionably, plaintiff's request for the appointment of counsel has particular significance because she has filed her complaint under Title VII of the Civil Rights Act of 1964. Title VII is the statutory embodiment of a strong national policy against discrimination in employment. Culpepper v. Reynolds Metals Company, 421 F.2d 888 (5 Cir. 1970); Jenkins v. United Gas, 400 F.2d 28 (5 Cir. 1968). It follows that plaintiff's motion for appointment of counsel should not be denied merely because she is not entirely destitute.[1] Smith v. Fleming (Order Granting Plaintiff's Motion for Appointment of Counsel, Filed July 17, 1969) (W.D.Mo.1969). This is particularly true since plaintiff has, as represented in her affidavit, been unsuccessful on several occasions in attempting to secure the services of an attorney on a contingent-fee basis. Further complicating plaintiff's problem has been the reluctance of the attorneys she has approached to undertake the specific and complex challenges of a Title VII lawsuit which are not common to more frequently litigated areas of the law. The Court concludes that, in light of the difficulties confronting plaintiff and because the suit is laden "with heavy overtones of public interest",[2] the facts presented more than warrant the appointment of counsel. Cf. Edwards v. duPont (Order Denying Motion to Reconsider Appointment of Attorney, Filed May 27, 1970) (D.Kan.1970). An order has been entered accordingly. NOTES [1] In her motion plaintiff has volunteered to contribute toward the expense of the lawsuit the proceeds from certain stocks she presently holds. By divesting herself of what she represents in her affidavit to be the only assets she possesses which are not devoted to the object of providing bare necessities of life, plaintiff greatly facilitates the granting of her motion. It is unnecessary for this Court to determine whether plaintiff's maintenance of modest savings or their equivalent would have served as a bar to appointment of counsel under Section 706(e). [2] Jenkins v. United Gas, supra, 400 F.2d at 33.

IN THE SUPREME COURT OF PENNSYLVANIA OFFICE OF DISCIPLINARY COUNSEL, : No. 2238 Disciplinary Docket No. 3 : Petitioner : No. 46 DB 2014 : v. : Attorney Registration No. 15643 : MICHAEL P. BOLNO, : (Delaware County) : Respondent : ORDER PER CURIAM AND NOW, this 26th day of January, 2016, upon consideration of the Certificate of Admission of Disability by Attorney, Michael P. Bolno is immediately transferred to inactive status for an indefinite period and until further Order of the Court per Pa.R.D.E. 301(e), and he shall comply with all of the provisions of Pa.R.D.E. 217. All pending disciplinary proceedings shall be held in abeyance except for the perpetuation of testimony and the preservation of documentary evidence. Mr. Justice Eakin did not participate in the consideration or decision of this matter. 

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 22 1999 TENTH CIRCUIT PATRICK FISHER Clerk FATENA DAHDAL, Plaintiff-Appellant, No. 98-3162 v. (D.C. No. 97-2119-GTV) (Kansas) THORN AMERICAS, INC., Defendant-Appellee. ORDER AND JUDGMENT * Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges. 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)(2); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. Fatena Dahdal appeals from the judgment entered by the district court in * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. favor of Thorn Americas, Inc. on a jury verdict in her Title VII action against the company. Ms. Dahdal, acting pro se, contends the district court made a number of trial errors including permitting improper testimony from a psychologist testifying for the defendant and improper closing argument by defendant’s attorney, failing to sanction defendant’s corporate representative, giving erroneous jury instructions, failing to submit punitive damages correctly, and refusing to set aside the jury verdict. Appellate review of any of these issues requires a review of the trial transcript, which Ms. Dahdal has failed to provide. Under these circumstances, we have no choice but to affirm the judgment of the district court. See Deines v. Vermeer Mfg. Co., 969 F.2d 977, 979 (10th Cir. 1992) (citing cases). 1 AFFIRMED. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge 1 We grant defendant’s motion to supplement the record and deny defendant’s motion to dismiss the appeal on various grounds. -2- 

28 Cal.App.2d 522 (1938) HARRY CARLETON COFFIN, Jr., a Minor, etc., Respondent, v. WILLIAM BLOODWORTH et al., Appellants. Civ. No. 11566. California Court of Appeals. Second Appellate District, Division One. September 22, 1938. Lorrin Andrews for Appellants. John E. Martin for Respondent. Doran, J. This is an appeal by defendants in an action for damages. The plaintiff and respondent, while in the employ of appellants, undertook to replace an electric light bulb on the roof of appellants' service station, and while doing so fell to the ground, a distance of about sixteen feet. Certain injuries sustained as a result of the fall, together with the alleged negligence of appellants, are the basis of the action herein. Appellants at the time of the accident had neither compensation insurance nor a "certificate of consent to self-insure" from the Industrial Accident Commission, as provided by the workmen's compensation laws. Plaintiff recovered judgment, from which defendants appeal. [1] It is contended by appellants that the superior court was without jurisdiction to try the case because compensation had been fully paid at the time of the bringing of the suit. Such contention is based on the fact that appellants fully compensated plaintiff for hospital and doctor bills and for all medical and surgical treatment required as a result of the accident, as well as for wages in full during total disability and for wages in part during partial disability, which it is pointed out by appellants more than meets the requirements of the Workmen's Compensation Act. It is argued in that connection that: "Jurisdiction of the superior court to try claims of an employee against his employer for damages arises only when the compensation is unsecured and that compensation must be unsecured at the time the action is filed, since the jurisdiction *524 of a court is acquired when the complaint is filed. (See Code Civ. Proc., sec. 416.)" "It is, therefore, respectfully submitted that, although at the time the respondent was injured, his compensation was at that time unsecured, nevertheless it was paid in full before the action in the superior court was filed, and the need for it being secured by reason of it having been paid in full, no longer existed. These conditions removed from the superior court all grounds of jurisdiction under the statute." The foregoing argument is untenable. The test of the jurisdiction of the superior court under such circumstances is to be found in the Workmen's Compensation Act, wherein it is provided, in section 29 thereof: "A. Every employer, as defined in section 7 hereof, except the state and all political subdivisions or institutions thereof, shall secure the payment of compensation in one or more of the following ways: (1) By insuring and keeping insured against liability to pay compensation in one or more insurance carriers duly authorized to write compensation insurance in this state. (2) By securing from the Commission a certificate of consent to self-insure, which may be given upon his furnishing proof satisfactory to the Commission of ability to carry his own insurance and pay any compensation that may become due to his employees. ..." "If any employer shall fail so to secure the payment of compensation, any injured employee or his dependents may proceed against such employer by filing an application for compensation with the Commission, and in addition thereto such employee or his dependents may bring an action at law against such employer for damages the same as if this act did not apply. ..." Thus it will be seen that the defendants, having failed to "secure the payment of compensation" and having failed to "secure from the Commission a certificate of consent to self-insure", are therefore subject to the provisions of the act last above mentioned which vests the superior court with jurisdiction. The phrase "secure the payment of compensation" has reference to the time before a contingency arises that requires the payment of such compensation and not, as contended by appellants, the actual payment thereof. Appellants' further contentions that the damages awarded are contrary to the law and the evidence and that the presumption *525 of negligence placed upon the defendants by the statute was overcome by the overwhelming weight of evidence, are without merit. The findings of fact are abundantly supported by the evidence. [2] Finally it is contended that a motion for a new trial based on newly discovered evidence should have been granted. Said motion was supported by six affidavits, four of which were executed by witnesses who had testified at the trial. A fifth was executed by one of appellants' attorneys, and the sixth by an individual who was present in the courtroom during the trial. These affidavits were contradicted by affidavits filed in support of plaintiff. The question raised by the motion was addressed to the sound discretion of the trial court, and there appears to be no reason why its decision should be disturbed. For the foregoing reasons, the judgment is affirmed. York, P. J., and White, J., concurred.

San Antonio Police Department /s Fourth Court of Appeals San Antonio, Texas February 18, 2015 No. 04-15-00068-CV John M. DONOHUE, Appellant v. SAN ANTONIO POLICE DEPARTMENT, et al, Appellee From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-12457 Honorable Laura Salinas, Judge Presiding ORDER On February 6, 2015, appellant filed a notice of appeal in this court from the trial court’s January 8, 2015 judgment. On that same day, and also in this court, appellant filed an affidavit of inability to pay costs in this court. It appears appellant did not file his affidavit in the trial court. We have forwarded both to the district clerk. A party who cannot pay the costs of an appeal must file an affidavit of indigence “in the trial court with or before the notice of appeal.” TEX. R. APP. P. 20.1(c)(1). Appellant’s affidavit was therefore due in the trial court on February 6, 2015, the date his notice of appeal was filed. See id. R. 20.1(c)(1). We order the clerk of this court to send copies of the affidavit and this order to the trial court clerk, the court reporter, and all parties. See id. R. 20.1(d)(2). We further order the deadline for filing a contest to the affidavit of indigence is March 2, 2015. Any contest must be filed in this court. See id. R. 20.1(e)(1). _________________________________ Marialyn Barnard, Justice  IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 18th day of February, 2015. ___________________________________ Keith E. Hottle Clerk of Court 

10 F.3d 13 304 U.S.App.D.C. 35 NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.In re Sylvester JONES, Petitioner. No. 92-8011. United States Court of Appeals, District of Columbia Circuit. Sept. 17, 1993. Before STEPHEN F. WILLIAMS, SENTELLE and KAREN LeCRAFT HENDERSON, Circuit Judges. ORDER PER CURIAM. 1 Upon consideration of the motion for leave to proceed in forma pauperis and the petition for writ of mandamus, it is 2 ORDERED that the motion for leave to proceed in forma pauperis be granted. It is 3 FURTHER ORDERED that the petition for writ of mandamus be denied. Petitioner has failed to demonstrate that his right to the relief sought is clear and indisputable. See Kerr v. United States District Court, 426 U.S. 394, 403 (1976); In re Thornburgh, 869 F.2d 1503, 1507 (D.C.Cir.1989). The pleadings at issue did not meet the conditions of the district court's September 27, 1991 order requiring petitioner to obtain leave of court before filing any new action. Accordingly, petitioner has not established a right to relief against the named respondents. See Panko v. Rodak, 606 F.2d 168, 169 (7th Cir.1979), cert. denied, 444 U.S. 1081 (1980). The filing of a motion to proceed in forma pauperis is not sufficient to meet the requirements of the court's order. 4 The Clerk is directed to enter the petition for writ of mandamus on the court's general docket.

228 Cal.App.2d 355 (1964) THE PEOPLE, Plaintiff and Respondent, v. GARY RICHARD FRANCISCO, Defendant and Appellant. Crim. No. 3496. California Court of Appeals. Third Dist. July 7, 1964. Harry A. Ackley, under appointment by the District Court of Appeal, for Defendant and Appellant. Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Daniel J. Kremer, Deputy Attorney General, for Plaintiff and Respondent. PIERCE, P. J. Defendant appeals from judgment (with sentence to a state prison term) following a court conviction of the crime of escape under Penal Code section 4532, a felony. His contentions on appeal are (1) that there was no evidence proving a necessary element of the offense charged; (2) that he had no trial on the issue of his guilt; and (3) that he was inadequately represented by appointed counsel. We sustain the first contention, disallow the other two. Defendant was arraigned under an information stating in part: "The said Gary Richard Francisco is accused by the District Attorney of Butte County, by information, found this 11th day of June, 1963, of the crime of violation of the provisions of section 4532 of the Penal Code of the State of California, committed as follows: The said Gary Richard Francisco did on or about the 23d day of May, at Butte County and State of California, and before the filing of this information, wrongfully, wilfully, and unlawfully, while being confined in the Butte County Jail, after having been convicted of violation of sections 484-488 of the Penal Code, escape from the Butte County Hospital, while awaiting treatment; all of which is contrary. ..." (Italics supplied.) Defendant was arraigned, asked for and was assigned counsel to represent him, and pleaded not guilty. [fn. 1] When the case was called for trial a jury was waived and the defendant *357 and prosecuting attorney stipulated that the matter be tried upon the transcript of the evidence taken at the preliminary hearing before the committing magistrate. It was solely upon this evidence that the superior court made its determination of guilt. The transcript showed (through the testimony of Deputy Sheriff Horrell) that defendant and another "prisoner" had been taken by Horrell from the Butte County Jail to the county hospital for treatment. Left unattended briefly defendant departed from the building and ran out onto the grounds. Horrell gave chase, called to defendant to stop and fired two warning shots. Defendant stopped and was apprehended. There was no proof that defendant had been convicted of petty theft as charged in the information; nor was there proof that he had been convicted of any other misdemeanor; nor was there proof that he had been arrested, booked or charged with any other misdemeanor. Section 4532 of the Penal Code then provided (and now provides) in part: "Every prisoner arrested and booked for, charged with, or convicted of a misdemeanor who is confined in any county ... jail ... or who is in the lawful custody of any officer or person ... and who thereafter escapes or attempts to escape ... is guilty of a felony. ..." The absence of proof of imprisonment was noted by the committing magistrate. The district attorney made no effort to supply the deficiency by submission of the record of the charged petty theft conviction or otherwise. He stated he considered sufficient the testimony of the officer that he had had charge of the prisoners and was taking them from the jail to the hospital, plus the disputable presumption that an official duty was being lawfully performed. When this was stated, the magistrate, addressing defendant's counsel (who also represented him at the trial), asked, "Is that agreeable with you?" to which the attorney replied, "I am certainly not going to stipulate to it, Your Honor." Nevertheless, the omission was neither remedied then nor was the evidence supplied when the proceedings were had in the superior court. (There is in the transcript of the preliminary hearing a conversation between the magistrate and defense attorney in which the former, speculating upon the matter of possible release on bail, asked whether defendant was still serving *358 sentence. The attorney replied he "understood" that he was.) As shown above, the elements of the crime of escape under Penal Code section 4532 are: (1) That the accused had been either arrested and booked for, or charged with, or convicted of, a misdemeanor; (2) That he had been either confined in jail, or placed in the lawful custody of an officer; (3) That under conditions (1) and (2) he escaped, or attempted escape, from said jail or custody. [1] It is elementary that "[i]n every prosecution for crime, it is necessary to establish the corpus delicti, i.e., the body or elements of the crime." (1 Witkin, Cal. Crimes, 88, p. 84.) [2] The burden is upon the prosecution to prove beyond reasonable doubt every essential element of the crime of which the defendant is charged. (People v. Borchers, 50 Cal.2d 321 [325 P.2d 97].) It has also been held that a person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information. (People v. Feldman, 171 Cal.App.2d 15, 23 [339 P.2d 888].) In the early case of People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190], it was held that a departure from an unlawful imprisonment or custody is not an escape. The rule of Ah Teung was followed in People v. Clark, 69 Cal.App. 520, 522 [231 P. 590]. In People v. Hinze, 97 Cal.App.2d 1, however, the majority of this court (with Justice Peek dissenting) said, on page 5 [217 P.2d 35], that "it does not follow that a person who has been wrongfully imprisoned may always free himself therefrom with impunity." And the court distinguished between an imprisonment without any process and wholly without authority of law and imprisonment under a process which is simply irregular in form. (See also People v. Armstrong, 188 Cal.App.2d 745, 749 [10 Cal.Rptr. 618].) There was here, of course, evidence that while defendant was in custody he departed. There was, however, no direct proof whatever that such custody was under any color or process. The Attorney General cites People v. Quisenberry, 151 Cal.App.2d 157 [311 P.2d 99], a prosecution for the taking of an automobile without the owner's consent. The taking was during the course of an attempt by defendant to escape from juvenile hall. Objection was made to the admission of evidence *359 of the escape as constituting a totally different offense. Answering the contention the court stated on page 164: "Appellant is presumed to have been held lawfully by the prison in which he was confined." And the court cited in support of that statement section 1963 of the Code of Civil Procedure, subdivision 15, creating a disputable presumption "That official duty has been regularly performed," and subdivision 33, "That the law has been obeyed." Also cited was People v. Citrino, 46 Cal.2d 284, 287 [294 P.2d 32]. The Attorney General relies upon that case and also upon People v. Armstrong, supra, 188 Cal.App.2d 745, as supporting his proposition that the presumption that custody is lawful extends also to a presumption that imprisonment was by color of process. These cases do not furnish that support. Lawful custody is one element of the statutory crime of "escape"; imprisonment as the result of a misdemeanor "arrest and booking," "charge," or "conviction" is another. The assumption that because a man is in lawful custody it is for one of these three causes is a non sequitur. (He may, for example, be in lawful custody as a material witness (Pen. Code, 881), or under a contempt order, or for alleged insanity, or for narcotic addiction.) The two cases cited by the Attorney General will illustrate this distinction. In Quisenberry, supra, the defendant had not been charged with an escape and proof of the escape was not an element of the crime. Moreover, there had been proof of imprisonment under process. In Armstrong, supra, the facts were similar to the facts here in all save one significant respect. There the defendant had escaped while being taken to a hospital by an officer. But there (unlike the case at bench) proof had been made that a misdemeanor sentence was being served by the defendant at the time of the escape. Indeed, the court's opinion starts with the statement (on p. 747): "Defendant was convicted of a misdemeanor and was sentenced to one year in the Ventura County Jail." The only case to which we have been referred where there is a relaxation of strict compliance with the rule requiring proof of every element of the crime charged is People v. Peters, 96 Cal.App.2d 671 [216 P.2d 145]. There it was contended that the prosecution in a manslaughter case had not sufficiently proved that death had been caused by a knife wound inflicted by defendant. (On cross-examination of defendant in which he had demonstrated how the stabbing took place, the district attorney had made the unchallenged statement: *360 "And you stuck this rather dull knife into him, sufficiently deep to kill him." (P. 676.) Elsewhere there was general assumption throughout the trial that death was so caused.) It was stated on page 676: "In a criminal case a defendant is not called upon to make explanation, to deny issues expressly (his plea of not guilty does that for him), nor is he required to point out to the prosecution its failure to make a case against him or to prove any link in the required chain of guilt. On the other hand, he cannot mislead the court and jury by seeming to take a position as to the issues in the case and then on appeal attempt to repudiate that position." The court held that defendant had conceded the cause of death. No such concession was made here. As shown above, the defendant expressly refused to stipulate as to his imprisonment. The prosecuting attorney, having been thus put on notice, still did not put in evidence of the necessary element of the offense. [3] Under the circumstances, we do not consider that the fact that a "sentence" (the nature of which was not disclosed) was mentioned by the court in discussing the matter of bail with counsel constituted a waiver by defendant of the necessity of proof. [4] We hold that the presumption that an official duty has been regularly performed while sufficient to establish that a defendant was in legal custody is insufficient to prove that he was either arrested and booked, charged with, or convicted of, a misdemeanor, a necessary element of the crime of escape under Penal Code section 4532, a felony. There are two reasons why this rule is salutary: First, the contrary rule urged by respondent would be the piling of presumption upon presumption to the end of abrogating the most cherished presumption in our system of jurisprudence, namely, that a man is innocent of a charged crime until proved guilty beyond reasonable doubt. Secondly, it would place a premium upon the district attorney's indolence. [fn. 2] Any relaxation of a rule requiring proof of the corpus delicti would be dangerous precedent. Since the holding above requires reversal, no extended discussion *361 of defendant's other contentions is necessary. The contention that defendant had no trial (made by him in pro. per.) cannot be sustained. [5] A trial by jury may be waived. (In re Baird, 150 Cal.App.2d 561 [310 P.2d 454, 68 A.L.R.2d 628].) [6] Also the right of confrontation may be waived and the case tried by stipulation upon evidence taken at the preliminary hearing. (People v. Sola, 200 Cal.App.2d 593 [19 Cal.Rptr. 327].) [7] Defendant's other contention, that he was inadequately represented (this contention also having been made in pro. per.), is also without merit. Our examination of the record shows his attorney properly and adequately cross-examined the prosecution witnesses, and there is no showing that any evidence in defendant's favor was not brought before the magistrate or before the court. The attorney's protection of defendant's right to require the prosecution to prove all essential elements of the crime charged has been a material factor in the success of this appeal. A defendant who is indigent is entitled to effective aid by competent counsel; but, as stated in People v. Ibarra, 60 Cal.2d 460, at page 464 [34 Cal.Rptr. 863, 386 P.2d 487]: "To justify relief on this ground 'an extreme case must be disclosed.' [Citations.] It must appear that counsel's lack of diligence or competence reduced the trial to a 'farce or a sham.' [Citations.]" Here we find neither "extreme" nor any inadequacy of representation. The other error found, however, was material. The judgment is reversed. Schottky, J., and Friedman, J., concurred. NOTES [fn. 1] 1. Defendant also pleaded not guilty by reason of insanity. He was examined by psychiatrists appointed by the court; a jury trial was waived; it was stipulated that the reports of the psychiatrists could be considered; the taking of other evidence was waived; and the court found the defendant legally sane. [fn. 2] 2. If, as has been asserted here, it was a fact that defendant had been convicted of petty theft, the effort to prove it could have caused the prosecuting attorney but minimal expenditure of time and energy. Contrast this with the man-hours of labor during this appeal demanded of appellant's appointed counsel, of the personnel of the office of the Attorney General, of the members and staff of this court, all with the attending dollar loss to the taxpayer!

Filed 3/23/16 In re Saul Brandman Revocable Trust CA2/1 NOT TO BE PUBLISHED IN THE 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 SECOND APPELLATE DISTRICT DIVISION ONE In re SAUL BRANDMAN REVOCABLE B260724 TRUST and JOYCE O’DONNELL BRANDMAN MARITAL TRUST. (Los Angeles County Super. Ct. No. BP156483) BARRY GOLDFARB et al., Petitioners and Respondents, v. STEVEN GORDON, Objector and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Maria E. Stratton, Judge. Reversed and remanded with directions. Loeb & Loeb, Andrew S. Clare, Robert J. Catalano for Objector and Appellant. Reed Smith, Bernard P. Simons, Zareh A. Jaltorossian for Petitioners and Respondents. __________________________________  Steven Gordon appeals from the probate court’s order granting a petition filed by Barry Goldfarb, Kenneth A. Goldman and Steve Massman (collectively, Trustees) as trustees of the Saul Brandman Revocable Trust (the Brandman Trust) and the Joyce O’Donnell Brandman Marital Trust to modify the Brandman Trust to qualify as a tax- exempt charitable trust. Gordon contends the probate court erred in granting the contested petition without allowing an evidentiary hearing. We agree with Gordon and reverse. BACKGROUND Saul Brandman (who is deceased) and appellant Gordon were business partners. In 1969, they cofounded Domino Realty Management, Inc. (Domino), a real estate management and investment company that manages 21 California limited liability companies and limited partnerships (the Domino Entities). On July 20, 1987, Brandman established the Brandman Trust. He was the sole trustee of the revocable trust. Brandman’s interests in the Domino Entities were transferred to the Brandman Trust. When Brandman died on May 27, 2008, the Brandman Trust became irrevocable and Trustees assumed their duties under the trusts. According to the terms of the Brandman Trust, upon Brandman’s death, certain trust assets were to be distributed as specific bequests to family and friends. The residue of the Brandman Trust was to be distributed to the Saul Brandman Foundation (the Foundation), a California nonprofit public benefit corporation. The members of the Foundation’s board of directors are Joyce Brandman (Brandman’s widow), Goldfarb (respondent Trustee), and Massman (respondent Trustee). Appellant Gordon, the principal of Domino, maintains that the agreements governing the Domino Entities (which pre-date Brandman’s death) give him the authority to withhold consent to the transfer of the Brandman Trust’s interests in the Domino Entities to the Foundation. He has withheld his consent to the transfer. In response to Gordon’s rejection of the transfer, Trustees, Ms. Brandman, and a majority of the board of directors of the Foundation reached an agreement to modify the Brandman Trust to qualify as a tax-exempt charitable trust under Internal Revenue Code 2 section 501(c)(3). The Brandman Trust’s interests in the Domino Entities would remain in the trust. According to Trustees, as stated in respondents’ brief, “there will be significant tax savings as to the remaining interests if the Brandman Trust is modified into a charitable trust,” which “will result in a substantial benefit to the downstream charities.” In October 2014, Trustees filed the verified petition that is at issue on appeal. In the petition, Trustees sought (1) modification of the Brandman Trust to qualify as a tax- exempt charitable trust, (2) a change of trustees of both the Brandman Trust and the Joyce O’Donnell Brandman Marital Trust, (3) approval of the settlement agreement between Trustees and Joyce Brandman, (4) approval of the first account current and report of Trustees for both trusts, (5) approval of disbursements and distributions, and (6) the discharge of Trustees. Gordon filed a verified response and objections to the petition, requesting the probate court deny the petition in its entirety. Therein he argued, among other things: (1) “Converting the Brandman Trust to the Foundation Trust would violate carefully crafted language in the agreements governing [Gordon]’s and Mr. Brandman’s businesses [the Domino Entities] that restricts the transfer of the businesses to other entities such as the Foundation without the survivor of [Gordon]’s and Mr. Brandman’s consent, just as transferring these businesses to the Foundation would have done.” (2) Gordon “and the Foundation Trust would have conflicting interests as co- owners of, and partners in, the [Domino Entities]. As just one example, the tax-exempt entity would be incentivized to avoid unrelated business taxable income, the avoidance of which may conflict with the goals of the other non-tax exempt members of the [Domino Entities], such as [Gordon].” (3) “[M]odification of the Brandman Trust is something that Mr. Brandman explicitly sought to enjoin, with the consequence being potential disinheritance. One needs look no further than the no-contest clause in the Brandman Trust to see that the filing of ‘[a] petition for settlement or for compromise affecting the terms of this instrument’ is to be deemed a contest.” 3  (4) The “greed” of the proposed trustees (respondent Goldman, respondent Goldfarb, Ms. Brandman, and two others to be chosen by the mediator who facilitated the settlement) was the motivation for the modification, as the settlement agreement provides the new trustees will vote on their own compensation. (5) Trustees “seek to bypass Mr. Brandman’s carefully planned succession plan for the trustees of the Trust” and “instead appoint Mrs. Brandman (whom Mr. Brandman explicitly did not include in his succession plan) and two other persons (who appear to be strangers to the Trust).” Lester Warshaw, who is not an appellant, also filed an objection to the petition on the ground that he is named as a successor trustee in the Brandman Trust, but not in the proposed modification to the trust. The California Attorney General filed a response to the petition stating, “In the event the petition is granted, the Attorney General’s Office reserves all of its rights and responsibilities to supervise the Saul Brandman Foundation Charitable Trust including the use and distribution of charitable assets, self-dealing transactions and trustee compensation.” On November 26, 2014, the probate court held a hearing on the petition. At the outset, the court asked the parties, “Do you need an evidentiary hearing at all on this?” Trustee’s counsel responded first, asking the court to decide the petition on the documents as a matter of law. Gordon’s counsel responded: “And we believe an evidentiary dispute is clearly called for, given the basis for the request for modification with regard to both the purpose of the trust, the interpretation of the transfer provision, the successor trustees’ position, and we believe that those issues need to be resolved, and discovery is required, Your Honor.” The probate court then asked Gordon’s counsel, “Give me what you would put on at such an evidentiary hearing.” Counsel responded: “We would put on evidence to the extent to which Mr. Brandman’s intent was that this trust would not be modified. We would put on evidence that it was his intent and the reason the trust was drafted the way it was with no contest clauses and the like, which specifically states that if a modification of 4 this type comes before this court, the no contest clause is invoked. Whether it’s enforceable or not, I’m not speaking to that. I’m speaking to the purpose of the trust, and the purpose of the trust was to make sure that there would be a buy-sell of some type between Mr. Brandman and Mr. Gordon, and that that was a two-way situation, and that we need evidence and that needs to be presented. Also the successor trustees who knew Mr. Brandman very well would speak to their interest and the importance of their continuing as trustees, Your Honor.” In response, Trustees’ counsel argued the petition on the merits, including the following arguments: “Mr. Gordon, as a nonbeneficiary, as a nontrustee, as a noninterested party is simply trying to thwart Mr. Brandman’s intent of benefitting charities to the tune of over $200 million by trying to thwart this and trying to buy the assets [at] a discount. There is no buy-sell in any document before the court. Trust is very clear. Charities are to benefit. The Foundation was to receive the residue and distribute it to charities. Mr. Gordon has thwarted that.” Trustee’s counsel touted the alleged tax savings to the Brandman Trust’s interests under the proposed modification. Gordon’s counsel further argued: “I think counsel’s comments . . . highlights the fact that there are factual disputes. I would also add that millions and millions of dollars have been distributed from the real estate assets to the trust. This has been going on for eight years. There is no evidence, no accountants, no nothing as to these tax issues, and I think we can get this discovery done quickly. We can have it resolved quickly, and there are factual disputes, and I think we’re entitled to have those matters heard on an evidentiary hearing.” After further argument by the parties, the court told Gordon’s counsel, “I still haven’t heard . . . what your offer of proof is, of what you would put on at an evidentiary hearing, other than the purpose of the trust.” Gordon’s counsel responded: “We would put on three things. We would put on, one, that the fact that these trustees -- the trustees are changing . . . is evidence of a modification of a trust being a transfer. We would put on the fact that the charitable trust creates very serious operating problems for our [client] because he has to deal now with the charity and all of the issues associated with the 5 charity, including mandatory distributions, including the ability to make capital calls, and including all of the reporting and everything associated with having a charity as a partner. All of the L.L.C. documents -- [¶] . . . [¶] And the third is that it was clearly the intent of the decedent that while there’s no buy-sell, that either the survivor continues to own and control or a transaction is worked out between the two of them. [¶] We would also [put] on evidence to the effect that given the restrictions, if it gets down to this, in the L.L.C. agreements that the notion of having a transaction involving a charity is very, very difficult and will create all kinds of operating problems and difficulties for this enterprise. [¶] But in the end, the basic issue in the case is, the language in the L.L.C. agreements and the purpose of that language and the efforts by the trustees and the trust to circumvent that through a modification that is not -- there’s no reason for it. It’s not necessary, and the money is being distributed on a regular and recurring basis by the commercial enterprise to the trust. And that’s what the evidence would show, and we think we’re entitled to a hearing on that.” Trustee’s counsel argued Gordon’s offer of proof was “nonsense” on the merits and was “not relevant at all to Mr. Brandman’s intent.” The probate court took the matter under submission. On December 22, 2014, the court issued an order granting the petition without holding an evidentiary hearing. DISCUSSION Gordon’s sole contention on appeal is the probate court erred in granting the petition without allowing an evidentiary hearing. Gordon cites Probate Code section 1022 which provides, “An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under [the Probate Code].” (Italics added.) The Probate Code does not include a provision “authorizing the substitution of affidavits for oral evidence in a contested probate proceeding.” (Estate of Fraysher (1956) 47 Cal.2d 131, 135, italics added.) “Thus when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing.” (Evangelho v. Presoto (1998) 67 Cal.App.4th 615, 620.) 6  The Trustees point out a party may forfeit his or her right to an evidentiary hearing. “[W]here the parties do not object to the use of affidavits in evidence, and where both parties adopt that means of supporting their positions, the parties cannot question the propriety of the procedure on appeal.” (Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1088.) The appellate court in Estate of Nicholas, supra, 177 Cal.App.3d at page 1088 explained, “The trustee’s petition and [the objector]’s written objections were both verified in the form of declarations under penalty of perjury. [Citation.] Absent an objection, these documents were properly considered as evidence.” The relevant cases do not set forth the appropriate standard for review of a probate court’s denial of an evidentiary hearing when granting a petition. Gordon argues the standard is de novo. Trustees argue it is abuse of discretion. Under any standard, we conclude the probate court erred. The probate proceeding at issue here was contested. Gordon requested an evidentiary hearing. He made clear he wanted to support his written response and objections to the petition with evidence. He did not forfeit his right to an evidentiary hearing. The fact Gordon did not specifically cite Probate Code section 1022 in his objections or arguments to the probate court does not mean he forfeited his right to an evidentiary hearing under the statute and case law interpreting it. He unequivocally objected to the probate court deciding the matter on the papers without an evidentiary hearing. He did not know his request for an evidentiary hearing had been denied—and that he would have no further opportunity to present evidence or argue his case—until he received the probate court’s order granting the petition on the merits. The Trustees also argue Gordon is not entitled to an evidentiary hearing because he did not make a sufficient offer of proof demonstrating there were factual disputes the probate court needed to resolve. In his response and objections, Gordon disputed there were “changed circumstances” warranting modification of the irrevocable Brandman 7  1 Trust, as Trustees claimed in their verified petition. Gordon also disputed there was an evidentiary basis for Trustees’ claim in the petition that the modification would lead to substantial tax benefits for the Brandman Trust’s interests in the Domino Entities—the purported reason for the proposed modification. Gordon further disputed there was a reason for altering Brandman’s succession plan for the trustees of the trust. Gordon also sought to present evidence demonstrating the proposed modification of the Brandman Trust would interfere with the management of the Domino Entities, a result Gordon 2 argues Brandman would have opposed. In respondents’ brief and at oral argument, Trustees relied on McMillian v. Stroud (2008) 166 Cal.App.4th 692 (McMillian), and asserted that case involves a similar factual scenario to the one before us supporting the probate court’s decision to deny Gordon an evidentiary hearing. The facts in McMillian, however, differ significantly from the case before us in a key respect. There, the appellant (a minor, through his guardian ad litem/trustee of his special needs trust) did not request an evidentiary hearing in his motion to reduce a Medi-Cal lien or at the hearing on the motion. (Id. at p. 704.) For the first time on appeal, the appellant objected to the probate court resolving the motion without an evidentiary hearing. The appellate court considered the appellant’s arguments at the hearing before the probate court, “viewed [those arguments] as an offer of proof,” 1 Under Probate Code section 15409, subdivision (a), “On petition by a trustee or beneficiary, the court may modify the administrative or dispositive provisions of the trust or terminate the trust if, owing to circumstances not known to the settlor and not anticipated by the settlor, the continuation of the trust under its terms would defeat or substantially impair the accomplishment of the purposes of the trust. In this case, if necessary to carry out the purposes of the trust, the court may order the trustee to do acts that are not authorized or are forbidden by the trust instrument.” 2 Under Probate Code section 15403, subdivision (b), “If the continuance of the trust is necessary to carry out a material purpose of the trust, the trust cannot be modified or terminated unless the court, in its discretion, determines that the reason for doing so under the circumstances outweighs the interest in accomplishing a material purpose of the trust.” Gordon sought to present evidence indicating the proposed modification would thwart the purposes of the Brandman Trust. 8 and determined the probate court did not err in “conclud[ing] that the pending lien should be resolved on the basis of the declarations alone.” (Id. at pp. 704-705.) Here, Trustees mischaracterize the facts and conclusions in McMillian. Trustees stated in respondents’ brief that the Court of Appeal in McMillian rejected the appellant’s contention the probate court erred in deciding the motion without an evidentiary hearing because, “although he [the appellant in McMillian] requested an evidentiary hearing at the hearing on the petition, he failed to make a proper offer of proof.” (Italics added.) As the opinion in McMillian makes clear, the appellant in McMillian never asked the probate court to hold an evidentiary hearing. (McMillian, supra, 166 Cal.App.4th at pp. 704-705 [“Here, appellants’ motion never refers to an evidentiary hearing. At the hearing on the motion, Attorney O’Brien did not ask for an evidentiary hearing on the settlement, and argued only that John A. Girardi, appellants’ prior counsel, was privy to the facts regarding the settlement. For the reasons explained above, Girardi’s statements at the hearing, viewed as an offer of proof, do not show that he would have testified that the portion of settlement reflecting medical payments was less than $83,837.43”].) In the case before this court, in contrast, Gordon’s attorney requested an evidentiary hearing at the outset of the hearing on the petition, devoting his oral argument to the reasons the petition was contested and his entitlement to an evidentiary hearing. Trustees’ assertion Gordon forfeited his right to an evidentiary hearing is without merit. We express no opinion on the merits of this contested proceeding or the likelihood of Gordon proving his case. We merely hold that Gordon was entitled to an evidentiary hearing in this contested proceeding and the court erred in rejecting his request for one. Accordingly, we reverse the order and direct the probate court to hold an evidentiary hearing on Trustees’ petition. 9  DISPOSITION The order is reversed and the matter is remanded for an evidentiary hearing on Trustees’ petition. Gordon is entitled to recover costs on appeal. NOT TO BE PUBLISHED. CHANEY, Acting P. J. We concur: JOHNSON, J. LUI, J. 10 

469 F.Supp.2d 586 (2007) Phillip KUNTZ and Frances J. Kuntz, Plaintiffs, v. ILLINOIS CENTRAL RAILROAD COMPANY a/k/a Canadian National/Illinois Central Railroad, Defendant. Civil No. 06-554-GPM. United States District Court, S.D. Illinois. January 5, 2007. *587 Kurt E. Harris, The Kurt E. Harris Law Firm, Duquoin, IL, for Plaintiffs. Kurt E. Reitz, Thompson Coburn — Belleville Generally Admitted, Belleville, IL, for Defendant. MEMORANDUM AND ORDER MURPHY, Chief Judge. This matter, which was recently transferred from the docket of United States Senior District Judge James L. Foreman to the docket of the undersigned United States District Judge, is before the Court sua sponte on reconsideration of Judge Foreman's order denying remand of this case to state court (Doc. 22). The order is VACATED and, pursuant to 28 U.S.C. § 1447(c), this case is REMANDED to the Circuit Court of the Twentieth Judicial Circuit; Perry County, Illinois, for lack of federal subject matter jurisdiction. INTRODUCTION This case arises from an incident that occurred on April 3, 2006, in which Phillip Kuntz was injured at a railroad crossing in Perry County, Illinois, when his car was struck by a train owned and operated by Defendant Illinois Central Railroad Company a/k/a Canadian National/Illinois Central Railroad ("ICR"). The complaint in this case, which was filed originally in state court in Perry County on May 26, 2006, alleges that ICR was negligent in connection with the accident by: failing to maintain its crossing by keeping the right of way reasonably clear of brush, shrubbery, trees, and weeds, in violation of 625 ILCS *588 5/18c-7401(1) and (3) and Ill. Admin. Code Tit. 92, § 1535.205; failing to provide adequate sight distance at the crossing so that motorists could see approaching trains; failing to maintain the cross-bucks at the crossing; failing to equip the crossing with additional signage after receiving a recommendation to do so from the Illinois Commerce Commission; failing to maintain the crossing by reason of loose gravel and potholes in the roadway; failing to give motorists adequate warning of approaching trains; failing to stop or slow its train to avoid the accident; failing to sound a proper warning; and failing to maintain a proper lookout. Mr. Kuntz's wife, Plaintiff Frances J. Kuntz, asserts a claim for loss of consortium.[1] ICR timely removed the case from state court to this Court, contending that the case arises under federal law. Mr. and Mrs. Kuntz moved for remand of the case to state court for lack of federal subject matter jurisdiction. By order entered November 15, 2006, Judge Foreman, to whom the case was assigned after removal, denied remand. On December 14, 2006, the case was reassigned to the undersigned District Judge. By Order entered December 20, 2006, the Court advised the parties that it had undertaken sua sponte reconsideration of Judge Foreman's order denying remand of the case to state court, and directed the parties in the case to submit any additional authorities pertinent to the existence of subject matter jurisdiction by December 27, 2006. Having reviewed the file in this case, including Judge Foreman's order denying remand, together with all additional submissions by the parties regarding subject matter jurisdiction, the undersigned District Judge concludes that the order denying remand is in error and must be vacated and that this case must be remanded to state court for lack of federal subject matter jurisdiction. DISCUSSION A. Legal Standard It is axiomatic that "[f]ederal courts are courts of limited jurisdiction, with power to hear a case only if such power is granted by the Constitution and authorized: by statute, and the presumption is that a case lies outside of this limited jurisdiction." McNichols v. Johnson & Johnson, No. CIV. 06-160-GPM, 2006 WL 3360542, at *1 (S.D.Ill. April 19, 2006). "Because a federal court's jurisdiction is limited, it has a `nondelegable duty to police the limits of federal jurisdiction with meticulous care.'" Id. (quoting Market St. Assocs. Ltd. P'ship v. Frey, 941 F.2d 588, 590 (7th Cir.1991)). The limited nature of federal subject matter jurisdiction imposes on federal courts a duty to examine their jurisdiction at every stage of a proceeding, sua sponte if need be. "Jurisdiction is the `power to declare law,' and without it the federal courts cannot proceed. Accordingly, not only may the federal courts police subject matter jurisdiction sua sponte, they must." Hay v. Indiana State Bd. of Tax Comm'rs, 312 F.3d 876, 879 (7th Cir.2002) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). Thus, just as subject matter jurisdiction cannot be created through, for example, laches, waiver, or estoppel, see Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); Sadat *589 v. Mertes, 615 F.2d 1176, 1188 (7th Cir. 1980), so a federal court has a duty to ascertain the existence or non-existence of subject matter jurisdiction regardless of the representations of the parties. See Capitol Fed. Say. of Am. v. Geldermann & Co., No. 86 C 9232, 1987 WL 7270, at *1 (N.D.Ill. Feb.24, 1987) (citing Kanzelberger v. Kanzelberger, 782 F.2d 774, 777 (7th Cir.1986)). See also Commercial Nat'l Bank of Chicago v. Demos, 18 F.3d 485, 487 (7th Cir.1994) ("We are required to satisfy ourselves not only of our own jurisdiction, but also the jurisdiction of the district court. . . . Further, we must consider the issue sua sponte when it appears from the record that jurisdiction is lacking."). The standard concerning removal of actions from state court to federal court is equally well established. Removal is governed by 28 U.S.C. § 1441, which provides, in pertinent part, that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). In other words, "[a] defendant may remove a case to federal court only if the federal district court would have original subject matter jurisdiction over the action." Disher v. Citigroup Global Mkts. Inc., 419 F.3d 649, 653 (7th Cir.2005), vacated on other grounds, ___ U.S. ___, 126 S.Ct. 2964, 165 L.Ed.2d 947 (2006). The party seeking removal has the burden of establishing federal jurisdiction. See Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Id. Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir.1976). See also Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D.Ill. Mar. 9, 2000) ("The removal statute, 28 U.S.C. § 1441, is construed narrowly, and doubts concerning removal are resolved in favor of remand."). B. Federal Question Jurisdiction In general, of course, district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.' The usual test of whether an action arises under federal law for purposes of so-called "federal question" jurisdiction under section 1331 is the "well-pleaded complaint" rule, which provides generally that a case arises under federal law within the meaning of the statute only when federal law appears on the face of a plaintiffs complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152-53, 29 S.Ct. 42, 53 L.Ed. 126 (1908). "[T]he paramount policies embodied in the well-pleaded complaint rule . . . [are] that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court." Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425. Importantly, the well-pleaded complaint rule requires generally that a complaint state a claim for relief under federal law. As Justice Holmes explained, "A suit arises under the law that creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916). The purpose of restricting federal question jurisdiction to cases asserting claims for relief under federal law is, in addition to preserving *590 a plaintiffs right to choose his or her forum, to "severely limit[] the number of cases . that may be initiated in or removed to federal district court, thereby avoiding more-or-less automatically a number of potentially serious federal-state conflicts." Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 9-10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The policy underlying the well-pleaded complaint rule of protecting the proper balance of power as between federal and state courts dovetails with the policy favoring narrow construction of removal. As a court of appeals in a sister circuit recognized, "[B]ecause the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns, . . . which mandate strict construction of the removal statute." Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir.1995). In this case the operative complaint is devoid of any reference to federal law. ICR's notice of removal asserts, however, that federal question jurisdiction is proper because the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. §§ 20101-20153, completely preempts the claims alleged in the complaint or, alternatively, FRSA preemption of those claims presents a substantial question of federal law such as to give rise to federal subject matter jurisdiction. Although it is not entirely clear from Judge Foreman's order denying remand, it appears that Judge Foreman found federal question jurisdiction on the basis of complete preemption, without reaching the issue of whether the complaint raises a substantial federal question. The Court will address each of ICR's asserted grounds for federal subject matter jurisdiction in turn. 1. Complete Preemption In a limited class of cases an action may arise under federal law within the meaning of 28 U.S.C. § 1331 even if the complaint in the case asserts no claim for relief, under federal law where state law is "completely preempted" by federal law. Complete preemption occurs when "the preemptive force of a [federal] statute is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'" Nelson v. Stewart, 422 F.3d 463, 466-67 (7th Cir. 2005) (quoting Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425). "Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Id. at 467. "In such situations, the federal statute . . . not only preempt[s] state law but also authorize[s] removal of actions that sought relief only under state law." Id. Complete preemption is a narrow exception to the well-pleaded complaint rule. The Supreme Court of the United States has found complete preemption as to only four federal laws: the Employee Retirement Income Security Act of 1974, see Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); a treaty concerning Indian tribal land, see Oneida Indian Nation of N.Y. v. Oneida County, N.Y., 414 U.S. 661, 681-82, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); the Labor Management Relations Act, see Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers, 390 U.S. 557, 559-60, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); and the National Bank Act. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8-11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). The Supreme Court has held that, for purposes of establishing complete *591 preemption, the "touchstone of the federal district court's removal jurisdiction is . . . the intent of Congress." Metropolitan Life, 481 U.S. at 66, 107 S.Ct. 1542. In Beneficial National. Bank the Court instructed further that complete preemption will be found only when the "federal statute[] at issue provide[s] the exclusive cause of action for the claim asserted and also set[s] forth procedures and remedies governing that cause of action." 539 U.S. at 8, 123 S.Ct. 2058. The United States Court of Appeals for the Seventh Circuit has held that, to establish that a federal statute is completely preemptive of state law so as to permit removal, a defendant must show that a statute evinces a clear Congressional intent that state-law claims be removable under the statute and the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law. "Complete . . . preemption exists where . . . Congress has so completely preempted a particular area that no room remains for any state regulation and the complaint would be `necessarily federal in character.'" Rogers v. Tyson Foods, Inc., 308 F.3d 785, 787 (7th Cir. 2002) (quoting Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983, 986 (7th Cir. 2000)). Further, "[w]e find complete preemption where there is a . . . congressional intent in the enactment of a federal statute not just to provide a federal defense to a state created cause of action but to grant a defendant the ability to remove the adjudication of the cause of action to a federal court by transforming the state cause of action into a federal cause of action." Id. at 788 (emphasis omitted). The Rogers court explained, As this circuit interprets the law, the . . . ability to bring suit under [federal law] is an element of . . . complete preemption. . . . Logically, complete preemption would not be appropriate if a federal remedy did not exist in the alternative. Otherwise, a plaintiff would be forced into federal court with no relief available for . . . vindicating the same interest. . . . Preemption is what wipes out state law, but the foundation for removal is the creation of federal law to replace state law. . . . Accordingly, . . . unless the federal law has created a federal remedy — no matter how limited — the federal law, of necessity, will only arise as a defense to a state law action . . . and will thus not give rise to the federal question jurisdiction underlying complete preemption. Id. In sum, "the existence of a private right of action under federal law is an antecedent of complete preemption." Rogers, 308 F.3d at 788. See also Sullivan v. American Airlines, Inc., 424 F.3d 267, 276 (2d Cir.2005) (quoting Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425) (stating that "[o]nly state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.") (emphasis omitted); Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000) (the test of whether a federal statute completely preempts state law for removal purposes is whether: (1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for enforcement of the right; and (3) there is a clear Congressional intent that claims brought under the federal law be removable); Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 311-12 (3d Cir.1994) (the test of complete preemption is (1) whether a federal statute contains civil enforcement provisions under which a plaintiff's state claims could be brought and (2) whether the federal statute contains a "clear indication *592 of a Congressional intention to permit removal despite the plaintiffs exclusive reliance on state law."). It is plain that the FRSA does not satisfy the demanding test for complete preemption. The FRSA manifests no intent to completely federalize the field of state tort law with respect to railroads. Although the statute contains a provision preempting state law that conflicts with regulations promulgated pursuant to the statute by specified federal agencies, the statute also contains an express savings clause preserving state-law remedies as to matters that are not substantially subsumed by such regulations: Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the. State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order — (1) is necessary to eliminate or reduce an essentially local safety or security hazard; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce. 49 U.S.C. § 20106. See also CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) (explaining that federal regulations "Cover[] the . . . subject matter" of state law within the meaning of 49 U.S.C. § 20106 "only if the federal regulations substantially subsume the subject matter of the relevant state law."). As the Supreme Court recognized in Easterwood, the language of the FRSA's provisions concerning preemption "displays considerable solicitude for state law" and imposes a "stringent" standard for preemption. 507 U.S. at 665, 668, 113 S.Ct. 1732. See also United Transp. Union v. Foster, 205 F.3d 851, 860 (5th Cir. 2000) (noting that, in interpreting the scope of FRSA preemption, courts should "eschew[] broad categories such as `railroad safety,' focusing instead on the specific subject matter contained in the federal regulation," and that "FRSA preemption is even more disfavored than [federal] preemption [of state law] generally."). The text of the statute evinces no legislative intent to make the subject matter of tort claims against railroads a field occupied entirely by federal law. Further, the FRSA provides no federal remedy for the claims asserted in this case. In some instances the FRSA and regulations promulgated thereunder arguably create a federal remedy. See, e.g., Peters v. Union Pac. R.R. Co., 80 F.3d 257, 260-62 (8th Cir.1996) (finding complete preemption as to a railroad engineer's state-law claim that a railroad converted his engineer certificate where regulations promulgated pursuant to the FRSA set out an administrative adjudication process for disputes about certification); Rayner v. Smirl, 873 F.2d 60, 63-67 (4th Cir.1989) (finding that the FRSA's protections for whistleblowers caused complete preemption of a railroad employee's state-law claim for retaliatory discharge). However, the regulations promulgated under the FRSA that potentially apply to this case create no federal remedy. For example, if the allegations *593 of the complaint regarding excessive vegetation and inadequate sight distance at the crossing where Philip Kuntz was injured concern vegetation on or immediately adjacent to the tracks, then 49 C.F.R. § 213.37 simply extinguishes those claims,, without furnishing any federal remedy for them. See Easterwood v. CSX Transp., Inc., 933 F.2d 1548, 1554 (11th Cir.1991) (a plaintiff's claim that a grade-crossing collision was the result of excessive vegetation on or immediately adjacent to the tracks that obstructed sight distance is preempted under 49 C.F.R. § 213.37, but the regulation does not apply to vegetation near, but not immediately adjacent to, the tracks); Missouri Pac. R.R. Co. v. Railroad Comm'n of Tex., 833 F.2d 570, 577 (5th Cir.1987) (same); O'Bannon v. Union Pac. R.R. Co., 960 F.Supp. 1411, 1422-23 (W.D.Mo.1997) (same). Similarly, if the crossing where Mr. Kuntz was injured was equipped with federally-approved warning devices that were actually installed with federal funds and operating at the time of the accident, under 23 C.F.R. § 646.214(b)(3) and (4) this mandates dismissal of any claim that the crossing should have been equipped with additional or different warning devices. See Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 353-54, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000); Lee v. Burlington N. Santa Fe Ry. Co., 245 F.3d 1102, 1106 (9th Cir.2001); Nye v. CSX Transp., Inc., 300 F.Supp.2d 529, 535 (N.D.Ohio 2004); Powers v. CSX Transp., Inc., 97 F.Supp.2d 1297, 1307 (S.D.Ala.2000). Likewise, if the train that injured Mr. Kuntz was traveling at or below the maximum speed fixed by 49 C.F.R. § 213.9 for the class of track at the crossing where the accident giving rise to this case occurred, this would defeat any claim based upon an allegedly negligent failure to stop or slow, unless the crossing presented a specific, individual hazard that required the train to stop or slow. See Easterwood, 507 U.S. at 675 n. 15, 113 S.Ct. 1732; Anderson v. Wisconsin Cent. Transp. Co., 327 F.Supp.2d 969, 978-79 (E.D.Wis.2004); Bashir v. National R.R. Passenger Corp., 929 F.Supp. 404, 412 (S.D.Fla.1996); Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226, 242 (Mo.2001). Finally, to the extent the claim asserted in the complaint that the train failed to sound a proper warning is based on the volume level of the warning, such a claim is preempted under 49 C.F.R. § 229.129, although naturally the regulation does not displace the railroad's duty under state law to sound a timely warning. See Strozyk v. Norfolk S. Corp., 358 F.3d 268, 274 n. 5 (3d Cir.2004); Bebout v. Norfolk & W. Ry. Co., 47 F.3d 876, 878 (7th Cir.1995); Clark v. Illinois Cent. R.R. Co., 794 So.2d 191, 196-98 (Miss. 2001); Rivers v. CSX Transp., No. 9-01-59, 2002 WL 533397, at *4-5 (Ohio Ct.App. April 10, 2002).[2] *594 In sum, the federal regulations that may apply to this case establish "conflict preemption" but not complete preemption. "[F]ederal preemption that merely serves as a defense to a state law action (sometimes called `conflict preemption') does not confer federal question jurisdiction. Thus the defendant cannot cause a transfer to federal court simply by asserting a federal question in his responsive pleading." Rice v. Panchal, 65 F.3d 637, 639 (7th Cir.1995) (citations omitted). See also Lister v. Stark, 890 F.2d 941, 943 n. 1 (7th Cir.1989) ("[A] case must be remanded to state court if the sole basis for federal jurisdiction is a preemption defense and if the federal court finds that the preemption is insufficiently complete to confer federal question jurisdiction."); Husko v. Geary Elec., Inc., 316 F.Supp.2d 664, 670 (N.D.Ill.2004) ("Conflict preemption is . . . nothing more than an affirmative defense that does not trump the well-pleaded complaint rule."). In Copling v. Container Store, Inc., 174 F.3d 590 (5th Cir.1999), the court explained: Conflict preemption simply fails to establish federal question jurisdiction. Rather than transmogrifying a state cause of action into a federal one, as occurs with complete preemption, conflict preemption serves as a defense to a state action. "When the doctrine of complete preemption does not apply, but the plaintiffs state claim is arguably preempted . . ., the district court, being _ without removal jurisdiction, cannot resolve the dispute regarding preemption. It lacks power to do anything other than remand to the state court where the preemption issue can be addressed and resolved." Id. at 595 (quoting Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir.1995)) (emphasis in original) (footnote omitted). It is well settled that "[s]tate courts are competent to determine whether state law has been preempted by federal law . . . and absent complete preemption . . . they must be permitted to perform that function . . . with regard to state law claims brought before them." Goepel, 36 F.3d at 316 (quoting Railway Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 942 (3d Cir.1988)). See also Kircher v. Putnam Funds Trust, ____ U.S. ___, ___-___, 126 S.Ct. 2145, 2156-57, 165 L.Ed.2d 92 (2006) (state courts are presumed to be able to resolve questions of preemption of state law by federal law and, in any event, their determinations regarding preemption are subject to review by the Supreme Court). Any questions of preemption of state law by federal law that may be involved in this case must be decided not by this Court, which lacks jurisdiction to resolve those questions, but by the circuit court of Perry County, Illinois. 2. Substantial Federal Question Although Judge Foreman's order denying remand of this case appears to have found federal question jurisdiction on the basis of complete preemption, ICR's notice of removal and its submissions regarding subject matter jurisdiction also invoke jurisdiction under 28 U.S.C. § 1331 on the grounds that the complaint in this case presents a substantial question of federal law, and therefore the Court will address this asserted basis for subject matter jurisdiction as well. The "substantial federal question" doctrine provides generally that "[e]ven though state law creates [a plaintiff's] cause of action, its case still *595 might `arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties." Franchise Tax Bd., 463 U.S. at 13, 103 S.Ct. 2841. The doctrine normally is traced to Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), in which a plaintiff brought a complaint for injunctive relief in federal court, alleging that a defendant's actions were illegal because they were taken pursuant to an unconstitutional federal statute. See id. at 195-99, 41 S.Ct. 243. The Court held, "A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either, . . . and again, when . . . the title or right set up by the party, may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction." Id. at 199, 41 S.Ct. 243. Thus, federal question jurisdiction exists "where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable[.]" Id. The substantial federal question doctrine must be applied in a manner that is consistent with the well-pleaded complaint rule, which is to say, a substantial question of federal law must appear on the face of a plaintiffs complaint. In Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), the Court said, To bring a case within [federal question jurisdiction], a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiffs cause of action. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto, and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiffs cause of action and anticipates or replies to a probable defense. Id. at 112-13, 57 S.Ct. 96 (citations omitted). Similarly, in Franchise Tax Board the Court held that, "[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose." 463 U.S. at 10, 103 S.Ct. 2841 (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914)). "Thus, a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise, or that a federal defense the defendant may raise is not sufficient to defeat the claim." Id. (citations omitted). "For better or worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." Id. (emphasis in original). "[A] right or immunity, created by the Constitution or laws of the United *596 States must be an element, and an essential one, of the plaintiffs cause of action." Id. at 10-11, 103 S.Ct. 2841 (quoting Gully, 299 U.S. at 112, 57 S.Ct. 96). The Supreme Court's most important recent pronouncement on the substantial federal question doctrine is, of course, Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.E d.2d 257 (2005), in which the Court furnished guidance as to application of the doctrine, and also placed some significant qualifications on it. In Grable a plaintiff whose real property had been seized by the Internal Revenue Service ("IRS") and sold in order to satisfy a federal tax delinquency brought a quiet title action in state court against the buyer of the property. See id. at 310-11, 125 S.Ct. 2363. The plaintiff alleged that its title was superior to that of the buyer of the property because the IRS failed to give the plaintiff notice of the sale by personal service, rather than certified mail, as the plaintiff asserted the IRS was required to do under 26 U.S.C. § 6335. See id. at 311, 125 S.Ct. 2363. The buyer of the property removed the case to federal court, asserting that the plaintiffs complaint raised a substantial question of federal law regarding the interpretation of section 6335 of the Internal Revenue Code. In evaluating the existence of federal question jurisdiction, the Supreme Court set out a two-part test for determining whether a complaint presents a substantial federal question so as to arise under federal law: (1) whether "a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial"; and (2) whether a federal forum may entertain a case "without disturbing any congressionally approved balance of federal and state judicial responsibilities." Id. at 314, 125 S.Ct. 2363. Applying this standard, the Grable Court found that the case arose under federal law. State law required the plaintiff to set out in its complaint the facts underlying its claim of superior title, and the basis for the plaintiffs claim of superior title was the alleged failure of the IRS to give the plaintiff adequate notice, as defined by 26 U.S.C. § 6335, of the sale of the plaintiffs property. See 545 U.S. at 314-15, 125 S.Ct. 2363. The Court said, "Whether [the plaintiff] was given notice within the meaning of the federal statute is thus an essential element of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case." Id. at 315, 125 S.Ct. 2363. The Court found further that the exercise of federal jurisdiction would not disrupt the proper division of labor between federal courts and state courts: The meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court. The Government has a strong interest in the "prompt and certain collection " of delinquent taxes," and the ability of the IRS to satisfy its claims from the property of delinquents requires clear terms of notice to allow buyers . . . to satisfy themselves that the Service has touched the bases necessary for good title. The Government thus has a direct interest in the availability of a federal forum to vindicate its own administrative action, and buyers (as well as tax delinquents) may find it valuable to come before judges used to federal tax matters. Finally, because it will be the rare state title case that raises a contested matter of federal law, federal jurisdiction to resolve genuine disagreement over federal tax title provisions will portend only a microscopic effect on the federal-state division of labor. *597 Id. (quoting United States v. Rodgers, 461 U.S. 677, 709, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983)). Thus, the Court concluded, "[t]his case warrants federal jurisdiction." Id. at 314, 125 S.Ct. 2363. Importantly, the Grable Court reiterated the continuing validity, of Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). The Court rejected the view adopted by some circuits, including the Seventh Circuit, that under Merrell Dow the existence of a federal right of action is a necessary predicate to the exercise of subject matter jurisdiction pursuant to the substantial federal question doctrine. See 545 U.S. at 317, 125 S.Ct. 2363. See also Seinfeld v. Austen, 39 F.3d 761, 764 (7th Cir.1994) ("Under Merrell Dow, . . . if federal law does not provide a private right of action, then a state law action based on its violation perforce does not raise a . . . substantial . . . federal question."). However, the Court emphasized that Merrell Dow is consistent with the framework for evaluating the existence of a substantial federal question set out in Grable. The Grable Court explained that in Merrell Dow, where the Court held that a state-law tort claim resting in part on an allegation that the defendant drug company had violated a federal branding law did not arise under federal law, the absence of a federal right of action suggested the lack of a substantial federal question. See 545 U.S. at 318, 125 S.Ct. 2363. This lack of a federal right of action, combined with the fact that state remedies for mislabeling had not been preempted, provided "an important clue to Congress's conception of the scope of jurisdiction to be exercised under [28 U.S.C.] § 1331." Id. Moreover, the Grable Court explained, had the Court held in Merrell Dow that a violation of a federal standard was sufficient to confer jurisdiction over state-law claims, the result would have been disruptive of the federal-state division of labor: One only needed to consider the treatment of federal violations generally in garden variety state tort law. . . . The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings. . . . A general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would thus have heralded a potentially enormous shift of traditionally state cases into federal courts. Expressing concern over the "increased volume of federal litigation," and noting the importance of adhering to "legislative intent," Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law "solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] . . . under state law". . . . Merrell Dow's analysis thus fits within the framework of examining the importance of having a federal forum for the issue, and the consistency of such a forum with Congress's intended division of labor between state and federal courts. Id. at 318-19, 125 S.Ct. 2363 (quoting Merrell Dow, 478 U.S. at 811-12, 106 S.Ct. 3229). Applying the Grable standard in this case, it is clear the claims asserted by Mr. and Mrs. Kuntz do not present a substantial federal question. As has been discussed, the FRSA provides no private right of action in this instance; if regulations promulgated under the statute apply to the claims asserted by Mr. and Mrs. Kuntz, those claims are simply extinguished. The absence of a federal private right of action is, as the Grable Court *598 explained, evidence "relevant to, but not dispositive of, the . . . sensitive judgments about congressional intent" courts must make as to the scope of federal question jurisdiction and signifies a "missing welcome mat" for exercising federal jurisdiction. 545 U.S. at 318, 125 S.Ct. 2363. Likewise, as has also been discussed, the complaint in this case presents no question of federal law. Thus, no "stated federal issue, actually disputed and substantial," appears on the face of the complaint. Id. at 314, 125 S.Ct. 2363. It is obvious that federal law enters this case, if at all, solely by way of a defense of preemption of state law by federal law, so that a finding that this case presents a substantial federal question merely on the basis of ICR's preemption defense would be manifestly contrary to the well-pleaded complaint rule. Finally, to conclude that federal question jurisdiction exists in this case would be highly disruptive of the proper division of labor between federal courts and state courts. In Easterwood the Supreme Court recognized that safety at railroad crossings is a matter that implicates the historic power of the states to protect the health and welfare of their citizens, mandating strict construction of FRSA preemption. See 507 U.S. at 663-64, 113 S.Ct. 1732. As the Curable Court observed, [E]ven when the state action discloses a contested and substantial federal question, the exercise of federal jurisdiction is subject to a possible veto. For the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of [28 U.S.C.] § 1331.. Because arising-under jurisdiction to hear a state-law claim always raises the possibility of upsetting the state-federal line drawn (or at least assumed) by Congress, the presence of a disputed federal issue and the ostensible importance of a federal forum are never necessarily dispositive; there must always be an assessment of any disruptive portent in exercising federal jurisdiction. 545 U.S. at 313-14, 125 S.Ct. 2363. The claims in this case arise wholly under state law and are most properly heard in a state forum, not a federal forum. This case does not require the interpretation of any federal statute or regulation; if, for example, it is determined that federal funds were spent at the crossing where Mr. Kuntz was injured, this would require dismissal of the claims asserted in the complaint based on allegedly inadequate signals at the crossing, but it would not require construction of federal law. Similarly, this is not a case where the federal government has a strong interest in "the availability of a federal forum to vindicate its own administrative action" or where a federal court possesses greater familiarity with the applicable law than does a state court. Id. at 315, 125 S.Ct. 2363. Lastly, this is not the type of state-law case that will "rare[ly]" present a question of federal law and thus have "only a microscopic effect on the federal-state division of labor." Id. To the contrary, the Court is well aware from its own experience that it is the rare case arising from a collision between a train and a motorist at a railroad crossing that does not present issues regarding preemption of state law by regulations promulgated pursuant to the FRSA. In concluding that this case does not present a substantial federal question so as to arise under federal law, the Court is mindful that the substantial federal question doctrine, like virtually all matters bearing on the subject matter jurisdiction of federal courts, is to be construed narrowly. As a sister court observed, "The Supreme Court has periodically affirmed this basis for jurisdiction in the abstract . . ., occasionally cast doubt upon it, rarely *599 applied it in practice, and left the very scope of the concept unclear. Perhaps the best one can say is that this basis endures in principle but should be applied with caution and various qualifications." Almond v. Capital Props., Inc., 212 F.3d 20, 23 (1st Cir.2000) (footnote omitted). The Court also is mindful that in a recent decision the Supreme Court clarified that matters properly meriting the exercise of federal question jurisdiction under Grable are rare. See Empire Healthchoice Assurance, Inc. v. McVeigh, ___ U.S. ___, ___, 126 S.Ct. 2121, 2137, 165 L.Ed.2d 131 (2006) (quoting, Grable, 545 U.S. at 313, 125 S.Ct. 2363) (noting that "Grable emphasized that it takes more than a federal element `to open the . . . arising under . . . door,'" and holding that an action by a health insurance carrier for federal employees against an enrollee's estate seeking reimbursement of benefits on the ground that the enrollee had recovered damages for his injuries in a state-court tort action "cannot be squeezed into the slim category Grable exemplifies."). The Court sees no reason to enlarge federal question jurisdiction to embrace any state-law tort action that, as in this case, potentially implicates issues of federal preemption. This case will be remanded to state court. CONCLUSION Senior District. Judge Foreman's order denying remand of this case to state court (Doc. 22) is VACATED. Pursuant to 28 U.S.C. § 1447(c), this case is REMANDED to the Circuit Court of the Twentieth Judicial Circuit, Perry County, Illinois, for lack of federal subject matter jurisdiction. ICR's motion to publish Judge Foreman's order (Doc. 23) is DENIED. IT IS SO ORDERED. NOTES [1] It appears from the record that Mr. Kuntz died on July 11, 2006. A motion for an enlargement of time to substitute the representative of his estate as a Plaintiff in this case is pending before the Court. Because for the reasons discussed infra the Court concludes that federal subject matter jurisdiction is lacking in this case, the Court does not reach the merits of that motion. [2] The Court notes that the FRSA does not preempt the claims of negligence asserted in the complaint based on ICR's alleged failure to maintain the warning devices at the crossing where Mr. Kuntz was injured, see Michael v. Norfolk S. Ry. Co., 74 F.3d 271, 273 (11th Cir.1996); Anderson, 327 F.Supp.2d at 975 n. 4; Myers v. Missouri Pac. R.R. Co., 52 P.3d 1014, 1028 n. 50 (Okla.2002), ICR's alleged failure to maintain the road surface at the crossing, see Cox v. Norfolk & W. Ry. Co., 998 F.Supp. 679, 689 (S.D.W.Va.1998), and the alleged failure of ICR's train crew to maintain a proper lookout for motorists at the crossing. See Wood v. Minnesota Mining & Mfg. Co., 112 F.3d 306, 310-11 (8th Cir.1997); Baker v. Canadian Nat'l/Illinois Cent. Ry. Co., 397 F.Supp.2d 803, 811 (S.D.Miss.2005); Pearson v. Columbus & Greenville Ry. Co., 737 So.2d 390, 398 (Miss.Ct.App.1998). To the extent the allegations of the complaint regarding inadequate sight lines at the crossing are based on improper design of the crossing, this claim is not preempted either. See, e.g., Easterwood, 933 F.2d at 1557 & n. 8; Kansas City S. Ry. Co. v. Johnson, 798 So.2d 374, 376-77, 378 (Miss.2001).

i i i i i i MEMORANDUM OPINION No. 04-08-00540-CV IN RE: CLAIMED LIEN AND AMENDED LIEN OF JUDITH P. KENNEY & ASSOCIATES, P.C. From the 216th Judicial District Court, Kendall County, Texas Trial Court No. 03-493(B) Honorable Stephen B. Ables, Judge Presiding PER CURIAM Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice Delivered and Filed: September 24, 2008 DISMISSED Judith P. Kenney & Associates, P.C., Judith P. Kenney, Nat M. Kenney, III, T.W. Smith, Minnie Smith, and Melissa Peoples, Individually and as Independent Executrix of the Estate of Laura Smith Gault, Deceased, have filed a joint motion to dismiss the appeal, stating that the parties have settled their claims. Therefore, we grant the motion and dismiss the appeal. See TEX. R. APP. P. 42.1(a)(2), 43.2(f). Costs of the appeal are taxed against the parties who incurred them. PER CURIAM 

282 S.C. 616 (1984) 320 S.E.2d 482 Willis SAMUEL, Respondent, v. William David MOUZON and Eugene Fulton, Defendants of whom William David Mouzon is the Appellant. Appeal of William David MOUZON. 0255 Court of Appeals of South Carolina. Heard June 27, 1984. Decided September 10, 1984. *617 Wm. Reynolds Williams of Wilcox, Hardee, McLeod, Buyck & Baker, Florence, for appellant. W.E. Jenkinson, III of Jenkinson & Jenkinson, Kingstree, for respondent. *618 Heard June 27, 1984. Decided Sept. 10, 1984. SANDERS, Chief Judge: Respondent Willis Samuel sustained certain personal injuries as a passenger of a vehicle involved in a head-on collision with another vehicle driven by appellant William David Mouzon. Samuel was awarded a jury verdict in his action for damages based upon Mouzon's alleged negligence, and Mouzon appeals. We affirm. On the day of the collision, Samuel and three other passengers were returning from Kingstree, South Carolina, in a Ford van being driven by Eugene Fulton. Mouzon was driving a Ford Maverick in the opposite direction, toward Kingstree. Samuel testified that as the van rounded a curve it collided with the Maverick which was in its lane of travel. He also testified the van was going 40-45 m.p.h. in its proper lane at the time, to the right of the center line, and Fulton had no time to avoid the accident. Samuel further testified the lights of the Maverick did not flash or dim prior to the collision. Mouzon testified he had been on the highway for several miles and was driving 50-55 m.p.h. when he encountered the van in his lane. He said that in an effort to avoid the collision he sounded his horn, flashed his lights and drove onto the right shoulder, so that only his left two tires remained on the highway. A highway patrolman testified he arrived at the scene after the collision and found debris from it in the center of Mouzon's lane. In addition, he testified he found one continuous skid mark near the edge of the pavement in Mouzon's lane. According to his testimony, this mark eventually left the highway and extended onto the shoulder. He also testified he had a conversation with Fulton at the hospital after the accident in which Fulton told him about a tire on the van blowing out, and in fact, one of its tires was blown out. Fulton testified, essentially confirming the testimony of Samuel. He testified further that Mouzon had turned onto the highway from a side road just prior to the collision, without first stopping, and the van did not leave its proper lane until after the collision. He also testified new tires had been put on the van two months before the collision and said he did not *619 recall seeing or talking to the patrolman at the hospital. The owner of the van testified, confirming Fulton's testimony about the van's having new tires. He further testified he saw both Fulton and the patrolman at the hospital, but said Fulton was "in bad shape" and "wasn't able to talk." He said he asked the patrolman to leave Fulton alone because "he wasn't in no shape to talk to him." In addition, the owner testified he returned to the scene of the collision early the next morning and found antifreeze from the van in the center of Fulton's lane. He went on to testify that the van's radiator had burst and its left front bumper was pushed into the left front tire. One of the three other passengers in the van also testified Mouzon was traveling in the wrong lane and the tire on the van did not blow out prior to the collision. He confirmed Samuel's testimony concerning the speed of the van and the fact that Mouzon did not dim his lights. The jury returned a verdict for Samuel for actual and punitive damages. In an action at law tried by a jury, a reversal of the jury's verdict can only result when the only reasonable inference from the evidence is contrary to the factual findings implicit in the verdict. Willis v. Floyd Bruce Co., Inc., 279 S.C. 458, 309 S.E. (2d) 295 (S.C. App. 1983). We are not at liberty to substitute our view of the evidence for the verdict of the jury. Gurley, et al. v. United Services Automobile Association, 279 S.C. 449, 309 S.E. (2d) 11 (S.C. App. 1983). Of course, it is also our duty to correct any error of law. South Carolina Law Enforcement Division v. The "Michael and Lance," 315 S.E. (2d) 171 (S.C. App. 1984). We first address a question of law raised by Mouzon. I Mouzon first argues the trial judge erred in excluding the proffered testimony of the highway patrolman which would have shown Fulton was charged with driving left of center and forfeited bond on that charge. This testimony was proffered prior to and in anticipation of the trial judge's ruling it inadmissible. Although no ground for admissibility was asserted at trial, Mouzon now argues the testimony is admissible as an admission of a party opponent and for impeachment purposes. *620 It is well settled that while a criminal conviction is not a binding adjudication of a subsequent civil action based on the same facts, a judgment on a plea of guilty may be received into evidence as an admission, subject to explanation or rebuttal. Green v. Boney, 233 S.C. 49, 103 S.E. (2d) 732 (1958); Globe & Rutgers Fire Ins. Co. v. Foil, 189 S.C. 91, 200 S.E. 97 (1938). Mouzon argues this rule as to the admissibility of a guilty plea should be applied to bond forfeitures. He bases his argument in part on section 56-9-20 of the 1976 Code of Laws of South Carolina which defines both guilty pleas and bond forfeitures as "convictions." He also argues a bond forfeiture should constitute an admission as "silence in reply to an accusation." We reject these arguments for several reasons. In our opinion, a guilty plea and a bond forfeiture are not analagous for this purpose. A forfeiture by its very nature differs from a guilty plea because it involves the failure of a person to act rather than an affirmative act admitting wrong doing. It may also result from any of a variety of reasons, other than the intention to either make an admission or imply one by "silence," e.g., the cost of defense as well as the indirect economic loss and inconvenience of a court appearance as compared with the consequence of a forfeiture. We are of the further opinion that section 56-9-20 is inapplicable here. This section by its terms limits the definitions provided to Chapter 9 of Title 56 of the Code (the "Financial Responsibility Act"). Chapter 5 of Title 56 ("Traffic Regulations") contains a similar section providing that a guilty plea and a bond forfeiture "shall have the same effect as a conviction after trial under the provisions of such traffic laws." S.C. Code Ann. § 56-5-6220 (Supp. 1983). However, Chapter 5 also contains a section further providing: No evidence of conviction of any person for any violation of this chapter shall be admissible in any court in any civil trial. S.C. Code Ann. § 56-5-6160 (1976).[1] *621 In addition, both section 56-9-20 and section 56-5-6220 equate as "convictions" not only guilty pleas and bond forfeitures but nolo contendere pleas as well. Our Supreme Court has recognized that a nolo contendere plea is different from a guilty plea in that "a plea of nolo cannot be used as an admission against a defendant in civil litigation." Kibler v. State, 267 S.C. 250, 227 S.E. (2d) 199 (1976). See also In re Anderson, 255 S.C. 56, 177 S.E. (2d) 130 (1970) (plea of nolo contendere is not an admission of guilt except in case in which it is entered). Mouzon also argues on this point that even if the bond of forfeiture is not admissible as substantive evidence, it should have been received into evidence as conduct amounting to a prior inconsistent statement by Fulton impeaching his testimony "that he was driving in his own lane of travel." We also reject this argument. As previously discussed, there are many different reasons for a person to forfeit bond. In our opinion, the failure of a defendant to appear in court and thereby forfeit bond does not amount to conduct inconsistent with his later testimony that he was not guilty of the offense with which he was charged. See Hannah v. Ike Topper Structural Steel Co., 120 Ohio App. 44, 201 N.E. (2d) 63 (1963) (a traffic ticket and attached form authorizing entry of guilty plea, waiver of trial and payment of fine cannot be used in a subsequent automobile collision case as proof of conviction or prior inconsistent statement for impeachment). We therefore hold that the fact that a person has forfeited bond cannot be received into evidence either as an admission or for impeachment purposes in a subsequent civil case.[2] II Mouzon next argues that trial judge erred in denying his motion to strike certain allegations of negligence from the complaint based on a lack of evidence. The *622 allegations at issue are that Mouzon (1) failed to dim his lights, (2) failed to maintain a proper lookout, (3) failed to brake his vehicle, swerve or take any action to avoid the accident, and (4) drove at an excessive rate of speed. While the testimony presented by Samuel and Mouzon was in conflict on all of these allegations, the record reveals evidence from which the jury could have found Mouzon was negligent as to each. There was explicit testimony that Mouzon did not dim his lights. Although testimony was presented indicating Mouzon saw the van and attempted to take some form of evasive action immediately prior to colliding with it, what he did was obviously not sufficient to avoid the collision. As to the allegation of excessive speed, Mouzon admitted to driving at or near the maximum South Carolina speed limit. A finding that this speed was excessive under the circumstances can be inferred from testimony that his speed was such as to prevent Mouzon's being able to avoid the collision by controlling his vehicle so as to stay in his own lane while rounding a curve. We therefore hold the trial judge was correct in ruling there was sufficient evidence for the jury to consider these allegations of negligence. III Finally, Mouzon argues there is no evidence of recklessness, wilfulness or wantonness to support the award of punitive damages. Causative violation of an applicable statute by a motorist is evidence of recklessness, wilfulness and wantonness. Johnson v. Parker, 279 S.C. 132, 303 S.E. (2d) 95 (1983). Here, testimony was presented as to Mouzon's crossing the center line of the highway. Such conduct would at least be a violation of section 56-5-1810, as amended, which requires vehicles be driven on the right half of the road. This testimony alone is sufficient to support the award of punitive damages. The jury apparently chose to accept this testimony over that of the highway patrol concerning the location of debris at the scene of the accident which tended to support Mouzon's version of how the collision occurred. See Doe v. Asbury, 314 S.E. (2d) 849 (S.C. App. 1984) (sustained jury verdict which implicitly disregarded testimony of a policeman as to debris and tire marks). *623 Accordingly, the judgment is Affirmed. GARDNER and GOOLSBY, JJ., concur. NOTES [1] But see Addyman v. Specialties of Greenville, Inc., 273 S.C. 342, 257 S.E. (2d) 149 (1979) (holding this section does not bar the use of a guilty plea to violation of a traffic regulation as a prior inconsistent statement for the purpose of impeaching credibility). [2] We do mean to suggest that a conviction of a crime involving moral turpitude after a bond forfeiture could not be used for impeachment purposes in a subsequent proceeding. Cf. State v. Lynn, 277 S.C. 222, 284 S.E. (2d) 786 (1981) (defendant had pleaded nolo contendere to criminal sexual assault and State was allowed to use nolo plea to impeach his testimony in subsequent proceeding). ADDENDUM While not altogether necessary to the result we reach here, the following chart may be of some benefit to the trial bench and bar in synthesizing the cases cited in part I of this opinion: ________________________________________________ Admissible as Prior Admissible as Inconsistent Statement an Admission for Impeachment _________________________________________________________________________ Guilty Plea Green and Globe Addyman say YES says YES _________________________________________________________________________ Nolo Contendere Plea Kibler and Anderson UNDECIDED say No [*] _________________________________________________________________________ Bond Forfeiture Samuel Samuel says No says No _________________________________________________________________________ [*] Lynn allowed the admission of a nolo plea for impeachment. However, in that case it appears to impeach credibility by showing the bad character of witness, not as a prior inconsistent statement. The defendant was on trial for criminal sexual conduct. He had entered a nolo plea in a previous case to criminal sexual assault. Preliminary to deciding whether or not to take the stand as a witness in his own defense, he requested a ruling by the court as to whether, if he did so, his prior plea could be used to impeach his testimony. It did not appear the facts of the previous case had anything to do with the case in which he was on trial. The trial court ruled his prior plea could be used to impeach his testimony if he took the stand. On appeal, the Supreme Court affirmed, holding that the nolo plea entered by the defendant in the previous case amounted to a conviction. Of course, it is well settled that a conviction for a crime of moral turpitude may be used to impeach the credibility of a witness by showing bad character, without regard to what plea was entered. State v. LaBarge, 275 S.C. 168, 268 S.E. (2d) 278 (1980).

585 F.2d 943 ATLANTIC RICHFIELD COMPANY, Petitioner,v.FEDERAL POWER COMMISSION, Respondent. Nos. 76-1882, 76-1929. United States Court of Appeals,Ninth Circuit. Nov. 3, 1978. Edward J. Kremer, Jr., Dallas, Tex., for petitioner. Steven A. Taube, Atty., Washington, D. C., for respondent. On Petitions to Review Orders of the Federal Power Commission. Before HUFSTEDLER and TANG, Circuit Judges, and GRAY,* District Judge. PER CURIAM: 1 Atlantic Richfield Company ("ARCO") petitioned to review two orders of the Federal Power Commission ("FPC") on the grounds that the FPC improperly set "new gas" ceiling prices on ARCO's sales of natural gas to El Paso Natural Gas Company ("El Paso"). The FPC granted temporary certificates of public convenience and necessity enabling ARCO to make the sales to El Paso. Our jurisdiction rests on 15 U.S.C. § 717r(b). 2 The FPC ruled that the natural gas which ARCO contracted to sell in interstate commerce after January 1, 1973, was subject to the "old gas" price ceilings under FPC regulations, rather than the "new gas" ceilings established by the FPC's rate orders. The FPC ruling was based upon its determination that at the time of the sale, the gas had already been "dedicated" to interstate commerce and was therefore appropriately subject to the lower ceiling rates prior to January 1, 1973. 3 Both of these orders involve "farmout" agreements, under which an oil producer farms out a portion of the producer's leasehold interest to a different producer to explore for and to produce gas or oil. If the farmout recipient discovers gas in commercial quantities, he receives an assignment of the mineral rights lease and becomes a working interest owner. The original lessee retains an overriding royalty interest in the production. 4 In No. 76-1882, the agreement provided that after "payout," that is, after the farmout recipient recouped his costs through the sale of the production, the overriding royalty interest expired, the farmout recipient's assignment terminated, and the relinquished interest in the leasehold automatically reverted to the original lessee, who then had a working interest. In No. 76-1929, the original lessee had an option on payout of a one-quarter overriding royalty interest (instead of the prior one-eighth), or a 50 percent working interest; there was no automatic reversion. Both agreements follow the same pattern. The original lessee assigned his working interest to the farmout recipient, retaining a royalty interest; on payout, the royalty interest could be converted to a working interest and the assignment terminated. 5 The FPC's Order No. 6991 established a nationwide rate structure for producer sales of natural gas in interstate commerce. The order provided for a higher "new gas" rate for three classes of sales: (1) sales from wells commenced on or after January 1, 1973; (2) sales made pursuant to a contract executed on or after January 1, 1973, "for the sale of natural gas in interstate commerce for gas not previously sold in interstate commerce; " (3) sales made under a renewal contract if the prior contract had expired under its own terms and if either the renewal contract was executed or the original contract expired on or after January 1, 1973. All other gas remained subject to the lower "old gas" ceiling. 6 ARCO's applications for certificates for the wells in Nos. 76-1882 and 76-1929 requested authorization to sell at the higher "new gas" price. It contended that its gas had not previously been sold in interstate commerce. The theory was that the farmout recipients owned an interest only in that gas that would be produced during the payout period. All the rest of the gas was "ARCO's gas." The farmout recipients did not have an ownership interest in ARCO's gas, and could not contract to sell it. Neither could they "dedicate" it to interstate commerce since it was not their gas. Drawing a distinction between the farmout recipients' gas and ARCO's gas, ARCO argued that its gas had never been sold in interstate commerce (for by definition the farmout recipients could sell only the gas produced up until payout). 7 This case is controlled by State of California v. Southland Royalty Co., 436 U.S. 519, 98 S.Ct. 1955, 56 L.Ed.2d 505 (1978). The Supreme Court held that the service obligation created when a lessee for a term of years sold gas in interstate commerce and accepted a certificate of unlimited duration from the FPC attached to the gas itself and bound all those with dominion and power of sale over the gas, including the lessors to whom it reverted. The service obligation imposed by the FPC survived the expiration of the private agreement that gave rise to the FPC's jurisdiction. In rejecting the respondent's contention that the gas at issue was never impressed with an obligation to serve the interstate market because it had never been dedicated to an interstate sale, the Supreme Court explained: "The core of their argument is that 'no man can dedicate what he does not own.' . . . This maxim has an appealing resonance, but only because it takes unfair advantage of an ambiguity in the term 'dedicate.' . . . (G)as which is 'dedicated' pursuant to the Natural Gas Act is not surrendered to the public; it is simply placed within the jurisdiction of the Commission, so that it may be sold to the public at the 'just and reasonable' rates specified by § 4 of the Act. . . . Thus, by 'dedicating' gas to the interstate market, a producer does not effect a gift or even a sale of that gas, but only changes its regulatory status." (436 U.S. at 527, 528, 98 S.Ct. at 1960.) 8 The Supreme Court's holding in Southland Royalty Co. that a dedication of gas to interstate commerce by a lessee for a term of years binds the owner applies with even greater force to a case like this one in which petitioner is not the fee owner but a lessee. 9 ARCO argues that it is nevertheless entitled to the higher rate under the "renewal contract" provision of Order No. 699. The argument is untenable with respect to No. 76-1929 because the 1975 contract between El Paso and ARCO was not in any sense a "renewal" of a previous agreement. Prior to payout, El Paso, as the farmout operator, had produced gas for its own use, taking the gas directly into its interstate pipeline system. There was no expired contract to renew. Furthermore, the FPC has ruled that on-system production does not qualify for the renewal classification. 10 With respect to No. 76-1882, we do not reach the issue of renewal because ARCO did not preserve the point below. Under 15 U.S.C. § 717r(a), ARCO could not preserve the point without raising it upon its application for rehearing. We are not obliged to consider for judicial review an objection to an order of the FPC unless the objection was urged to the Commission itself, unless there is a reasonable excuse for failure to raise the question. (15 U.S.C. § 717r(b).) No reasonable excuse has been offered. Accordingly, we decline to consider the issue. (See Phillips Petroleum Co. v. Federal Power Commission (10th Cir. 1977) 556 F.2d 466, 471.) 11 AFFIRMED. * Honorable William P. Gray, United States District Judge, Central District of California, sitting by designation 1 39 Fed.Reg. 43213 (1974), 40 Fed.Reg. 2579, 2580 (1975), superseded after this appeal was taken by Opinion No. 770-A, 18 C.F.R. 2.56a (1977) and Opinion No. 749, 18 C.F.R. 2.56b (1977)

REVISED December 10, 2008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 08-60044 FILED Summary Calendar December 3, 2008 Charles R. Fulbruge III ABELARDO ANTONIO OROZCO Clerk Petitioner v. MICHAEL B MUKASEY, U S ATTORNEY GENERAL Respondent Petition for Review of an Order of the Board of Immigration Appeals A76 446 029 Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM:* Abelardo Antonio Orozco, a native and citizen of Colombia, petitions for review of an order of the Board of Immigration Appeals affirming the Immigration Judge’s denial of withholding of removal and request for relief under the Convention Against Torture. Orozco argues that the BIA erred in finding that he did not suffer past persecution or did not have a well-founded * 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. 08-60044 fear of future persecution or torture because of his immutable characteristics or political beliefs. The Secretary of Homeland Security or Attorney General is authorized, in his discretion, to grant asylum to aliens who qualify as refugees.1 An alien is a refugee when he is outside of his country and “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”2 To be eligible for withholding of removal, an alien must demonstrate a “clear probability” of persecution upon return.3 To be eligible for protection under the CAT, an alien must establish that he would be subject to torture “by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity.”4 Orozco’s assertion that he, as a detective, was threatened by a series of telephone calls in 1993 does not establish that he was persecuted because of his political opinion or that he has a well-founded fear of persecution or torture, under government sanction, for his political opinion in the future if he is returned to Colombia.5 Orozco has not shown any error of law in the IJ’s and BIA’s conclusion that he is not eligible for withholding of removal or relief under CAT, and has not shown that the decision is not supported by substantial evidence in the record. 1 8 U.S.C. § 1158(b)(1). 2 8 U.S.C. § 1101(a)(42)(A). 3 Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). 4 8 C.F.R. § 1208.18(a)(1). 5 See INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992); Tamara-Gomez v. Gonzales, 447 F.3d 343, 350 (5th Cir. 2006). 2  No. 08-60044 Orozco has not argued on appeal that his claim for asylum was not time barred. This issue is deemed abandoned. PETITION DENIED. 3 

936 F.2d 585 Banksv.Dugger*** NO. 90-3570 United States Court of Appeals,Eleventh Circuit. JUN 14, 1991 1 Appeal From: M.D.Fla. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case

435 F.Supp.2d 919 (2006) GOSS INTERNATIONAL CORPORATION, a Delaware corporation, Plaintiff, v. TOKYO KIKAI SEISAKUSHO, LTD., a Japanese corporation and TKS (U.S.A.), Inc., a Delaware corporation, Defendants. No. C00-35 LRR. United States District Court, N.D. Iowa, Cedar Rapids Division. June 15, 2006. *920 *921 Bradley P. Nelson, Ian H. Fisher, Jose A. Lopez, Steven A. Weiss, William G. Schopf, Schopf & Weiss, Chicago, IL, John R. Shane, Wiley Rein & Fielding LLP, Washington, DC, Patrick M. Roby, Robert M. Hogg, Elderkin Law Firm, Cedar Rapids, IA, for Plaintiffs. Barry J. Reingold, Perkins Coie, LLP, Lawrence R. Walders, Neil R. Ellis, Sidley Austin Brown & Wood, LLP, Washington, DC, Hoken S. Seki, Hoken S. Seki Law Offices, Lake Forest, IL, Nicholas V Critelli, Jr., Nicholas Tre Critelli, III, Nicholas Critelli Assoc., Des Moines, IA, Peter *922 J. Toren, Sidley Austin Brown & Wood, LLP, New York City, for Defendants. ORDER READE, District Judge. TABLE OF CONTENTS I. INTRODUCTION ...............................................................922 II. BACKGROUND .................................................................922 III. THE MERITS .................................................................923 A. Summary of Argument ....................................................924 B. Foreign Anti-Suit Injunctions Generally ................................924 C. Standards for Granting a Preliminary Injunction: Dataphase factors .....926 1. Likelihood of success on the merits ................................926 a. Preliminary considerations .....................................927 b. Circuit split ..................................................928 c. Analysis .......................................................928 2. Threat of irreparable harm .........................................930 3. Balance of harms ...................................................931 4. Public interest ....................................................931 5. Conclusion .........................................................931 IV. DISPOSITION ................................................................931 I. INTRODUCTION Before the court is the Motion for Preliminary and Permanent Injunctions ("Motion"), filed by Plaintiff Goss International Corporation ("Goss") (docket no. 512). II. BACKGROUND On December 3, 2003, a jury returned a verdict in favor of Goss on its claims that Defendants Tokyo Kikai Seisakusho, Ltd. and TKS (U.S.A.), Inc. (collectively "TKS") engaged in dumping in violation of the Antidumping Act of 1916, 15 U.S.C. § 72 (1994) ("1916 Act"). The jury awarded damages to Goss totaling $10,539,949.00. On December 4, 2003, pursuant to the 1916 Act's provision for treble damages, the court entered judgment in favor of Goss against TKS in the amount of $31,619,847.00, with interest thereon at the rate provided in 28 U.S.C. § 1961, and costs. On June 2, 2004, the court awarded Goss attorneys' fees and expenses in the amount of $3,484,158.00 and taxed costs against TKS in the amount of $681,475.05. On June 23, 2004, TKS filed a Notice of Appeal, in which it challenged all adverse rulings by the court. On December 3, 2004, Congress repealed the 1916 Act. Miscellaneous Trade & Technical Corrections Act of 2004, Pub.L. No. 108-429, § 2006(a), 118 Stat. 2434, 2597 (2004). However, Congress excluded all pending actions from the repeal. Id. § 2006(b). Therefore, the repeal does not affect this case. Goss Int'l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 434 F.3d 1081, 1083 (8th Cir.), reh'g and reh'g en banc denied, (8th Cir. 2006). On December 8, 2004, a new law came into force in Japan. Law No. 162 is entitled Amerika gasshuukoku no 1916 nen no han futuo renbai hou ni motoduki uketa rieki no henkan gimu tou ni kansuru tokubetsu sochi hou or "Special Measures Law Concerning the Obligation of Return of the Benefits and the Like under the United States Antidumping Act of 1916" ("Japanese Special Measures Law"). The law, a so-called "clawback statute,"[1] authorizes *923 Japanese parties, against whom a U.S. judgment has been rendered under the 1916 Act, to sue in Japan to recover the full amount of the judgment, interest and expenses, including attorney fees. Japanese Special Measures Law art. 3. It renders all wholly-owned parent companies and subsidiaries of the prevailing plaintiff in the U.S. action jointly and severally liable for the clawback judgment.[2]Id. Pursuant to a stipulation filed by the parties ("2004 Stipulation"), in late 2004 the court ordered that (1) "TKS shall not file suit or assert or attempt to assert any rights or remedies under the [Japanese Special Measures Law] . . . before all appeals, including without limitation any motion for rehearing or petition for certiorari, in this case are exhausted" and (2) "TKS shall provide Goss' counsel of record with fourteen (14) days' prior written notice before filing suit or asserting or attempting to assert any rights or remedies under the [Japanese Special Measures Law]. . . ." On January 23, 2006, the Eighth Circuit Court of Appeals affirmed the court's judgment in all respects. Goss, 434 F.3d at 1099. On April 14, 2006, the Eighth Circuit Court of Appeals denied TKS's Motions for Rehearing and Rehearing En Banc. On June 5, 2006, the Supreme Court denied TKS's Petition for a Writ of Certiorari. Tokyo Kikai Seisakusho, Ltd. v. Goss Int'l Corp., ___ U.S. ___, 126 S.Ct. 2363, ___ L.Ed.2d ___ (2006). On June 5, 2006, hours after the Supreme Court denied TKS's petition for a writ of certiorari, TKS gave Goss notice that it intended to file suit and assert its rights under the Japanese Special Measures Law. Pursuant to the 2004 Stipulation and the court's order enforcing it, under the status quo, TKS may file suit in Japan under the Japanese Special Measures Law on June 19, 2006. On June 8, 2006, Goss filed the instant Motion. On June 12, 2006, TKS filed a Resistance. On June 14, 2006, the court held a hearing ("Hearing") on the Motion, insofar as it requests a preliminary injunction.[3] Attorneys William Schopf and Ian Fischer represented Goss. Attorneys Peter Toren, Honken Seki, Donald Renaldo and Nicholas Critelli represented TKS. The Motion is fully submitted, and thus the court turns to consider it. III. THE MERITS[4] *924 A. Summary of Argument In the Motion, Goss asks the court for a foreign anti-suit injunction. That is, Goss requests a preliminary . . . injunction[] enjoining [TKS] and their representatives, officers, directors, agents, attorneys, employees, and shareholders, and anyone acting in concert with them, from asserting or attempting to assert or pursue any rights or remedies granted under [the Japanese Special Measures Law] against Goss or any of its affiliates or subsidiaries. Goss contends that the Japanese Special Measures Law "directly attacks the [c]ourt's final jurisdiction and judgment." Goss points out that "the sole basis for Goss's liability under the Japanese [Special Measures Law] is Goss's receipt of damages awarded by this [c]ourt." Goss contends an injunction is necessary to protect the court's jurisdiction and its judgment from "imminent danger of being invalidated and undone." Goss contends that it is fundamentally unfair for a company, like TKS, to do business in the United States for decades, intentionally violate the laws of the United States, litigate in the United States' federal courts for more than six years, and then "thumb its nose at this [c]ourt and the federal judiciary by taking advantage of special legislation in Japan. . . ." Goss points out that TKS recently announced its plans to continue to do business in the United States "for years to come" and to "compete vigorously for new business and services in the United States." (Hearing Exhibit 2). TKS resists Goss's request for a foreign anti-suit injunction. TKS strenuously objects to Goss's characterization of its activities and denies it is "thumbing its nose" at the federal judiciary. TKS contends that Goss has not demonstrated that the court should grant a preliminary injunction. TKS urges the court to "respectfully decline to interfere with the judicial proceedings of a foreign sovereign." B. Foreign Anti-Suit Injunctions Generally The parties agree that the court has the equitable power to issue a foreign anti-suit injunction. "It is beyond question that a federal court may enjoin a party before it from pursuing litigation in a foreign forum." Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004) (citing China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 37 (2d Cir.1987)); Quaak v. Klynveld Peat Marwick Goerdeler Bedrilfsrevisoren, 361 F.3d 11, 16 (1st Cir.2004) (similar); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th Cir.1996) (similar); Cargill, Inc. v. Hartford Accident & Indem. Co., 531 F.Supp. 710, 715 (D.Minn.1982) (similar); see, e.g., Medtronic, Inc. v. Catalyst Research Corp., 664 F.2d 660, 661-66 (8th Cir.1981) (affirming district court's decision to grant preliminary injunction enforcing contractual agreement not to seek injunctive relief against the other party in foreign courts but permitting each to seek damages in foreign courts); see also Robin Cheryl Miller, Annotation, Propriety of federal court *925 injunction against suit in foreign country, 1986 WL 361603, 78 A.L.R. Fed. 831, § 2[a] (1986) ("A federal court's power to enjoin a party to a suit before the court from commencing . . . litigation in a foreign country is apparently unquestioned."). The parties also agree that the All Writs Act, 18 U.S.C. § 1651, empowers the court to issue an injunction barring TKS from filing suit under the Japanese Special Measures Law. The All Writs Act grants the court the power to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a); see, e.g., Phillips Beverage Co. v. Belvedere, S.A., 204 F.3d 805, 806 (8th Cir.2000) (affirming district court's order, pursuant to the All Writs Act, that a party withdraw its application before the Customs Service because the application asked the Customs Service to do what the district court had already forbidden and the district court had an obligation to protect its judgment). Even though a federal district court has the power to issue a foreign anti-suit injunction, it is not a power the court should exercise lightly or with abandon. "Determining the appropriateness of an international antisuit injunction is a highly nuanced exercise." Quaak, 361 F.3d at 16. "[P]rinciples of comity counsel that injunctions restraining foreign litigation be `used sparingly' and `granted only with care and great restraint.'" Paramedics, 369 F.3d at 652 (quoting China Trade, 837 F.2d at 36); cf. Donovan v. City of Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964) ("Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other's proceedings. That rule has continued substantially unchanged to this time." (Footnote omitted.)). Clearly, a federal district court should not lightly interfere with judicial proceedings in other sovereign nations. The foreseen and unforeseen consequences of the court's actions are potentially myriad and may manifest themselves at an international level. See George A. Bermann, The Use of Anti-Suit Injunctions in International Litigation, 28 Colum. J. Transnat'l L. 589, 604 (1990) ("Judicial interference with a foreign country's exercise of adjudicatory authority has a potential for embarrassing the political branches of government and disturbing our relations with that country.") In sum, the court is cognizant that it must proceed with great caution before issuing a foreign anti-suit injunction — even if the injunction is issued only on a preliminary basis. A court must avoid a modernday Scylla and Charybdis and "find a way to accommodate conflicting, mutually inconsistent national policies without unduly interfering with the judicial processes of a foreign sovereign." Quaak, 361 F.3d at 16 (citing Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 916 (D.C.Cir.1984)). As the First Circuit Court of Appeals recently recognized, this difficult task is "particularly formidable given the absence of guidance from the Supreme Court," "the paucity of precedent"[5] and an apparent circuit-split. Id.; see also id. at 16-17 (discussing split between circuit courts of appeals). In this case, the court must navigate these troubled waters in just two days.[6] *926 C. Standards for Granting a Preliminary Injunction: Dataphase factors In the Eighth Circuit, applications for preliminary injunctions are generally measured against the standards set forth in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). See Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 444 F.3d 991, 994 (8th Cir.2006) (applying Dataphase factors).[7] The party moving for a preliminary injunction has the burden of establishing entitlement to such relief. Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994) (citing Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir. 1989) (en banc)). The court must consider four factors: (1) the movant's likelihood of success on the merits; (2) the threat of irreparable harm to the moving party; (3) the balance between this harm and the injury that granting the injunction will inflict on other interested parties; and (4) whether the grant of a preliminary injunction is in the public interest. Dataphase, 640 F.2d at 114. "None of these factors by itself is determinative; rather, in each case the four factors must be balanced to determine whether they tilt toward or away from granting a preliminary injunction." West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir.1986). A party moving for a preliminary injunction is required to establish a sufficient threat of irreparable harm. Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir.1996). The district court has broad discretion when ruling on requests for preliminary injunctions and a reviewing court will reverse only for an abuse of discretion, clearly erroneous factual determinations or the application of an incorrect legal standard. United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998). The court now turns to consider the four Dataphase factors. 1. Likelihood of success on the merits The first factor the court must consider under Dataphase when ruling on Goss's Motion is the likelihood or probability of success on the merits. Pottgen v. Mo. State High Sch. Activities Ass'n, 40 F.3d 926, 929 (8th Cir.1994). In considering this factor, the court need not decide whether Goss ultimately will succeed on the movant's claims. Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, *927 371 (8th Cir.1991). Rather, the movant's success on the merits must be "at least . . . sufficiently likely to support the kind of relief it requests." Sanborn Mfg. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 488 (8th Cir.1993). Thus, a showing of likelihood of success on the merits requires simply that the moving party find support for its position in the governing law. Baker Elec. Co-op., 28 F.3d at 1473-74. a. Preliminary considerations Goss contends that because it has prevailed on the merits of its claims under the 1916 Act, it has "already prevailed on the merits," and thus the first Dataphase factor weighs in favor of granting a preliminary injunction. The court cannot accept this argument. Goss's request for a permanent injunction and its original Complaint alleging a violation of the 1916 Act are separate legal issues — indeed, the latter was resolved at all levels of the federal judiciary days before the former was even filed. The court agrees with TKS that the correct question before the court on this Dataphase factor is "whether Goss is likely to prevail on its motion for an anti-suit injunction." See In re Y & A Group Sec. Litig., 38 F.3d 380, 383 (8th Cir.1994) ("A preliminary injunction will only be issued where it appears that the petitioner is likely to succeed on the merits in proving that a permanent injunction is warranted"). The court shall thus consider the traditional standards by which courts have determined whether to grant foreign antisuit injunctions. See Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 364 (5th Cir.2003) (equating likelihood of success on merits standard with traditional standards by which courts have decided to grant foreign anti-suit injunctions); see also Dataphase, 640 F.2d at 113 ("At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined."). The Eighth Circuit Court of Appeals has not had the opportunity to indicate what standards apply for the issuance of foreign anti-suit injunctions. It is settled, however, that a foreign anti-suit injunction is only appropriate if the foreign litigation involves the same issues and parties as the federal action and if the federal action is dispositive of the foreign litigation. E.J. Gallo Winery v. Andina Licores, S.A., 446 F.3d 984, 991 (9th Cir. 2006); Paramedics, 369 F.3d at 652; Quaak, 361 F.3d at 18; Medtronic, Inc. v. Catalyst Research Corp., 518 F.Supp. 946, 955 (D.Minn.1981) ("The parties must be the same; the issue must be the same; and the resolution of the first action must be dispositive of the action to be enjoined." (Citations omitted.)), aff'd on other grounds, 664 F.2d 660 (8th Cir.1981); see also Cargill, 531 F.Supp. at 715 ("The threshold question is whether the parties are the same in both actions, the issues are the same, and resolution of the first action will be dispositive of the action to be enjoined."). In this case, the issues are the same and the United States action is dispositive of the foreign litigation. As Goss points out, the sole basis for Goss's liability under the Japanese Special Measures Law is Goss's receipt of damages awarded by this court. The judgment and jurisdiction of this court is thus intimately tied to any future action TKS might file under the Japanese Special Measures Law. The court also finds that the parties are the same. It is immaterial that the target of TKS's suit in Japan would in the first instance be Goss Japan, because Goss Japan is a subsidiary of Goss. Medtronic, 518 F.Supp. at 955. *928 b. Circuit split Beyond this threshold question, there is presently a circuit split as to what factors a court must consider before issuing an anti-suit injunction. See Quaak, 361 F.3d at 17 (discussing differences between the so-called "liberal approach," which the Fifth and Ninth Circuit Courts of Appeals have adopted, and the so-called "conservative approach," which the First, Second, Third, Sixth and D.C. Circuit Courts of Appeals have adopted) (reiterating nomenclature set forth in Note, Antisuit Injunctions and International Comity, 71 Va. L.Rev. 1039, 1049-51 (1985)); see also Gau Shan Co., Ltd. v. Bankers Trust Co., 956 F.2d 1349, 1353 (6th Cir.1992) (similarly recognizing circuit split). The difference between the two approaches concerns how much weight the court should give to considerations of international comity. See id. Compare Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 (5th Cir.1996) (inquiring as to whether international antisuit injunction would "actually threaten relations" between nations), with Quaak, 361 F.3d at 18-19 (holding that courts must consider "the totality of the circumstances" and determine whether there is sufficient evidence to overcome a "rebuttable presumption" against international anti-suit injunctions). The Supreme Court has defined comity as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.S. 113, 164, 16 S.Ct. 139, 40 L.Ed. 95 (1895); accord Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 543 n. 27, 107 S.Ct. 2542, 96 L.Ed.2d 461 ("Comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states."). c. Analysis The court finds that, under either the liberal or the conservative approach, Goss has met its burden. Even among those courts that afford international comity the greatest respect, it is settled that considerations of comity have diminished force when, as here, one court has already reached judgment. See Paramedics, 369 F.3d at 655 ("[W]here one court has already reached a judgment — on the same issues, involving the same parties — considerations of comity have diminished force."). As the D.C. Circuit explained: Courts have a duty to protect their legitimately conferred jurisdiction to the extent necessary to provide full justice to litigants. Thus, when the action of a litigant in another forum threatens to paralyze the jurisdiction of the court, the court may consider the effectiveness and propriety of issuing an injunction against the litigant's participation in the foreign proceedings. These situations may arise either before or after a judgment has been entered. The policies that guide the exercise of discretion vary slightly in each situation. When the injunction is requested after a previous judgment on the merits, there is little interference with the rule favoring parallel proceedings in matters subject to concurrent jurisdiction. Thus, a court may freely protect the integrity of its judgments by preventing their evasion through vexatious or oppressive relitigation. Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 927-928 (D.C.Cir.1984) (footnotes omitted). Similarly, the First Circuit Court of Appeals writes: *929 Where . . . a party institutes a foreign action in a blatant attempt to evade the rightful authority of the forum court, the need for an antisuit injunction crests. See Laker Airways, 731 F.2d at 929-30. . . . In technical terms, [the foreign action] may not constitute a frontal assault on the district court's jurisdiction, but the practical effect is the same. That is a matter of considerable import: a court has a right — indeed, a duty — to preserve its ability to do justice between the parties in cases that are legitimately before it. See id. at 930; see also Davis, 767 F.2d at 1039 (upholding an antisuit injunction as "necessary to ensure a complete adjudication of the matter before it"). Quaak, 361 F.3d at 20; accord Mut. Sere. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1324-25 (11th Cir.2004) (affirming district court's decision to permanently enjoin offshore insurers from litigating on the Isle of Man because the district court had already issued judgment on the merits and the "`only conceivable benefit that [the foreign defendants] would reap if the district court's injunction were overturned would be the right to attack the pending United States action in a foreign court.'" (quoting Laker Airways, 731 F.2d at 915)). The court finds that TKS's intended invocation of the Japanese Special Measures Law is a direct attack on this court's judgment in favor of Goss and a frontal assault on the jurisdiction of this court and the federal judiciary as a whole. "[A] direct interference with the jurisdiction of [an] United States court justifie[s] the defensive issuance of an antisuit injunction . . ." Gau Shan, 956 F.2d at 1356 (citing Laker Airways, 731 F.2d at 915). In effect, TKS seeks to institute a lawsuit "for the sole purpose of terminating" this court's judgment in Goss's favor, thereby in a single filing attempting to undo six years of federal court litigation. See id. (discussing Laker Airways). The court finds TKS's proposed litigation in Japan, after six years of litigation in the Untied States, is clearly vexatious and oppressive. The court does not dispute the affidavit testimony of TKS's expert, Professor George Bermann, who opines that the issuance of an anti-suit injunction in this case would be deeply offensive to the Japanese government. The court is aware that the issuance of a preliminary injunction in this case may have international repercussions. Weighing all the factors and looking at this case in its procedural context, however, the court finds that its interest in protecting the integrity of its judgments and jurisdiction outweighs concerns over international comity. The court's conclusion is strengthened by the unique circumstances of this case. The court's decision is consistent with the decisions of the legislative and executive branches of the United States government. When Congress passed the bill repealing the 1916 Act and the President signed it, the legislative and executive branches deliberately chose to enact a law that operates prospectively. Miscellaneous Trade & Technical Corrections Act of 2004, Pub.L. No. 108-429, § 2006(b), 118 Stat. 2434, 2597 (2004). Moreover, Congress was aware of this particular case, the jury's award and that the defendant was a Japanese company. See H.R. Rep. 108-415, at 17 (2004) ("The only 1916 Act case now pending is an Iowa case in which a jury found $10.5 million in actual damages against a Japanese company on December 3, 2003."). Congress and the President were also presumably aware that the Japanese government wanted a retroactive repeal of the 1916 Act. It was and remains the position of the Japanese government that the 1916 Act and this court's judgment was and is in violation of the United States' obligations as a member of the World Trade Organization. See Statement *930 of Senator Charles Grassley, Statements on Introduced Bills and Joint Resolutions (Senate, May 23, 2003), available at http://thomas.loc. gov; Bermann Declaration, passim. The fact that the legislative and executive branches were aware of this court's judgment and deliberately chose not to undo it through a retroactive repeal of the 1916 Act must inform the weight this court must give to international comity in this case. It is not the province of this court or the federal judiciary in general to rewrite the foreign policy of the United States government, as expressed by the legislative and executive branches of government. A recent discussion from the Eighth Circuit Court of Appeals, albeit in a different context, is instructive: Applying Dataphase, we look at the public's interest and the balance of the harms caused by a grant of injunctive relief on the one hand, and a failure to grant injunctive relief on the other. On these two factors, we give great weight to the fact that Congress already declared the public's interest and created a regulatory and enforcement framework that balanced the need for regulation against the harm of closure. As noted by the Supreme Court: "[a] court sitting in equity cannot ignore the judgment of Congress, deliberately expressed in legislation. A district court cannot, for example, override Congress' policy choice, articulated in a statute, as to what behavior should be prohibited. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is . . . for the courts to enforce them when enforcement is sought. Courts of equity cannot, in their discretion, reject the balance that Congress has struck in a statute." In re Sac & Fox Tribe of Miss. in Iowa/Meskwaki Casino Litig., 340 F.3d 749, 760 (quoting United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 497-98, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (internal citations and quotation marks omitted)). Accordingly, the court finds the first Dataphase factor, likelihood of success on the merits, weighs in favor of granting a preliminary injunction in this case. 2. Threat of irreparable harm The next factor the court must consider is the degree of irreparable harm, if any, Goss would suffer if the court does not grant the preliminary injunction. The party moving for a preliminary injunction generally may show irreparable harm by showing that the movant has no adequate remedy at law. United States v. Grand Labs., Inc., 174 F.3d 960, 965 (8th Cir. 1999). Proof that an adequate legal remedy, such as a damages claim, exists supports an inference that no irreparable harm will occur. Moore Business Forms, Inc. v. Wilson, 953 F.Supp. 1056, 1062 (N.D.Iowa), aff'd, 105 F.3d 663 (8th Cir. 1996). The fact that a valid damages claim is available does not necessarily foreclose the issuance of injunctive relief, however, because money damages may not fully compensate a movant for less tangible injuries. Id. The court finds that Goss would suffer great harm if the court does not grant the preliminary injunction. This harm is not limited to TKS's ability to clawback the judgment at issue from Goss's Japanese subsidiary, Goss Japan. At the Hearing, Goss's executive vice-president, chief financial officer and secretary, Joseph Patrick Gaynor, III, testified. Mr. Gaynor is a member of the Board of Directors of Goss Japan. Mr. Gaynor testified that Goss Japan is currently running a "break even operation." If TKS sues Goss Japan under the Japanese Special Measures Law, lenders might balk at loaning Goss Japan money. Goss Japan's customers — in essence *931 its unsecured creditors — would be wary to advance money for Goss Japan's products. Based on Mr. Gaynor's testimony and the court's own common sense, the court finds that the Japanese Special Measures Law poses a threat to the survival of Goss Japan and would thus harm Goss. Accordingly, the court finds the second Dataphase factor, the threat of irreparable harm, weighs in favor of granting a preliminary injunction in this case. 3. Balance of harms The court finds the threat of irreparable harm to Goss in this case outweighs the harm to TKS that may be occasioned by its inability to avail itself of the Japanese Special Measures Law while the court considers Goss's Motion for Permanent Injunction. The court will rule upon the Motion for Permanent Injunction expeditiously. This factor, therefore, weighs in favor of the issuance of the requested preliminary injunction. 4. Public interest The final factor the court must consider in determining whether to issue the requested preliminary injunction is whether public interest favors preventing TKS from availing itself of the Japanese Special Measures Law while the court considers Goss's Motion for Permanent Injunction. The court finds that it does. The court incorporates by reference its discussion and findings regarding Congress's repeal of the 1916 Act in its analysis of the first Dataphase factor. It is clear that the public has an interest in preserving the jurisdiction of the federal judiciary. Moreover, the legislative and executive branches, acting in the public interest, have determined that the court's judgment should be enforced. This factor therefore weighs in favor of the issuance of the requested preliminary injunction. 5. Conclusion Because all four Dataphase factors weigh in favor of the issuance of a preliminary injunction, the court shall grant Goss's Motion. The court stresses, however, that it does not purport to enjoin the government of Japan or the Japanese judiciary; rather, it is enjoining TKS from availing itself of the Japanese Special Measures Law. Even so, the court does not enjoin a party from availing itself of a foreign remedy lightly. The court also stresses that this is only a "preliminary assessment" pending consideration of Goss's request for a permanent injunction. Medtronic, 664 F.2d at 665. The court recognizes that "[t]he equities of this situation . . . may change." Id. The court finds, however, that, at this moment, justice requires it to intervene to preserve the status quo until the merits of Goss's request for a permanent injunction are determined after fuller consideration. IV. DISPOSITION Goss's Motion for Preliminary and Permanent Injunctions (docket no. 512) is GRANTED IN PART. The court grants Goss's Motion insofar as it requests a preliminary injunction. The court enjoins TKS and their representatives, officers, directors, agents, attorneys, employees, and shareholders, and anyone acting in concert with them, from asserting or attempting to assert or pursue any, rights or remedies granted under the Japanese Special Measures Law against Goss or any of its affiliates or subsidiaries. The court RESERVES RULING on Goss's Motion insofar as it requests a permanent injunction. The court shall establish an orderly *932 briefing schedule on the Motion in the near future. IT IS SO ORDERED. NOTES [1] Generally speaking, a clawback statute is a statute that enables a defendant who has paid judgment damages in an overseas country to recover that judgment from the successful plaintiff in the defendant's home country. See Joseph E. Neuhaus, Power to Reverse Foreign Judgments: The British Clawback Statute Under International Law, 81 Colum. L.Rev. 1097, 1097-98 (1981). [2] The clawback statute is not unique to Japan. The European Union has a similar provision. On December 15, 2003, the European Council promulgated a similar clawback regulation. See Council Regulation (EC) No. 2238/2003 of December 15, 2003, O.J. (L 333). The European Council regulation authorizes nationals and residents of the European Union to sue for recovery of damages, costs and miscellaneous expenses suffered in the United States as a consequence of the 1916 Act from the plaintiff in the 1916 Act action or from certain entities related to that plaintiff. The clawback statutes were enacted because it is the position of Japan and the European Union that the 1916 Act violates the United States's obligations under a 1994 World Trade Agreement regarding antidumping legislation: See generally Goss, 434 F.3d at 1090 n. 5 (discussing international legal aspects of 1916 Act). [3] At the Hearing, it became clear that, at this time, only the preliminary injunction is at issue. The court shall reserve ruling on the Motion insofar as Goss requests a permanent injunction. In due course, the court shall set a briefing schedule on the permanent injunction request. [4] At the Hearing on TKS's Emergency Motion for Continuation of Stay of Enforcement of Judgment and to Preserve the Status Quo of the Ownership of Goss Japan ("Emergency Motion"), counsel for TKS stated that "our [M]otion would have been really better . . . phrased as conditions upon which [Goss's pending motion for] preliminary injunction should issue, if, in fact, the court were to issue a preliminary injunction enjoining TKS from bringing suit under the clawback statute in Japan." Counsel for TKS requested that, "rather [than] view it as a separate proceeding, as a separate request, if Your Honor would . . . respectfully consider it as part of the request that, should Your Honor issue the preliminary injunction. . . ." The court grants TKS's request, insofar as possible; it has reread the Emergency Motion and will attempt to present TKS's arguments in their best light. [5] Although the Quaak court was referring to the fact that there are few First Circuit Court of Appeals cases on point, matters are worse in the Eighth Circuit. The parties cite no on point Eighth Circuit Court of Appeals cases it appears the Eighth Circuit Court of Appeals has never had the occasion to discuss the standards for issuing a preliminary foreign anti-suit injunction. But see Medtronic, 664 F.2d at 661-66 (affirming grant of foreign anti-suit injunction). [6] Despite several abortive efforts, the parties called the undersigned this afternoon and informed her that they were unable to reach an agreement to give the court more time to consider this matter. [7] A number of other circuit courts of appeals have rejected the usual standards for measuring the merits of an application for a preliminary injunction in the context of an application for a foreign anti-suit injunction. See, e.g., Karaha Bodas Co., LLC v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 364 (5th Cir.2003) ("Although both the district court and the parties discussed all four prerequisites to the issuance of a traditional preliminary injunction, the suitability of such relief ultimately depends on considerations unique to antisuit injunctions."); see also E & J Gallo Winery v. Andina Licores, S.A., 446 F.3d 984, 990-91 (9th Cir.2006) (adopting Fifth Circuit approach and holding that movant "need not meet our usual test of a likelihood of success on the merits of the underlying claim" but instead "need only demonstrate the factors specific to an anti-suit injunction weigh in favor of granting the injunction"). These courts have narrowed the inquiry to whether the movant is likely to succeed on the merits, considering a number of factors specific to the propriety of anti-suit injunctions. Karaha, 335 F.3d at 364 n. 19. Because the Eighth Circuit Court of Appeals has not yet carved out such an exception to Dataphase, the court shall consider all four Dataphase factors. This decision is immaterial in the present case, however, because the court shall find that all four Dataphase factors weigh in favor of the issuance of a preliminary injunction.

746 N.W.2d 811 (2008) STATE v. RUSSELL. No. 2006AP2222. Supreme Court of Wisconsin. February 21, 2008. Petition for review denied.

105 Ill. App.3d 698 (1982) 434 N.E.2d 776 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD REYNOLDS, Defendant-Appellant. No. 81-308. Illinois Appellate Court — Third District. Opinion filed March 19, 1982. *699 *700 Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender's Office, of Ottawa, for appellant. John A. Barra, State's Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State's Attorneys Appellate Service Commission, of counsel), for the People. Affirmed in part, and vacated and remanded in part. JUSTICE STOUDER delivered the opinion of the court: Defendant Donald Reynolds was indicted for armed robbery. Following a jury trial in the circuit court of Peoria County, he was convicted and sentenced to 20 years imprisonment. Shortly before 9 p.m. on March 11, 1979, closing time at the Long John Silver's restaurant which was robbed, a man and several companions entered the establishment. Assistant manager Michael Enerson waited on the man and then returned to his closing duties. At 9:15 p.m. the man came into the office and ordered Enerson, at gunpoint, to lie on the floor. The intruder asked about the alarm system and whether anyone would be coming to the office. He then had Enerson put money in a bag and, after obtaining a key from another employee, opened the safe. The man then ordered Enerson back on the floor and pulled phone wires out of the wall in the office and kitchen. Enerson and the other employees, who had been similarly ordered to lie on the floor during the crime, were then ordered into the walk-in cooler. At trial, Enerson testified that he had never before seen defendant, who himself claimed that he had eaten at the restaurant 40 or 50 times. Two other employees positively identified defendant as the armed robber at a lineup and at trial. *701 In addition to the identification testimony regarding the instant offense, two other witnesses identified defendant as the perpetrator of similar crimes under the motive, intent, identity, absence of mistake, or modus operandi exception to the general rule prohibiting such testimony. (People v. Romero (1977), 66 Ill.2d 325, 362 N.E.2d 288.) James Turner testified that at approximately 10 p.m. on May 20, 1979, defendant entered a Long John Silver's restaurant in Melville, Missouri. Turner was in the back room counting the day's receipts when defendant approached him with a gun and told him to lie on the floor. Defendant then had him put the money into a bag and, pursuant to an employee's suggestion, ordered them into the cooler. After ripping out the telephone wires, he departed. John Torris testified that at approximately 11 p.m. on November 21, 1979, defendant, who had been the last customer of the day, approached him with a dark-colored gun. Torris had been about to explain that the Burger King restaurant in Pekin was closed when defendant ordered all employees to lie down in the rear of the establishment. Torris was then ordered to put money in a bag and to open the safe. Defendant ordered the employees into the cooler, ripped off the telephone wires, and departed. Appropriate limiting instructions were offered after each of these victims testified. Defendant countered the State's identification by claiming that, unlike the perpetrators of these armed robberies, he did not wear a beard until late April or early May of 1979. Photographs, identified as being taken in late January and early April of that year, showed him to be clean-shaven, as he was at trial. Cheryl Ann Johnson and Joseph Balli, both of whom testified that they saw defendant frequently during the relevant period, corroborated defendant's testimony. In rebuttal, Laurie Schmidt testified that on February 2, 1979, defendant was in the Ben Franklin store in Seymour, Wisconsin, where she worked, and was wearing a full beard. On cross-examination, she stated that defendant had handed her a note saying he had a gun and wanted money, which she gave him. She also told the police she would never forget the robber's face. In surrebuttal, defendant denied ever having been in the store. Defendant also presented an alibi defense. He testified that at the time of the offense he was having a telephone conversation with his fiance, Rhonda Barnacal. Barnacal corroborated his testimony, stating that they talked continually from 8 p.m. to 11 p.m. on the evening in question. Additional facts will be presented in our discussion of the issues. • 1 The first of the six issues presented for our review is whether defendant was denied the effective assistance of counsel. Before turning to this issue, we must address defendant's contention that a Federal standard should be employed to determine the competency of counsel, and the burden should be on the State to establish the lack of prejudice to *702 defendant. As the Supreme Court of Illinois had declined to adopt a new standard (see People v. Greer (1980), 79 Ill.2d 103, 120-21, 402 N.E.2d 203, 211-12; People v. Murphy (1978), 72 Ill.2d 421, 438, 381 N.E.2d 677, 686), so shall we. Therefore the inadequacy of a defendant's trial counsel entitled him to a new trial if counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different. (People v. Watson (1981), 98 Ill. App.3d 296, 424 N.E.2d 329; People v. Talley (1981), 97 Ill. App.3d 439, 422 N.E.2d 1084; People v. Scott (1981), 94 Ill. App.3d 159, 418 N.E.2d 805.) This a defendant "must clearly establish." People v. Georgev (1967), 38 Ill.2d 165, 168, 230 N.E.2d 851, 854, cert. denied (1968), 390 U.S. 998, 20 L.Ed.2d 97, 88 S.Ct. 1202. • 2, 3 Defendant contends that he was prejudiced by six acts and omissions. The first was that counsel allegedly disclosed privileged communications and disclosed trial strategies. The disclosure argument is based on the fact that during discovery, defense counsel furnished the State with memoranda of his interviews with witnesses, including defendant. Supreme Court Rule 413(d)(i) (Ill. Rev. Stat. 1979, ch. 110A, par. 413(d)(i)) requires the production of "memoranda reporting or summarizing [such] oral statements." As for the memoranda reflecting defendant's statements, they reflected his testimony at trial. We find neither incompetence nor prejudice in this practice, although certainly our holding would differ if a confidential admission or confession were involved. The trial strategies which were disclosed were that defendant would claim he had no beard at the time of the offense, and would present an alibi defense. Supreme Court Rule 413(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 413(d)) requires the former disclosure; Supreme Court Rule 413(d)(iii) (Ill. Rev. Stat. 1979, ch. 110A, par. 413(d)(iii)), the latter. Again we find neither incompetence nor prejudice. People v. Knippenberg (1977), 66 Ill.2d 276, 362 N.E.2d 681, cited by defendant, is inapposite. Knippenberg involved a situation where the State obtained a summary of what the defendant had told a defense investigator, which was used to impeach the defendant's trial testimony. No such impeachment was here attempted. • 4 The second alleged instance of incompetence was the failure to interview certain eyewitnesses; however, defendant does not allege that they were aware of any fact which would be exonerating or otherwise helpful to his defense. The same is true regarding the failure to interview one nonoccurrence witness. We fail to see how defendant was thereby prejudiced. • 5 The third contention is that counsel failed to interview witnesses in the presence of a third party or, in the alternative, withdraw from the *703 case. Defendant premises this contention on the basis that certain prior inconsistent statements could not be used for impeachment. While we agree it is the better practice, defendant cites no decision holding the failure to interview witnesses in the presence of a third party to be incompetence. Similarly no decision is cited holding the failure to withdraw and attempt to testify constitutes incompetence. If counsel had elected to follow one of defendant's recommendations on appeal, it merely would have allegedly established that two witnesses were more certain of their identification at trial than during a lineup, and that Enerson thought the witnesses were lying. Counsel questioned all three about these matters. One witness admitted he was more certain of his identification at trial. The other denied ever being uncertain, and Enerson specifically denied the statement attributed to him. Defendant further does not explain the basis of the purported admissibility of a third person's recollection of Enerson's opinion of the veracity of other witnesses. Given these circumstances, we find neither incompetence nor prejudice. • 6 Defendant's fourth contention regarding his trial counsel's competence is that testimony regarding his involvement in another crime was elicited. This occurred when counsel cross-examined Schmidt concerning the circumstances under which she observed defendant. Given the very strong identification testimony concerning defendant's wearing a full beard at a time he claimed to be clean-shaven, counsel was forced to attack the reliability of the identification. This he did by showing Schmidt's observation was made in an emotionally volatile situation, and that the Wisconsin robber utilized an entirely different modus operandi. Even if we might not have employed this tactic, errors in strategy and of judgment on the part of counsel do not render a representation incompetent. People v. Torres (1973), 54 Ill.2d 384, 297 N.E.2d 142. • 7 The fifth contention was that counsel suggested in closing argument that defendant had to prove his innocence. During the course of a long hypothetical in which counsel asked the jurors to put themselves in the position of a person falsely accused of a crime, he rhetorically asked, "How are you going to prove your innocence?" In isolation, this might well constitute prejudicial incompetence; however, counsel repeatedly told the jury, during the conclusion of his closing argument, that the State had the burden of proving defendant guilty beyond a reasonable doubt. The jury was then properly instructed by the court. We do not find, under these circumstances, that the question prejudiced defendant to any significant extent. • 8 The final contention regarding incompetence of counsel is that there was a failure to raise in a timely fashion and properly preserve several issues. Without detailing the many arguments in support of this contention, *704 we find it without merit. Considering defendant's six contentions and the totality of counsel's conduct at trial (People v. Murphy (1978), 72 Ill.2d 421, 381 N.E.2d 677), we do not find trial counsel was incompetent to the extent that defendant was so prejudiced that the outcome of the trial was affected. We therefore conclude he received the effective assistance of counsel. The second issue presented for our review is whether defendant is entitled to a new trial because the State's knowledge of his alleged confidences and the defense evidence and strategy undermined the integrity of the adversarial system and denied defendant his right to the assistance of counsel. For the reasons stated in our discussion of the first of the previous six contentions, we do not find that defendant is entitled to a new trial because of the discovery disclosures. The third issue is whether defendant was denied a fair trial and due process of law when the trial court denied his motions in limine to exclude evidence of other crimes and subsequently permitted the State to introduce such evidence under the modus operandi exception to the general rule barring its use. Defendant contends that the evidence of other offenses does not meet the requirement of being substantially similar and having common features with the offense charged. People v. Romero (1975), 31 Ill. App.3d 704, 334 N.E.2d 305, aff'd (1977), 66 Ill.2d 325, 362 N.E.2d 288. • 9 All three offenses were armed robberies of fast-food franchise restaurants, and two of these restaurants were Long John Silver's. The descriptions given by the victims of the other crimes, including the presence of a beard, matched the description of defendant in this case. Each offense occurred at closing time and was perpetrated with a gun, two of which were specifically described as dark colored. In each case, the employees were told to lie on the floor, and the manager or assistant manager was told to place cash in a bag. The employees were always ordered into a cooler, and the telephone wires were always ripped off. In both Long John Silver's robberies, the robber came directly into the office. In the other crime, the manager had initially approached the perpetrator to tell him the restaurant was closing, so no such opportunity presented itself. Under these circumstances, we find the trial court appropriately denied the motions in limine and admitted this evidence with a proper limiting instruction. • 10 The fourth issue is whether defendant was denied the right to a fair trial where the State, in closing argument, commented on the failure of the defense witnesses to notify the police of their exculpatory evidence. This comment was made in response to defendant's earlier mentioned hypothetical. Where comments of the State are provoked by defense counsel's statements in closing argument, a defendant cannot claim that *705 such statements were prejudicial. (People v. Miller (1981), 94 Ill. App.3d 725, 419 N.E.2d 78; People v. Braxton (1980), 81 Ill. App.3d 808, 401 N.E.2d 1062, appeal denied (1980), 81 Ill.2d 584; People v. Matthews (1979), 69 Ill. App.3d 65, 387 N.E.2d 10.) Furthermore, a prosecutor may argue the inconsistency between the testimony and the conduct of an alibi witness who had the opportunity to make a statement to a police agency on behalf of a defendant, but did not. (People v. Kester (1979), 78 Ill. App.3d 902, 397 N.E.2d 888, appeal denied (1980), 79 Ill.2d 633.) We therefore find no denial of a fair trial by the State's comment. • 11 The fifth issue presented for our review is whether defendant's sentence should be vacated and this cause remanded because the trial court, in imposing sentence, considered three prior convictions which were reversed and remanded. An accused is entitled to a reconsideration of his sentence where the court, in imposing the sentence, considered a prior conviction which was later reversed. (People v. Henderson (1981), 95 Ill. App.3d 291, 419 N.E.2d 1262; People v. Beyah (1979), 72 Ill. App.3d 690, 391 N.E.2d 96; People v. Buckley (1977), 44 Ill. App.3d 1038, 358 N.E.2d 1327.) We therefore vacate the sentence and remand this cause to the trial court for a new sentencing hearing, with the court ordered to impose the new sentence, if any, retroactive to the prior imposition of sentence. Cf. People ex rel. Willis v. Brantley (1972), 6 Ill. App.3d 645, 285 N.E.2d 571 (State dismissed cause for lack of evidence). • 12 The final issue presented for our review is whether the trial court abused its discretion in considering, as a statutory factor in aggravation, that defendant's conduct threatened serious harm. Defendant contends this was improper as the factor is implicit in the offense of armed robbery. This contention has previously been rejected in People v. Robinson (1980), 89 Ill. App.3d 211, 411 N.E.2d 589, which we cite with approval. Accordingly, the judgment of the circuit court of Peoria County is affirmed as to defendant's conviction, vacated as to his sentence, and remanded for resentencing consistent with our views herein. Affirmed in part, vacated and remanded in part. SCOTT, P.J., and BARRY, J., concur.

983 So.2d 591 (2008) WRIGHT v. STATE. No. 3D06-2461. District Court of Appeal of Florida, Third District. May 14, 2008. Decision without published opinion. Affirmed.

162 F.3d 97 U.S.v.Machado*** NO. 96-5132 United States Court of Appeals,Eleventh Circuit. October 20, 1998 Appeal From: S.D.Fla. , No.95-00292-CR-SH 1 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case

481 F.3d 302 In the Matter of: Don Royl PLUNK, Debtor.Don Royl Plunk, Appellant,v.Robert Yaquinto, Jr. and Comerica Bank, Appellees. No. 06-10426. United States Court of Appeals, Fifth Circuit. March 12, 2007. T. Rick Frazier, Dallas, TX, for Appellant. Aubyn Keith Shettle, Jr., Dallas, TX, for Appellees. Appeal from the United States District Court for the Northern District of Texas. Before DAVIS, DENNIS and PRADO, Circuit Judges. PRADO, Circuit Judge: 1 Before us is an appeal by a debtor of the bankruptcy court's decision that his pension plan is not exempt under Texas law from being "property of the estate" because it was not "qualified" pursuant to 26 U.S.C. § 401(a) (2000). The debtor also appeals the bankruptcy court's decision that collateral estoppel prevented him from challenging whether a creditor owned a judgment against him. For the following reasons, we AFFIRM. I. BACKGROUND 2 On October 12, 2004, Debtor-Appellant Don Royl Plunk ("Plunk") filed for Chapter 7 bankruptcy. Plunk listed the Don R. Plunk P.S. Plan ("the Plan"), a self-administered pension plan worth $300,000, as personal property on Schedule B. Plunk then claimed the Plan as exempt property on Schedule C pursuant to section 42.0021 of the Texas Property Code. Section 42.0021 exempts a pension plan from attachment, execution, or other seizure if the plan is "qualified" under the Internal Revenue Code ("I.R.C."). TEX. PROP.CODE ANN. § 42.0021(a) (Vernon 2000 & Supp.2006); see also 11 U.S.C. § 522(b) (incorporating state law exemptions into bankruptcy proceedings). 3 In early December 2004, Appellees Robert Yaquinto, Jr. ("the Trustee") and Comerica Bank ("Comerica") (collectively, "Appellees") filed objections to Plunk's claim that the Plan was exempt. Appellees argued that Plunk had abused Plan assets and, thus, the Plan was no longer qualified under I.R.C. § 401(a), 26 U.S.C. § 401(a), and could not be exempted in the bankruptcy proceeding. 4 Later that month, Comerica filed a motion to lift the automatic bankruptcy stay to permit Comerica to proceed in a garnishment case in the 193rd Judicial District Court of Dallas County, Texas, styled Comerica Bank-Texas, N.A. v. Neighborhood Credit Union and Don R. Plunk, No. 02-10675-1 ("the state garnishment action"). Comerica claimed to own, as the successor to a series of mergers, a judgment of over $750,000 ("the judgment") against Plunk that was originally awarded to BancTexas Dallas, N.A. ("BancTexas") in 1989. In the state garnishment action, Comerica was attempting to garnish a bank account held by the Plan in order to collect on the judgment. As in the bankruptcy case, Comerica argued that the Plan was not qualified under I.R.C. § 401(a) and, thus, was not exempt from garnishment. At the time Plunk declared bankruptcy, which stayed the garnishment action, the state court had already held a number of hearings and was on the verge of trial. Comerica, therefore, asked that the stay be lifted so that the state court could make a final determination about the qualified status of the Plan. 5 The bankruptcy court held a hearing on these issues over a period of days between February 2005, and April 2005. At the hearing, Plunk put on evidence that the Internal Revenue Service ("IRS") had determined that the Plan was structurally qualified under § 401(a) when the Plan was created. In response, Appellees did not argue that the Plan was not qualified structurally, but contended instead that Plunk had misused Plan assets to the extent that the Plan was no longer qualified operationally. 6 With respect to the motion to lift the stay, Comerica offered evidence that the judgment owned by BancTexas was transferred to Hibernia National Bank of Texas ("Hibernia") by the Federal Deposit Insurance Corporation as the receiver for BancTexas in 1990. Subsequently, Hibernia merged into Comerica. Plunk disputed that Comerica owned the judgment and argued there was an insufficient chain of title between Hibernia and BancTexas. Comerica then put on evidence that in 1992, Hibernia relied on the judgment to bring a garnishment action against some of Plunk's assets ("the 1992 garnishment action"). Plunk responded to the 1992 garnishment action, but did not contest Hibernia's ownership of the judgment. Therefore, Comerica argued that the principles of res judicata and collateral estoppel prevented Plunk from contesting Hibernia's ownership of the judgment in the current proceedings. 7 On April 15, 2005, the bankruptcy court entered an order sustaining Appellees' objections to Plunk's claim that the Plan was exempt. The bankruptcy court determined that Plunk had used Plan assets to pay personal bills and that the Plan was no longer qualified. The bankruptcy court also lifted the stay on May 10, 2005, to permit the state court garnishment action to proceed. In making its decision to lift the stay, the bankruptcy court ruled that collateral estoppel and res judicata precluded Plunk from arguing that Hibernia, and thus Comerica, did not own the judgment at issue. 8 Plunk appealed both rulings to the district court. The district court affirmed the bankruptcy court's decisions, and Plunk now appeals to this court. On appeal, Plunk contends that this court's precedent in Youngblood v. Federal Deposit Insurance Corp. (In re Youngblood), 29 F.3d 225 (5th Cir.1994), prevents the bankruptcy court from making an independent determination of whether the Plan was qualified and that res judicata and collateral estoppel do not bar his claim that Comerica does not own the judgment. We have jurisdiction to consider Plunk's appeal pursuant to 28 U.S.C. § 158(d), and now turn to the merits of the parties' arguments. II. STANDARD OF REVIEW 9 This court applies the same standard of review to the decisions of a bankruptcy court as does the district court. Nesco Acceptance Corp. v. Jay (In re Jay), 432 F.3d 323, 325 (5th Cir.2005). Findings of fact are reviewed for clear error, while conclusions of law are considered de novo. Id.; see also FED. R. BANKR.P. 8013. We may affirm on any grounds supported by the record, even if those grounds were not relied upon by the lower courts. Bonneville Power Admin. v. Mirant Corp. (In re Mirant Corp.), 440 F.3d 238, 245 (5th Cir. 2006). III. DISCUSSION A. Whether the Plan is Qualified 10 We will first consider Plunk's appeal regarding the decision that the Plan was not qualified. Plunk does not argue that the bankruptcy court erroneously found that he had abused the Plan's assets and that such abuse warranted disqualification. Instead, Plunk argues that the bankruptcy court was required by this court's precedent in Youngblood to defer to the initial IRS determination that the Plan was qualified. Consequently, resolution of this case requires an analysis of our decision in Youngblood. 11 In Youngblood, Youngblood Builders, Inc., created a defined-benefit pension trust for its employees. 29 F.3d at 226. The IRS issued favorable determination letters that the plan was "qualified" under § 401(a) in 1978 and 1987. Id. In December 1987, the plan was terminated and William Youngblood, a beneficiary of the plan, had his distribution rolled over into an IRA. Id. Around that same time, the IRS audited the plan. Id. at 227. The IRS assessed sanctions against the plan for two improper loans and questioned several other transactions. Id. The IRS, however, did not revoke the plan's qualified status. Id. When Youngblood went bankrupt in 1989, he claimed his IRA as exempt property under section 42.0021 of the Texas Property Code. Id. One of his creditors objected, arguing that because the plan was not qualified, Youngblood's IRA was not exempt. Id. The bankruptcy court agreed and ruled that the plan was not qualified. Id. 12 On appeal, Youngblood1 argued that the bankruptcy court was precluded from finding that the plan was not qualified because the IRS had already concluded otherwise. Id. This court held that the key issue in deciding the case was whether the Texas legislature, in enacting section 42.0021, "contemplated that its courts would independently decide whether particular violations were sufficiently serious to merit the ultimate sanction of disqualification especially when the IRS has made a contrary determination." Id. at 229. We decided the Texas legislature intended that courts defer to the IRS in determining whether a plan is qualified. Id. In so holding, we stated: 13 We see no reason that the legislature would want its courts, which are inexperienced in federal tax matters, to second-guess the IRS in such a complex, specialized area. We find it much more reasonable to assume that the legislature contemplated creating an exemption from seizure for a debtor's retirement funds that could be simply and readily determined by referring to the federal tax treatment of those funds. Moreover, we do not believe that the legislature wanted to adopt a scheme that invites frequent, unseemly, conflicting decisions between the state court or bankruptcy court, and the IRS, such as occurred in this case. 14 Id. 15 This case, then, hinges on this court's decision in Youngblood — whether it stands for the proposition that a bankruptcy court can never question an IRS determination that a plan is qualified, as contended by Plunk, or whether it permits a bankruptcy court, in limited circumstances, to undertake its own analysis of a plan's qualified status, as urged by Appellees. We have found no other circuit court case considering this question, nor has any Texas court addressed this issue. But see Jones v. Am. Airlines, Inc., 131 S.W.3d 261, 270 (Tex.App.-Fort Worth 2004, no pet.) (determining that Youngblood did not apply to the situation in that case). 16 Appellees argue that the instant appeal is distinguishable from Youngblood because the IRS in Youngblood had considered the misconduct at issue and decided not to disqualify the plan. Here, the IRS has not audited the Plan or ruled whether Plunk's abuse of Plan assets warrants disqualification. We agree that this distinction is significant. 17 As a review of the Youngblood decision shows, our two primary concerns in requiring deference to the IRS were (1) the conflicting results that might be reached if the courts and the IRS made separate, independent determinations of a plan's qualified status; and (2) the IRS's greater experience and familiarity with the I.R.C. and related regulations. See Youngblood, 29 F.3d at 229. Our desire to avoid conflicting results is not implicated when, as here, the IRS has never ruled whether certain conduct requires a plan to be disqualified. Instead, the courts will be able to make that determination based on the evidence presented to them, without fear of inconsistency with a previous IRS decision. 18 Our remaining concern that the IRS is more familiar with the tax code and regulations is not sufficient to require deference to an out-dated IRS decision. Both state and federal courts routinely interpret IRS rules and regulations. See, e.g., Coppola v. Beeson (In re Coppola), 419 F.3d 323, 327-29 (5th Cir.2005) (interpreting provisions of the I.R.C. and various regulations); Beard v. Beard, 49 S.W.3d 40, 69-70 (Tex.App.-Waco 2001, pet. denied) (same). 19 We, therefore, hold that when disqualifying events occur after the IRS has last determined that a plan is qualified, a court may, under section 42.0021 of the Texas Property Code, determine that a plan is no longer qualified based on those events. See Dzikowski v. Blais (In re Blais), 220 B.R. 485, 489 (S.D.Fla.1997) (considering Youngblood and reaching a similar result under Florida law). 20 Turning to the facts of this case, it had been years since the IRS determined the Plan was qualified, and then only as to its structure. The IRS never considered Plunk's abuse of Plan assets or audited the Plan to determine whether it was operationally qualified despite Plunk's actions. Therefore, the bankruptcy court and district court were permitted to reach an independent decision regarding the Plan's qualified status and were not bound by the previous IRS determination under Youngblood. As a result, we affirm the district court's decision on this point.2 21 B. Whether Res Judicata or Collateral Estoppel Preclude Plunk's Ownership Argument 22 We next consider whether the bankruptcy and district courts properly determined that res judicata and collateral estoppel precluded Plunk from challenging Hibernia's, and thus Comerica's, ownership of the judgment against him. Because we may affirm the lower courts on any ground supported by the record, In re Mirant, 440 F.3d at 245, we first turn to collateral estoppel. 23 Texas rules of preclusion apply, as we are dealing with the effect of a state court judgment. See Fielder v. King (In re King), 103 F.3d 17, 19 n. 2 (5th Cir. 1997). Under Texas law, collateral estoppel is used to prevent a party from relitigating an issue that it previously litigated and lost. Quinney Elec., Inc. v. Kondos Entm't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per curiam). The party invoking collateral estoppel must establish "(1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action." John G. & Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex.2002). Here, by seeking to use the judgment in the 1992 garnishment action to prevent Plunk from arguing that Comerica does not own the judgment in the instant case, Comerica is seeking to invoke collateral estoppel in an offensive, as opposed to defensive, manner. See Fletcher v. Nat'l Bank of Commerce, 825 S.W.2d 176, 177 (Tex.App.-Amarillo 1992, no writ) (discussing difference between offensive and defensive collateral estoppel). 24 On appeal, Plunk's only contention is that the fact of Hibernia's ownership of the judgment was not fully and fairly litigated in the 1992 garnishment action. He cites to precedent identifying the following factors that a court is to take into account in deciding whether to apply offensive collateral estoppel: 25 (1) Whether use of collateral estoppel will reward a plaintiff who could have joined in the previous action but chose to "wait and see" in the hope that the first action by another plaintiff would result in a favorable judgment; 26 (2) Whether the defendant in the first action had the incentive to litigate the previous suit fully and vigorously; 27 (3) Whether the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result; and 28 (4) Whether the judgment in the first action is inconsistent with any previous decision. 29 Scurlock Oil Co. v. Smithwick, 787 S.W.2d 560, 563 (Tex.App.-Corpus Christi 1990, no writ); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330-31, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (listing similar factors). Texas courts are given discretion in applying these factors. See Scurlock, 787 S.W.2d at 563. Plunk's arguments fall primarily under the second factor, and the remaining three factors do not weigh in his favor. 30 Plunk argues that he had little incentive to contest the 1992 garnishment action because it only concerned a nominal amount of money. He also contends that there was no express finding that Hibernia owned the judgment. We have reviewed the evidence of the 1992 garnishment action submitted to the bankruptcy court. The amount at issue was not large, but Plunk did file an answer through counsel and contested whether some of the money belonged to him or his wife. This level of participation suggests that Plunk did not consider the amount nominal enough to refrain from participating in the suit altogether. 31 With respect to Plunk's argument that there was no express finding that Hibernia owned the judgment, we note that, under Texas garnishment law, the plaintiff must own a judgment against the defendant in order to obtain a writ of garnishment. See TEX. CIV. PRAC. & REM. CODE ANN. § 63.001. Further, agreed judgments in Texas have the same degree of finality and binding force as judgments reached at the end of adversary proceedings. Forbis v. Trinity Universal Ins. Co. of Kan., Inc., 833 S.W.2d 316, 319 (Tex. App.-Fort Worth 1992, writ dism'd) (finding an agreed judgment binding for collateral estoppel purposes). Therefore, the agreed judgment entered in the 1992 garnishment action necessarily required that Hibernia own the judgment at issue. 32 Consequently, the lower courts were correct in determining that the 1992 garnishment action may be used to collaterally estop Plunk from contesting Hibernia's ownership of the judgment. As a result, we affirm the decision to lift the stay to permit the state garnishment action proceed. IV. CONCLUSION 33 For the reasons above, we affirm the decisions of the lower courts. 34 AFFIRMED. Notes: 1 During the pendency of the litigation, William Youngblood died, but the suit was carried on by his wife 2 Because we have decided that the lower courts were not bound by the IRS's previous statement, we do not reach Appellees' argument that Plunk's inability to participate in the IRS's Voluntary Compliance Program renders the Plan unqualified

798 F.2d 473 U.S.v.Petersen 85-2395 United States Court of Appeals,Ninth Circuit. 8/14/86 1 C.D.Cal. AFFIRMED

People v Burns (2020 NY Slip Op 02933) People v Burns 2020 NY Slip Op 02933 Decided on May 20, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 20, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. CHERYL E. CHAMBERS JEFFREY A. COHEN COLLEEN D. DUFFY, JJ. 2017-07955 (Ind. No. 896/16) [*1]The People of the State of New York, respondent, vDeborah Burns, appellant. Paul Skip Laisure, New York, NY (Anjali Biala of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael Aloise, J.), rendered June 15, 2017, convicting her of manslaughter in the second degree (three counts) and assault in the second degree (two counts), upon a jury verdict, and sentencing her to concurrent, indeterminate terms of imprisonment of 5 to 15 years on each manslaughter conviction, to run consecutively to concurrent, determinate terms of imprisonment of 7 years on each assault conviction, to be followed by a period of 3 years of post-release supervision on the assault convictions. ORDERED that the judgment is modified, on the law, by providing that all of the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed. The defendant's contention that her convictions are not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 492; People v Pearsall, 171 AD3d 1096, 1096). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Kanios, 53 AD3d 555, 555; People v Wolz, 300 AD2d 606, 606). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 645-646). The defendant waived any objection to the admission into evidence of a family photograph of the deceased victims and the report generated from data extracted from the "black box" of her vehicle by consenting to their admission at trial (see People v Williams, 168 AD3d 770, 770; People v Katehis, 117 AD3d 1080, 1081). The defendant's contention that she received ineffective assistance of counsel is without merit as the record shows that defense counsel provided the defendant with meaningful representation (see People v Orlando, 61 AD3d 1001, 1002; see also People v Katehis, 117 AD3d at 1081). The defendant's contention that the prosecutor committed misconduct by questioning the witnesses about the background of the victims' family is unpreserved for appellate review because the defendant did not object to these remarks or questions (see People v Davis, 132 AD3d 891, 892). In any event, the testimony complained of did not deprive the defendant of a fair trial (see People v Cherry, 163 AD3d 706, 707). The defendant's contention that she was deprived of her right to a fair trial due to improper remarks made by the prosecutor during his summation is unpreserved for appellate review, as the defense counsel did not object to some of the challenged remarks and made only general objections to the others (see CPL 470.05[2]; People v Mais, 133 AD3d 687, 688-689). In any event, the majority of the prosecutor's comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, or fair response to the arguments made by defense counsel in summation (see People v JeanCharles, 173 AD3d 902, 902; see also People v Gurdon, 153 AD3d 1430, 1431). Although the prosecutor's comments about the effect the deceased victims' deaths had on their family were improper, as the comments were designed to evoke the jury's sympathy, any prejudice was alleviated by the Supreme Court's instruction, during its final charge, that the jury may not consider sympathy (see People v Esguerra, 178 AD3d 722, 725; People v Melendez, 11 AD3d 983, 983), and did not deprive the defendant of a fair trial (see People v Cherry, 163 AD3d at 707). However, as the People concede, the Supreme Court should have imposed concurrent sentences on the convictions of assault in the second degree and the convictions of manslaughter in the second degree (see People v Laureano, 87 NY2d 640, 645). The offenses of manslaughter in the second degree and assault in the second degree arose out of the same operative facts—the defendant's act of recklessly driving her car into the other vehicle. Accordingly, we modify the judgment to make the sentences concurrent to each other (see Penal Law § 70.25[2]; People v Brahney, 29 NY3d 10, 14; People v Michel, 144 AD3d 948, 949). DILLON, J.P., CHAMBERS, COHEN and DUFFY, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court

972 So.2d 180 (2008) BALDWIN v. STATE No. 2D07-2448. District Court of Appeal of Florida, Second District. January 4, 2008. Decision without published opinion. Affirmed.

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD GEORGE EDWARD PAGE, DOCKET NUMBER Appellant, DC-1221-15-0408-W-1 v. DEPARTMENT OF HEALTH AND DATE: September 28, 2015 HUMAN SERVICES, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 George Edward Page, Berlin, Maryland, pro se. Christina Patton Black, Esquire, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his challenge of the agency’s denial of a differential pay increase for lack of jurisdiction as an otherwise appealable action or as an individual right of action (IRA) appeal. Generally, we grant petitions such as this one only when: 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).  2 the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and based on the following points and authorities, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). BACKGROUND ¶2 The appellant is a Maintenance Mechanic with the agency’s National Institute of Health. Initial Appeal File (IAF), Tab 1 at 2. On February 5, 2015, he filed an IRA appeal, which challenged the agency’s denial of his request for an environmental differential pay increase due to his potential exposure to microorganisms. See id. at 6; IAF, Tab 2. The appellant also alleged that the agency’s actions were taken in reprisal for his protected whistleblowing activity and stated that he had filed a complaint with the Office of Special Counsel (OSC) on February 4, 2015. IAF, Tab 1 at 5. ¶3 The administrative judge issued an order informing the appellant that, to establish Board jurisdiction over an IRA appeal, he had to demonstrate, among other things, that he had exhausted his whistleblowing claims before OSC and either that OSC had notified him that it was terminating its investigation of his allegations or 120 calendar days had passed since he first sought corrective  3 action. IAF, Tab 3 at 3. She ordered the appellant to file evidence and argument within 15 days to establish Board jurisdiction over his appeal. Id. She also instructed the appellant to file a copy of the letter he filed with OSC delineating his whistleblowing allegations. Id. at 2. The agency also filed a motion to dismiss the appeal, arguing that the appellant did not establish that he exhausted his administrative remedies with OSC. IAF, Tab 7. The appellant did not respond to either the administrative judge’s order or the agency’s motion to dismiss. ¶4 Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 1 at 3, Tab 8, Initial Decision (ID). The administrative judge found that the Board lacks jurisdiction over an alleged denial of a differential pay increase as an otherwise appealable action. ID at 3. She also found that, to the extent the appellant was attempting to file an IRA appeal, he failed to exhaust his administrative remedies because 120 days had not passed since he stated that he filed his complaint with OSC. Id. ¶5 The appellant has filed a petition for review. 2 Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the appellant’s petition. 3 PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW ¶6 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The administrative judge properly found that the Board does not have jurisdiction over the appellant’s 2 On March 14, 2015, the appellant electronically filed an initial appeal with the Board’s Washington Regional Office, which the Board construed as a petition for review of the initial decision in this case. PFR File, Tabs 1-2. 3 The agency’s response was due on April 11, 2015. PFR File, Tab 2. Because April 11, 2015, fell on a Saturday, the agency’s response that was filed on Monday, April 13, 2015, is timely. See 5 C.F.R. § 1201.23.  4 alleged denial of a differential pay increase as an otherwise appealable action. 4 ID at 3 (citing 5 C.F.R. § 1201.3); see Fair v. Department of Transportation, 4 M.S.P.R. 493, 495-96 (1981) (finding that the loss of premium pay such as a shift differential is not an appealable adverse action). ¶7 To the extent the appellant is attempting to file an IRA appeal, under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his administrative remedies with OSC before seeking corrective action from the Board in such an appeal. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not exhausted his OSC remedy unless he has filed a complaint with OSC and either OSC has notified him that it was terminating its investigation of his allegations or 120 calendar days have passed since he first sought corrective action. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8 (2010). To establish Board jurisdiction, the appellant must prove exhaustion with OSC, not just present nonfrivolous allegations of exhaustion. Mason, 116 M.S.P.R. 135, ¶ 9. He may meet this burden by providing his OSC complaint, any amendments to the complaint, OSC’s correspondence discussing the claims, and his responses to OSC’s correspondence discussing the claims. See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 (2010). ¶8 It is undisputed that, as of the date the initial decision was issued, 120 days had not elapsed since the appellant stated that he filed his OSC complaint, and he had not alleged that he had been notified that OSC had terminated its investigation into his allegations. IAF, Tab 1 at 5. Thus, the administrative judge properly found that the Board lacked jurisdiction over the appellant’s potential IRA appeal. ID at 3. The appellant has not addressed the issue of exhaustion 4 In the absence of an otherwise appealable action, the Board lacks jurisdiction to hear the appellant’s claim that the agency’s actions breached the terms of a collective bargaining agreement. IAF, Tab 1 at 6; see Smith v. Department of Defense, 106 M.S.P.R. 228, ¶ 13 (2007).  5 either below or on review. Under these circumstances, we find that the appellant has failed to prove that he exhausted his administrative remedies with OSC and, thus, the Board lacks jurisdiction over his IRA appeal. NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the United States Court of Appeals for the Federal Circuit. The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). If you want to request review of the Board’s decision concerning your claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s disposition of any other claims of prohibited personnel practices, you may request review of this final decision by the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60 days after the date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. You may choose to request review of the Board’s decision in the United States Court of Appeals for the Federal Circuit or any other court of appeals of competent jurisdiction, but not both. Once you choose to seek review in one court of appeals, you may be precluded from seeking review in any other court. If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.  6 Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional information about the United States Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about other courts of appeals can be found at their respective websites, which can be accessed through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. If you are interested in securing pro bono representation for an appeal to the United States Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. FOR THE BOARD: ______________________________ William D. Spencer Clerk of the Board Washington, D.C. 

2 So.3d 943 (2006) RICHARD DAVID KINDER v. STATE. No. CR-05-2376. Court of Criminal Appeals of Alabama. December 1, 2006. Decision of the Alabama Court of Criminal Appeal without opinion. Affirmed.

161 F.3d 728 333 U.S.App.D.C. 178 UNITED STATES of America, Appellee,v.John M. RICHARDSON, Appellant. No. 97-3152. United States Court of Appeals, District of Columbia Circuit.Argued Sept. 28, 1998.Decided Oct. 27, 1998. Douglas Wham, appointed by the Court, argued the cause and filed the briefs for appellant. Michael Fitzpatrick, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, United States Attorney, John R. Fisher, Elizabeth Trosman, Diana Harris Epps and Brenda B. White, Assistant United States Attorneys. Before: EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge: 1 A jury convicted John M. Richardson of the unlawful possession of a firearm by a convicted felon, the unlawful possession of ammunition by a convicted felon, and of threatening to injure another person. On appeal, appellant challenges his convictions and sentence on a number of grounds, including (1) insufficient evidence for the jury to convict him of constructive possession of a loaded firearm; (2) improper joinder of the local District of Columbia threats charge with the federal firearm and ammunition counts; (3) an improper appeal to the racial sensitivities of the jury in the government's closing argument; and (4) error by the district court in designating a prior conviction of appellant as a crime of violence for purposes of determining the guidelines base offense level.1 2 Although this is a close case, we find that there was sufficient evidence for the jury to convict appellant of constructive possession of a loaded firearm. However, we agree with appellant that the district court erred in failing to dismiss the local threats charge for lack of jurisdiction and that certain remarks made by the prosecutor constituted improper appeals to the racial sensitivities of the jury. Given the closeness of the case, we find these errors to be substantial and prejudicial, necessitating the reversal of appellant's convictions on both the weapons and the threats counts.2 Finally, although our reversal of the convictions renders the sentencing issue moot, we think it prudent to register our observation that designating a prior conviction of appellant as a crime of violence for purposes of determining the guidelines base offense level was mistaken because the court did not have before it the necessary information to determine whether that conviction constituted a crime of violence as defined by the guidelines. I. BACKGROUND 3 On January 16, 1997, the government charged appellant in a three-count indictment with (1) unlawful possession of a firearm by a convicted felon, (2) unlawful possession of ammunition by a convicted felon, both in violation of 18 U.S.C. § 922(g)(1), and (3) threats to injure another person, in violation of D.C.Code § 22-2307. All three offenses allegedly occurred on the night of December 18, 1996. The firearm and ammunition possession counts both arose from appellant's alleged possession of a loaded gun, specifically described in the indictment as a Glock 9mm semi-automatic pistol. The threats charge, a District of Columbia offense for which the maximum punishment is twenty years, was based on remarks appellant made to a police officer after he had been arrested for possession of a loaded gun and transported to the police station.3 Appellant filed several pretrial motions, including a motion for dismissal of the local threats charge, arguing that the district court lacked jurisdiction over the charge because it had been improperly joined with the weapons counts under Federal Rule of Criminal Procedure 8(a). The district court heard oral argument on the joinder issue on two different occasions but ultimately rejected appellant's motion. 4 A jury trial began on April 8, 1997. At the end of the government's case, appellant moved for a judgment of acquittal as to all three counts. The district court denied this motion. After the defense presented its evidence, appellant renewed his motion for a judgment of acquittal. The court took this motion under advisement. Later that same day, the jury returned verdicts of guilty as to all three counts. With respect to the firearm and ammunition counts, the jury found appellant guilty on a theory of constructive possession rather than actual possession. Appellant filed a written post-trial motion for judgment of acquittal, which the district court also denied. 5 A sentencing hearing was held on November 17, 1997. The Presentence Investigation Report ("PSR") calculated appellant's offense level at 20 based on a determination that appellant had been convicted of a prior crime of violence, a 1982 Virginia conviction for statutory burglary.4 The sentencing guidelines define a "crime of violence" as, inter alia, the "burglary of a dwelling." U.S.S.G. § 4B1.2(a)(2). However, the Virginia statute to which appellant apparently pled guilty covers burglaries of non-dwelling structures as well. Appellant thus argued at sentencing that the court could not increase his offense level for having been convicted of a prior crime of violence without having before it a charging document, plea agreement or the like which would reliably indicate that appellant had in fact pled guilty to the burglary of a dwelling and not of some other structure. The government argued that the court could rely on a description of the crime listed in the PSR provided by the United States Probation Office for the Western District of Virginia which indicated that the burglary was of a dwelling, noting the names of its owners and what was stolen from it. After hearing substantial argument on the issue, the district court ruled that the 1982 Virginia conviction did qualify as a "crime of violence" both because it was a burglary of a dwelling and because it involved conduct that presented a serious potential risk of physical injury to another.5 6 The district court accordingly determined that appellant was properly assigned an offense level of 20 which, coupled with a criminal history category of V, produced a sentencing range for the gun and ammunition counts of 63-78 months. The court sentenced appellant to a term of 78 months of imprisonment for each of these counts, to run concurrently, and imposed a consecutive sentence of 4-12 years for count three, the D.C. threats charge. II. DISCUSSION A. Sufficiency of Evidence 7 Appellant first argues that the evidence was insufficient to support his convictions on the weapons counts. In assessing this claim, we must view the evidence in the light most favorable to the government, drawing all reasonable inferences in the government's favor. See, e.g., United States v. Dingle, 114 F.3d 307, 310 (D.C.Cir.1997). Moreover, our inquiry is "limited to the question of whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Appellant was convicted of constructive possession of a loaded firearm. Constructive possession requires "evidence supporting the conclusion that the defendant had the ability to exercise knowing 'dominion and control' over the items in question." United States v. Morris, 977 F.2d 617, 619 (D.C.Cir.1992) (quoting United States v. Hernandez, 780 F.2d 113, 116 (D.C.Cir.1986)). Generally, neither "mere proximity" to nor "mere knowledge of the presence" of contraband alone is enough to prove constructive possession, see Morris, 977 F.2d at 619-20; Hernandez, 780 F.2d at 116; however, "proximity coupled with 'evidence of some other factor--including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise' is enough to sustain a guilty verdict." Morris, 977 F.2d at 620 (quoting United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990)). 8 The government's evidence against appellant on constructive possession of a loaded gun consisted primarily of the testimony of Lamar Hazelton. Hazelton testified that on December 18, 1996, at 10:00 p.m., he was standing with some friends in front of a carry-out in D.C. when he was approached by a man who asked in a threatening tone if Hazelton had seen "Roger," a friend of Hazelton. Hazelton replied that he had not. The man then circled Hazelton and his friends several times before walking away. About five to ten minutes later, the man again approached Hazelton and demanded to know Roger's whereabouts. When Hazelton replied that he had no idea where Roger was, the man became agitated and told Hazelton to tell Roger that he was going to "burn" him. The man then opened his coat to show Hazelton the handle of a gun protruding from an inside pocket. After this second encounter, Hazelton left the area. As he was leaving, Hazelton observed the man approach the driver's side of a car, lean into the front driver's side window, and appear to talk to the driver. 9 Hazelton returned to the same area about five minutes later where he encountered Metropolitan Police Officer Eldrick Creamer, who was patrolling the area. Hazelton told Creamer about his two encounters with the man and provided Creamer with a description of the suspect--black man, wearing black clothes, with a bald head.6 Upon receiving this information, Creamer moved through an alley to another street, where he observed a man talking on a cellular phone who fit the description given to him by Hazelton. That man was appellant. Creamer detained appellant with the help of fellow officer, Paul Regan. During appellant's detention, Hazelton, who had followed Creamer onto the second street, walked past appellant and gave Creamer an affirmative nod to indicate that he had the right man. Appellant was searched but no gun was found on him. 10 When Creamer apprehended him, appellant was standing about 10-15 feet away from a car which Hazelton identified as the one he had seen the suspect leaning into earlier that night. This car was occupied by three men, one in the driver's seat and two in back; the front passenger seat was empty. All three men were black, all three were wearing black clothes, and all three were roughly the same height, weight and complexion as appellant.7 A search of the vehicle and its occupants uncovered two guns, one on the person of the driver and the other--a loaded black 9mm Glock semiautomatic pistol--on the floor under the front passenger seat. Appellant and the car's occupants were all arrested and taken to the police station. 11 At trial, Hazelton identified appellant in court as the man who had twice asked him about Roger and who had shown him the handle of a gun protruding from his coat pocket. No usable prints were lifted from the Glock, but Hazelton testified that its handle was similar in appearance to the handle of the gun he had seen on the man looking for Roger. Hazelton admitted, however, that he could not state with absolute certainty that it was the same pistol he had seen the evening of the incident.8 Hazelton also identified at trial a picture of the car from which the Glock was recovered as the same kind of car he had seen the suspect leaning over that night, but admitted that he was not sure if it was in fact the same car.9 12 Viewing Hazelton's testimony in the light most favorable to the government and giving the government the benefit of all reasonable inferences therefrom, we conclude that a reasonable trier of fact could find the requisite connection between appellant and the gun required for a conviction based on constructive possession. Hazelton's testimony offered evidence that appellant had at one time possessed a gun like the Glock, that he had a motive to possess a gun (i.e., to "burn" Roger), and that he had been observed leaning over the car in which the Glock was found. The jury was free to credit this testimony and could reasonably infer from it that appellant had constructively possessed a gun. 13 Again, we emphasize that this was not a strong case of constructive possession; however, our role in assessing the sufficiency of the evidence "is sharply circumscribed." United States v. Poston, 902 F.2d 90, 94 (D.C.Cir.1990). "We are not a second jury weighing the evidence anew and deciding whether or not we would vote to convict the defendant." Id. Accordingly, we find that the evidence was legally sufficient to establish that appellant constructively possessed the firearm in question. 14 B. Joinder of Local Threats Charge with Federal Weapons Charges 15 Appellant argues that the joinder of the threats charge with the firearm and ammunition counts was improper under Fed.R.Crim.P. 8(a), and, accordingly, that the district court lacked jurisdiction over the threats charge.10 16 The district court possesses jurisdiction over a D.C.Code offense "only if the 'offense is joined in the same information or indictment with [a] Federal offense.' " United States v. Koritko, 870 F.2d 738, 739 (D.C.Cir.1989) (quoting 11 D.C.Code Ann. § 502(3) (1981)). Joined means "properly joined in accordance with Rule 8(a), Fed.R.Crim.P." Id. See also United States v. Jackson, 562 F.2d 789, 793 (D.C.Cir.1977). To be properly joined under Rule 8(a), offenses must be "of the same or similar character or based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." 17 Admittedly, Rule 8 has generally been construed liberally in favor of joinder. See United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990) ("[J]oint trials may be preferred, given the heavy and increasing criminal case load in our trial courts."). However, joinder under Rule 8 is not infinitely malleable: it cannot be stretched to cover offenses, like those here, which are discrete and dissimilar and which do not constitute parts of a common scheme or plan. Moreover, joinder in this case has jurisdictional implications: in contrast to joinder cases involving two or more federal offenses, where a court need only determine whether to conduct one or several trials, in this case the court lacked jurisdiction altogether over the threats charge if it was not properly joined with the federal offenses. See Jackson, 562 F.2d at 797. And, as the Jackson court noted, because Congress has determined that D.C. crimes should generally be tried in the D.C. courts,11 "the joinder provisions of Rule 8 should not be strained to uphold federal jurisdiction over local crimes." Id. 18 We believe that Rule 8 was strained beyond tolerable limits to provide jurisdiction over the local threats charge. In order for offenses discrete and dissimilar on their faces to be properly joined under Rule 8, there must be some logical relationship between them. See United States v. Perry, 731 F.2d 985, 990 (D.C.Cir.1984). The government argues that these offenses are logically connected in a "but for" sequential relationship: but for the arrest of appellant on the weapons charges, he would not have been motivated to threaten Officer Creamer. We disagree. Offenses do not become logically related solely by way of an intervening arrest; that is, the fact that an intervening arrest brings preceding and succeeding offenses together temporally or precipitatively simply does not suffice to create the logical relationship contemplated by Rule 8 which requires that they be "connected together or constitut[e] parts of a common scheme or plan." 19 Also militating against joinder in this case is the fact that there was no overlap of issues or evidence between the weapons and threats offenses, thus one of the primary purposes behind Rule 8 joinder, judicial economy, never came into play: "In determining whether offenses are based on 'acts or transactions connected together,' the predominant consideration is whether joinder would serve the goals of trial economy and convenience; the primary purpose of this kind of joinder is to insure that a given transaction need only be proved once." Baker v. United States, 401 F.2d 958, 971 (D.C.Cir.1968). Where there is substantial overlap in evidence between two offenses, joinder "eliminate[s] the need to prove substantially the same evidence twice over, thus realizing precisely the kind of economy envisaged by Rule 8(a)." Blunt v. United States, 404 F.2d 1283, 1288 (D.C.Cir.1968). Where there is no substantial overlap in evidence and particularly where the evidence necessary to prove each of the offenses would be inadmissible in a trial of the other, judicial economy does not favor joinder. Cf. United States v. Leonard, 445 F.2d 234, 236 (D.C.Cir.1971) ("The critical element of the case ... is the simple fact that [evidence surrounding the joined offense] would have been admissible in evidence in a [separate] trial.... In this situation the joinder of offenses promotes the kind of efficiency of administration of criminal justice that is the objective of Rule 8."). In the instant case, there was no evidence necessary to prove the threats offense which was also necessary--or even admissible, see discussion below--to prove the weapons offenses. Judicial economy did not favor joinder in this case. 20 In sum, we find that the D.C.Code threats charge was not properly joined with the federal weapons charges under Rule 8(a) and that the district court therefore erred in failing to dismiss it as requested by appellant in pretrial motion. Accordingly, we reverse the threats conviction and dismiss the charge for lack of jurisdiction. C. Effect of Misjoinder on Weapons Charges 21 We dismiss the threats charge for lack of jurisdiction; however, we must also determine the extent to which appellant was prejudiced with respect to his weapons convictions as a consequence of the misjoinder. The Supreme Court has held that an error involving misjoinder requires reversal if "the misjoinder results in actual prejudice because it 'had substantial and injurious effect or influence in determining the jury's verdict.' " United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). In Lane, the Supreme Court determined that the misjoinder was harmless because, among other things, the evidence of the defendants' guilt there was otherwise "overwhelming" and, further, because the evidence surrounding the misjoined count would likely have been admissible on retrial of the other properly joined counts. Lane, 474 U.S. at 450, 106 S.Ct. 725. 22 In contrast, the evidence against this appellant on the weapons charges was, as already noted, relatively thin. Moreover, evidence of the post-arrest threats charges would almost certainly not have been admissible had the weapons charges been tried separately.12 As a result of the misjoinder, the jury heard irrelevant and clearly prejudicial evidence in connection with the threats charge at the time it was determining appellant's guilt on the weapons charges. As a general matter, there was the obvious danger that a jury might have been influenced against appellant simply because he was the "type" of person who would threaten a police officer. But more specifically in this case, the jury had to determine whether to credit Hazelton's testimony that appellant was the same man who had threatened to "burn" Hazelton's friend Roger. Clearly, the jury would have been more likely to credit this testimony if it heard evidence that appellant had threatened someone else later that night. 23 We are not prepared to say that, in an otherwise uneventful trial, misjoinder standing alone would require reversal of appellant's weapons convictions. Again, however, given the meagerness of the evidence along with the clearly improper remarks made by the prosecutor in closing argument, see discussion below, we simply cannot say that the misjoinder here was harmless, that is, that it did not have a " 'substantial and injurious effect or influence in determining the jury's verdict.' " Id. at 449, 106 S.Ct. 725 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239). D. Prosecutor's Improper Remarks 24 Appellant argues that the prosecutor's closing argument was improper and prejudicial because it interposed the issue of race into the case with the intent of disparaging defense counsel and of fostering an identification of the prosecutor with the jury at the expense of defense counsel. The comments of which appellant complains arose from the prosecutor's apparent effort to rebut appellant's misidentification defense. At trial, appellant constructed a defense of misidentification based on the fact that all three men apprehended in the car in which the Glock was found basically fit the general description given by Hazelton to Creamer and that, in fact, one of these men, Kelvin Spinner, was approximately the same height and weight as appellant, was bald, had some sort of hat with him when arrested, and was seated directly behind the passenger seat under which the Glock was found. 25 In an apparent attempt to rebut this misidentification defense, the prosecutor made the following argument in reference to photographs of appellant and the three other men arrested that night: 26 Now you are going to have government's exhibits nos. 21-A, 21-B, 21-C, and 21-D. Now, if you think everybody looks alike, then maybe 21-A and -B, you can think that [Hazelton] made a mistake, ladies and gentlemen. But don't fall prey to, we all look alike, because [Hazelton] knew the difference. 27 4/11/97 Tr. at 629. On rebuttal, the prosecutor returned to this argument: "Again, we don't all look alike, ladies and gentlemen." 4/11/97 Tr. at 669. 28 Appellant argues that the obvious suggestion underlying the prosecutor's remarks was that defense counsel's misidentification theory was itself based on a racial stereotype of the "they all look alike" variety.13 The government argues that the more natural interpretation of her remark is that people in general do not all look alike, a neutral and inoffensive observation. It is true, as this court has noted, that courts " 'should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning' " or that a jury " 'will draw that meaning from the plethora of less damaging interpretations.' " United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). However, the prosecutor did repeat her "we don't all look alike" argument and there can be no gainsaying that the remark is instantly recognizable as a reference to racial stereotyping. Regrettably, we find under the circumstances that the risk was altogether too real that a juror would take from this reference the distinct impression that the prosecutor herself believed defense counsel to be flirting with racial stereotyping in constructing his misidentification defense.14 29 Moreover, these references arose in the context of what must reasonably be read as a marked attempt by the prosecutor to portray defense counsel as an interloper in a world to which the other trial participants--the prosecutor, the defendant, Hazelton and the jurors--belonged. Defense counsel attempted in closing argument to challenge Hazelton's credibility by noting, among other things, that Hazelton was barely 17 at the time the incident occurred.15 In her rebuttal argument, the prosecutor argued the following: 30 In Mr. Boss's [defense counsel's] world, 17-year-old boys don't have to have those responsibilities. In Mr. Boss's world, people don't come of age if they can drink alcohol, people who don't come of age become responsible until they can vote. In the District of Columbia, people come of age when they have to come of age, ladies and gentlemen. 31 * * * 32 Mr. Boss's world is a wonderful world, but in Lamar Hazelton's world, he had to know whether a gun was cocked or not. He's had unfortunate incidents, and the one thing Mr. Boss's world doesn't obviously understand today is that when an unknown black male who's bald and comes up looking for one of your boys, Roger, and comes back and threatens with a gun and burning someone, that you're going to remember his face. 33 * * * 34 In Mr. Boss's world, a 17-year-old isn't supposed to be responsible for your friend. That's in Mr. Boss's world. 35 * * * 36 Now, the final thing in Mr. Boss's world, ladies and gentlemen, is that a 17-year-old man growing up in the red zone, who has decided to do the right thing by going to a military-type boot camp to ensure that he gets a high school diploma and to study for the S.A.T., you don't study for the S.A.T to go back on the corner, ladies and gentlemen. You study for the S.A.T to go to college, and if you don't think that someone with that mature caliber of an individual is able to come in here and to present testimony in a serious situation as today, then you, too, perhaps live in a Mr. Boss's world, because that gentleman is our future and he's doing the right thing. 37 4/11/97 Tr. at 665-68. 38 While a prosecutor " 'may strike hard blows, [she] is not at liberty to strike foul ones.' " United States v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). Reluctantly, we conclude that the prosecutor's "we don't all look alike" remarks, surely susceptible of if not compelling the interpretation that defense counsel based his misidentification defense on a racial stereotype, as well as her suggestion that defense counsel was out of touch with the realities and concerns of Hazelton's world and, by implication, of the jury's as well, tack too close to the wind and, in a close case like this, could well have inflamed the emotions of the jury and resulted in a verdict based on something other than the evidence.16 39 Appellant concedes that he failed to object to these remarks and therefore that the "plain error" standard of review applies. See United States v. Perholtz, 842 F.2d 343, 361 (D.C.Cir.1988). In order to reverse a conviction under plain error review, we must find that "an improper prosecutorial remark ... cause[d] substantial prejudice to the defendant." Monaghan, 741 F.2d at 1443. One of the factors determining whether an improper remark made by the prosecutor substantially prejudiced a defendant's trial is "the certainty of conviction absent the improper remarks." Id. Again, as we have noted, the evidence against appellant on the weapons counts was not such that his conviction was by any means a certainty. We therefore conclude that the improper remarks, in particular when coupled with the prejudice flowing from the misjoinder, did cause substantial prejudice to appellant. We find that under these circumstances the remarks amount to plain error and, accordingly, mandate reversal of appellant's weapons convictions. E. Sentence Enhancement 40 Although reversal of appellant's convictions means that we need not reach this issue, we think it useful for future reference to note that the district court did not have before it the necessary information to determine whether appellant's prior state conviction of burglary was properly designated as a crime of violence for purposes of calculating appellant's base offense level. 41 The sentencing guidelines applicable to a violation of 18 U.S.C. § 922(g)(1) provide for a base offense level of 20 where the offender has one prior felony conviction for a crime of violence. See U.S.S.G. § 2K2.1(a)(4)(A). The guidelines define a crime of violence as, inter alia, a "burglary of a dwelling." U.S.S.G. § 4B1.2(a)(2). Appellant's PSR indicated that appellant had been convicted of a prior crime of violence--namely a 1982 Virginia burglary conviction. However, the Virginia statute to which appellant apparently pled guilty covers burglaries of dwellings and non-dwelling structures alike.17 Accordingly, appellant argued at sentencing that the court could not find that he had been convicted of a prior crime of violence with respect to this burglary because the government had failed to produce a charging document, plea agreement, or the like which would reliably indicate the precise crime to which appellant pled guilty. The government argued at sentencing that it did not need to produce any such document because there was a sufficient basis in the record before the court to conclude that appellant had in fact pled guilty to burglary of a dwelling--namely, a description of the burglary which was contained in the PSR prepared for the current charges. This description had been provided by the United States Probation Office for the Western District of Virginia and indicated that the burglary to which appellant pled guilty was of a residential dwelling. 42 The government was unable to identify the original source of this description, that is, where the Probation Office for the Western District of Virginia obtained the information it passed along to the Probation Office for the District of Columbia. Accordingly, as appellant correctly points out, there was simply no way of knowing at sentencing whether this description was obtained from a legitimate and reliable source, such as a charging document, a plea agreement, or a previous presentence investigation report adopted by the state court in the burglary case, or whether this description came from an untested source, such as an arrest warrant, a police report, or a prosecutor's proffer. 43 "[I]t is the responsibility of the government to produce such documents as are necessary to establish that a prior offense can be properly designated a 'crime of violence.' " United States v. Hill, 131 F.3d 1056, 1065, n. 10 (D.C.Cir.1997). If the government fails to meet this responsibility, a sentencing court may not turn to potentially unreliable second-hand information in designating a prior offense as a crime of violence. 44 For the reasons stated herein, we reverse the federal weapons convictions and order dismissal of the threats count for improper joinder. 45 So ordered. 1 Appellant also argued that the firearm and ammunition counts were multiplicitous and hence that one of the two must be vacated on double jeopardy grounds. The government concedes on appeal that appellant's two convictions should be merged and one vacated 2 We dismiss the threats count on jurisdictional grounds 3 D.C.Code § 22-2307 provides that "[w]hoever threatens within the District of Columbia to kidnap any person or to injure the person of another or physically damage the property of any person or of another person, in whole or in part, shall be fined not more than $5,000 or imprisoned not more than 20 years, or both." 4 U.S.S.G. § 2K2.1(a)(4)(A) provides that in cases involving the unlawful possession of firearms or ammunition, the base offense level to be applied is 20 if the defendant had a prior felony conviction of a crime of violence. 5 U.S.S.G. § 4B1.2(a)(2) defines a crime of violence as, any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-- ... (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 6 There was some confusing testimony at trial about whether the description given by Hazelton indicated that the suspect was wearing a hat. Creamer testified at trial that Hazelton had stated that the suspect had some sort of headpiece on. When subsequently questioned as to this at trial, however, Hazelton indicated that he could not have said the suspect had a hat on because he had noted that the suspect was bald. See 4/10/97 Transcript ("Tr.") at 449 7 Officer Creamer testified that all three of the men in the car were dressed in black. See 4/9/07 Tr. at 292. Officer Eric Skinner of the Identification and Records Division of the Metropolitan Police Department testified about the physical characteristics of the three men and appellant. All four men were designated as being medium complected and their heights and weights were 5'6", 120; 5'10", 205; 5'10", 200; 5'11", 205 (appellant). See 4/10/97 Tr. at 536-37 8 In fact, on redirect, Hazelton's identification of the gun he had seen on the suspect faltered somewhat: "It's black. The handle, the handle. (Pause). The handle.... I can't remember exactly how it looked." 4/10/97 Tr. at 419-20 9 Hazelton recalled that the car was gray but admitted that he might have been mistaken about the color (the car was in fact blue) 10 The threats charge arose from comments appellant made to Officer Creamer after having been arrested on the weapons charge. Creamer testified that appellant was on the phone when he began to speak very loudly, using profanity and making derogatory comments to Creamer. When Creamer informed appellant that his phone time was up, appellant replied: "Bitch-ass nigger, I'm going to get you when I get out." 4/9/97 Tr. at 271 11 The Jackson court noted that a major purpose of the District of Columbia Court Reform and Criminal Procedure Act of 1970 was "to shift general jurisdiction over D.C.Code offenses from the United States District Court to the Superior Court of the District of Columbia." 562 F.2d at 793 12 The evidence would not be relevant to a material issue other than character, see FED.R.EVID. 404(b), and would, in any event, be prejudicial under FED.R.EVID. 403 13 Since the prosecutor, the defendant, Hazelton, and the other car occupants (but not defense counsel) were all African-American, appellant argues that the "they all look alike" stereotype converted into "we [don't] all look alike" in the prosecutor's closing argument 14 The possibility that the jury would have so understood the prosecutor's remarks is particularly troublesome here because misidentification was appellant's only defense. Insofar as the prosecutor raised the spectre that this defense was based on racist assumptions, appellant was clearly prejudiced 15 Defense counsel's precise words were the following: So it comes down to Lamar Hazelton. Lamar Hazelton just turned 17 at the time this occurred. He's one month past 16. He's not old enough to vote. He's four years away from society deeming him responsible enough to be able to drink a beer. This is the man upon whom Mr. Richardson's fate relies, because he is the only man that identifies Mr. Richardson as the person who came up to him. 4/11/97 Tr. at 648. 16 That the prosecutor attempted to foster an identification with the jury at the expense of defense counsel is also evidenced by a remark the prosecutor made in her opening statement: "I'm a prosecutor, and to say that I represent the United States, I'm here in the District of Columbia and what I do and who my client is are [sic] the individuals who live in the District of Columbia, along with yourselves. So, as Mr. Boss's client is Mr. Richardson, my clients are the 14 people, yourselves, as well as your other residents...." 4/9/97 Tr. at 231-32. The government concedes that the foregoing comment was ill-advised and was not condoned by the United States Attorney's Office 17 On appeal, the government indicated that it was prepared on remand to proffer a certified copy of the signed judgment for appellant's 1982 conviction which it claims establishes that appellant actually pled guilty to burglary under a section of the Virginia Code which is limited on its face to the burglary of a dwelling (meaning that the PSR was incorrect with respect to the section of the Virginia Code to which appellant pled guilty). We discuss the sentence enhancement issue in terms of what the sentencing court had before it at the time, not in terms of what the government has proffered on appeal

143 F.2d 667 (1944) FOX v. ALCOA S. S. CO. et al. No. 10998. Circuit Court of Appeals, Fifth Circuit. July 7, 1944. Rehearing Denied August 9, 1944. Raymond H. Kierr, of New Orleans, La., for appellant. Herbert W. Christenberry, U. S. Atty. of New Orleans, La., L. V. Cooley, Jr., Asst. U. S. Atty., of Slidell, La., Gerald H. Bucey, Regional Counsel, War Shipping Administration, for United States of America. Geo. H. Terriberry, Andrew R. Martinez, and Benj. W. Yancey, all of New Orleans, La., for Alcoa S. S. Co. Before SIBLEY, HUTCHESON, and LEE, Circuit Judges. PER CURIAM. Appellant, a seaman on a ship of Panamanian registry, but operated for the United States by the War Shipping Administration, brought a libel in personam for maintenance and cure against the United States, the War Shipping Administration and Alcoa Steamship Company. The United States and the War Shipping Administration moved to dismiss because no claim in writing had been filed with and disallowed by the War Shipping Administration as by law required. On the hearing of the motion it was conceded that there was no good claim against the Alcoa Steamship Company. Though it was contended that a certain letter might constitute a claim in writing, the motion was sustained. On this appeal it is argued that the Regulation of the War Shipping Administration, Sect. 304.26, 8 Fed. Reg. 5414, which declares that if a claim is filed and the claimant is not notified within sixty days of the determination of it, the claim shall be presumed administratively disallowed and the claimant shall be entitled to enforce his claim by court action, fixes an unreasonably long waiting period before suit can be filed on a claim for maintenance and cure, and is void, and may be disregarded by bringing a suit without making claim or waiting. The United States could not have been sued at all except for the provisions of the Act of March 24, 1943, 50 U.S. C.A.Appendix, § 1291(a). Suit can be maintained only upon the terms it fixes. The Act states: "Any claim referred to in clause (2) or (3) hereof shall, if administratively disallowed in whole or in part, be enforced pursuant to the provisions of the Suits in Admiralty Act, notwithstanding the vessel on which the seaman is employed is not a merchant vessel within the meaning of such Act. * * * When used in this subsection the term `administratively disallowed' means a denial of a written claim in accordance with rules or regulations prescribed by the Administrator, War Shipping Administration." The privilege of suing is given only after administrative disallowance of a written claim. This accords with the general policy of the United *668 States; for example, claims for war risk insurance, tax refunds, and generally all claims auditable in the General Accounting Office. The letter produced, as in effect a claim, was written to attorneys for Alcoa Steamship Company, and their reply was that they were not presently in position to discuss the matter. The letter never went to the War Shipping Administration. No claim in writing can be said to have been presented against the United States and disallowed as required by the Act. We do not really reach the question of the reasonableness of the regulation, which is said to provide in its effect a delay of sixty days before suit, though such is not its purport. The statute itself requires as a condition of suit against the United States that a claim in writing be filed for consideration by the War Shipping Administration, and this has not been done. What delay in considering it shall be taken as a disallowance is a proper matter for regulation by the Administrator, and sixty days does not seem on its face unreasonable. The dismissal was proper, but since it was not on the merits, but for prematurity, it is of course without prejudice to the merits. Judgment affirmed.

FILED NOT FOR PUBLICATION JUN 29 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT RICARDO ERNESTO AVALOS- No. 09-73165 PADILLA, Agency No. A092-810-118 Petitioner, v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 15, 2011 ** Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges. Ricardo Ernesto Avalos-Padilla, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims * 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). of due process violations in immigration proceedings, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1245-46 (9th Cir. 2008), and we deny the petition for review. Avalos-Padilla’s due process claim fails because Avalos-Padilla was given the opportunity to present witnesses on his behalf, he failed to request a continuance when they did not appear, and he failed to demonstrate that the absence of their testimony prejudiced him. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice for a petitioner to prevail on a due process claim). Avalos-Padilla’s contention that the IJ improperly judged his application on the basis of his witnesses’ failure to appear at his hearing is not supported by the record. PETITION FOR REVIEW DENIED. 2 09-73165 

425 F.Supp. 331 (1976) Frances MORRIS and Maxine Woods, Plaintiffs, v. L. Marion GRESSETTE, President Pro Tem of the South Carolina Senate, et al., Defendants. No. CA/75-1998. United States District Court, D. South Carolina, Charleston Division. March 12, 1976. *332 Armand G. Derfner, Charleston, S.C., Paul R. Dimond, Lawyers Committee for Civil Rights Under Law, Washington, D.C., for plaintiffs. Kenneth L. Childs, Treva G. Ashworth, Asst. Atty. Gen., Randall T. Bell, Columbia, S.C., for defendants. Before HAYNSWORTH, Chief Circuit Judge, RUSSELL, Circuit Judge, and HEMPHILL, District Judge. DONALD RUSSELL, Circuit Judge: The plaintiffs seek by this action to enjoin the enforcement of the South Carolina State Senate Reapportionment Act of 1972 (described as Act 1205 in the complaint)[1] on the ground that such Act has never been validated as required by § 5 of the Voting Rights Act of 1965, § 1973c, 42 U.S.C.[2] The background of the legislation under review and the litigation surrounding it is fully set forth in Harper v. Levi (1975) 171 U.S.App. D.C. 321, 520 F.2d 53. It is unnecessary to repeat it in any detail since the issues involved here are fairly narrow and the factual basis for them largely uncontroverted. It is conceded by all parties that the challenged legislation is within the coverage of the Voting Rights Act of 1965 and that compliance with § 5 of that Act was a condition to the enforcement of such legislation. Compliance, giving the State either interim or permanent clearance for enforcement of the legislation, however, could have been effected by the State under § 5 in two ways. It could have filed an action for a declaratory judgment in the District Court for the District of Columbia or it could, through the State Attorney General, have submitted the legislation to the Attorney General of the United States for such clearance. If, in the declaratory judgment action, the legislation had been found not to offend the Voting Rights Act, or, if the Attorney General of the United States, *333 within sixty days after submission to him, failed to interpose an objection to the legislation, the State could enforce the revised election procedure, unless and until there has been a successful proceeding to invalidate the state law on constitutional grounds. In this case, the State chose, in line with the practice generally adopted by complying States under the Act, to follow the procedure of submitting the reapportionment legislation to the Attorney General of the United States.[3] It is conceded the Attorney General did not interpose an objection to the legislation within sixty days after it was properly submitted to him. Actually, he advised the State formally within the sixty day period that he interposed no objection to the enforcement of the legislation. The plaintiffs herein, however, filed, about thirty days after the expiration of the sixty day period allowed the Attorney General to interpose objection, "a class action in the District Court [of the District of Columbia] seeking review, pursuant to Section 10 of the Administrative Procedure Act, or [the] decision of the then Attorney General to forego objection under Section 5 of [the] proposed reapportionment of the South Carolina Senate."[4] The District Court held in that case that the action of the Attorney General was reviewable under the Administrative Procedure Act[5] and, on review, concluded "that the Attorney General had not fulfilled his statutory obligation and ordered him to reconsider without regard to the prior court decision."[6] On appeal, the jurisdiction to review was upheld and the finding that the prior failure to interpose an objection by the Attorney General was ineffectual to make the enforcement of the Act effective was sustained.[7] At this point, the plaintiffs, armed with the decision in Harper returned to this Court. They contended that, on principles of collateral estoppel, Harper is conclusive on the issues of (1) the reviewability under the Administrative Procedure Act of the Attorney General's initial decision not to interpose an objection, (2) the invalidity of that initial action of the Attorney General, and (3) the effectiveness of the objection to the legislation, entered by the Attorney General, in obedience to the decision of the District Court in that case some year and a half after the submission to the Attorney General under the Act, as an absolute bar to enforceability of the state legislation, absent successful prosecution of a suit for a declaratory judgment of the constitutional validity of such legislation. Under this argument, if sustained, we would be limited in the action we could take to enjoining the enforcement of the Act itself for failure to comply with the requirements of § 5 and to ordering the State to submit in a reasonable time an acceptable substitute reapportionment plan or, in default of such submission, to promulgating an interim plan of reapportionment of our own. The defendants assert, on the other hand, that collateral estoppel is not applicable and that this Court is free to exercise its own independent judgment on the question whether the failure of the Attorney General to interpose within sixty days an objection automatically authorized the State to enforce the Act. *334 It is obvious from this statement of positions that the first problem to be addressed is whether the defendants are precluded by collateral estoppel from asserting, contrary to the conclusions reached in Harper v. Levi, that the conditions of § 5 were satisfied when the Attorney General failed to interpose an objection within sixty days after submission to him of the Act. We conclude they are not so precluded. Our reasons for this conclusion follow. There is no dispute with the proposition that, contrary to the earlier view based on a mechanical application of the principle of mutuality, the modern rule is that a valid judgment in a prior suit, involving the same issues may, by way of collateral estoppel be asserted in a subsequent action by a stranger to the first suit against one who was a party or, in privity with a party, in that earlier action. And this is the rule of our Circuit, as stated in a number of decisions. State of North Carolina v. Chas. Pfizer & Co., Inc. (4th Cir. 1976) 537 F.2d 67; Thomas v. Consolidation Coal Company (4th Cir. 1967) 380 F.2d 69, cert. denied 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967) reh. denied 389 U.S. 1059, 88 S.Ct. 768, 19 L.Ed.2d 862 (1968); Graves v. Associated Transport, Inc. (4th Cir. 1965) 344 F.2d 894; and see, generally, 31 A.L.R.3d 1044, et seq.[8] But this plea, it must be observed, is only available against persons who were either parties to the prior judgment or, in privity with such parties.[9] The Supreme Court so declared recently in Blonder-Tongue v. University Foundation, supra, 402 U.S. at 329, 91 S.Ct. at 1443: "Some litigants — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position. See Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940); Bernhard [Bernhard v. Bank of America] 19 Cal.2d 807 at 811, 122 P.2d 892 at 894." The courts have, it is true, developed some exceptions to this rule by broadening the definition of privies under the rule to include persons not expressly named as defendants but whose conduct and intimate participation in the action justify their being so classified. But, "in order for a person not formally made a party to a suit to be estopped by the decision therein, he must either be in privity with a party thereto in the strict sense of the term or he must not only aid in the prosecution or defense of a suit, but have the right to participate and control such prosecution or defense." HyLo Unit & Metal Products Co. v. Remote C. *335 Mfg. Co. (9th Cir. 1936) 83 F.2d 345, 350. And this is the rule as it has been applied consistently in this Circuit. Thus, in E. I. Du Pont de Nemours & Co. v. Sylvania I. Corporation (4th Cir. 1941) 122 F.2d 400, 405, it was held that "mere assistance in the defense of a case is insufficient to bind a person not joined as a party;" it is only "participation in the trial and control of the litigation," which will "bind the participant" who is not "a party to the record." The same rule was restated in the later case of Thaxton v. Vaughan (4th Cir. 1963) 321 F.2d 474, 479, wherein the Court stated that the "mere appearance as a witness, or the supplying of an attorney,"[10] is insufficient to bind a non-party by the judgment;[11] and that it is only "where a nonparty, * * * effectively controls the action" that "he may be bound by the result."[12] Other courts used a somewhat different formula in phrasing the exception, declaring that where one though not a formal party to the litigation, "had the initiative in a recognizably substantial litigation," he may be bound under the doctrine of collateral estoppel by the judgment entered therein. Poster Exchange, Inc. v. National Screen Serv. Corp. (5th Cir. 1975) 517 F.2d 117, 123. And they have defined "initiative" in this sense as "choice of forum."[13] Assuredly, if the criteria as stated in these cases are applied here, the defendants cannot be considered as either parties or privy to parties to the judgment in Harper v. Levi or bound by the decision in that case. They did not choose the "forum;" they did not assist in the defense; they did not participate in the trial; they were not consulted by the defendants on defense strategy; they did not appear as a witness or supply an attorney; and they unquestionably did not control the litigation in Harper. They were accordingly not within the exceptions to the rule as stated in Blonder-Tongue. The plaintiffs argue, though, that the present defendants could have intervened in Harper and that because they failed to intervene, the defendants are bound by the decision in that case, even though not named as parties defendant and even though they were not participants in any way in that case. This, it must be said, is an unusual and novel twist to the doctrine of collateral estoppel. Its broad applications, if adopted, could create shocking situations and disturb long-established principles. Under this claimed extension of the doctrine of collateral estoppel, a person, who knows of a suit wherever filed, involving an issue affecting him, and, though it may be that he cannot be served with process in that suit and made amenable to the jurisdiction of the Court, he, if he fails to intervene, can be concluded by the judgment in that case. Such an argument, so contrary to fundamental concepts of due process, can be justified neither in reason nor on authority and, whenever asserted, it has been consistently repudiated both in authoritative federal and state decision. Chase National Bank v. Norwalk (1934) 291 U.S. 431, 444, 54 S.Ct. 475, 78 L.Ed. 894; Gratiot State Bank v. Johnson, supra, 249 U.S. at 249-50, 39 S.Ct. 263; Western Union Tel. Co. v. Foster (1918) 247 U.S. 105, 115, 38 S.Ct. 438, 62 L.Ed. 1006; Brown v. Wright (4th Cir. 1943) 137 F.2d 484, 487; Gonzales v. Cassidy (5th Cir. 1973) 474 F.2d 67, 76; McGhee v. United States (1971) 437 *336 F.2d 995, 1000, 194 Ct.Cl. 86; Hatridge v. Aetna Casualty & Surety Company (8th Cir. 1969) 415 F.2d 809, 812; King v. Kings County Lafayette Trust Company (E.D.N. Y.1970) 323 F.Supp. 640, 648; Pollard v. Roberts (E.D.Ark.1968) 283 F.Supp. 248, 254, aff'd 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968); Stott v. United States (S.D.N.Y.1958) 166 F.Supp. 851, 854; United States v. Cohen (S.D.Fla.1967) 271 F.Supp. 709, 720; State v. Fidelity and Casualty Company of New York (1966) 268 N.C. 234, 150 S.E.2d 396, 401; O'Hara v. Pittston Co. (1947) 186 Va. 325, 42 S.E.2d 269, 280, 174 A.L.R. 945; Sweeting v. Campbell (1954) 2 Ill.2d 491, 119 N.E.2d 237, 240; Crockett v. Harrison (1960) 26 Ill. App.2d 9, 167 N.E.2d 428, 431; Bannard v. New York State Natural Gas Corporation (1961) 404 Pa. 269, 172 A.2d 306, 312; Mixon v. Barton Lumber and Brick Company (1956), 226 Ark. 809, 295 S.W.2d 325, 329; 46 Am.Juris.2d 680 ("[t]he right to intervene in an action does not, in the absence of its exercise, subject one possessing it to the risk of being bound by the result of the litigation, under the doctrine of res judicata.") The opinion of Justice Brandeis, speaking for an unanimous Court in Chase National Bank, it would seem, should long ago have laid this argument to rest. There, he said (291 U.S. at 441, 54 S.Ct. at 479): "* * * The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. Whether under the Ohio practice it would have been possible for the trustee to intervene, we have no occasion to determine. Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights." In Gratiot State Bank, the same Justice had expressed the rule thus (249 U.S. at 249, 39 S.Ct. at 264): "* * * The Trustee contends, however, that since by §§ 18b and 59f of the Bankruptcy Act, any creditor is entitled to intervene in the bankruptcy proceedings, the Bank should be considered a party thereto. * * * But he is under no obligation to intervene, and the existence of the right is not equivalent to actual intervention. Unless he exercises the right to become a party, he remains a stranger to the litigation and, as such, unaffected by the decision of even essential subsidiary issues." And this was stated as the rule in this Circuit in Brown, supra, at p. 487, where Judge Parker put it: "* * * And the fact that he may have had the right to intervene in the state proceeding is immaterial, since he did not in fact intervene or in any way make himself a party thereto." To paraphrase King,[14] it "seems incredible," that the plaintiffs would press the argument that failure to intervene provides a basis for collateral estoppel in the face of such an array of final federal and state authorities. They, however, posit that Penn-Central Merger Cases (1968) 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723, supports their contention. We do not so understand this decision. Penn-Central was an unusual case involving an attempted railroad consolidation under the terms of Section 407 of the Transportation Act of 1920, as amended, § 5(2)(b), 49 U.S.C., where various objections to the plan of consolidation were made in different jurisdictions. The New York Court, where most of the objections were centered, ruled on certain objections to the plan and the Supreme Court merely held that when it had affirmed "the decision of the New York court," that decision of the Supreme Court itself on those issues necessarily "preclude[d] further judicial review or adjudication of the issues upon which it [the Supreme Court] pass[ed]."[15] But this conclusion does not, we suggest, rest on *337 collateral estoppel; it is no more than a statement of the well-recognized relationship of the Supreme Court to the inferior federal courts and the effect of the former's decisions on those of the latter. The decision of the Supreme Court on the issues decided in Penn-Central unquestionably obligated all lower federal courts to follow that decision and "precluded" them from reaching a contrary conclusion or adjudication on the issues resolved therein by the Supreme Court. See Hicks v. Miranda (1975) 422 U.S. 332, 344-5, 95 S.Ct. 2281, 45 L.Ed.2d 223. In other words, the Supreme Court was simply stating the obvious fact that inferior courts may not reverse the Supreme Court or its rulings. That is the holding in that case, as we view it. So construed, it accords with established principles and provides no warrant for assuming that failure to intervene may be translated into a collateral estoppel against one not a party to the litigation. Of course, had Harper v. Levi been affirmed on appeal by the Supreme Court, we would, as an inferior federal court, be obligated to follow it, just as the Supreme Court in Penn-Central said that all lower federal courts, confronted with the same issues decided by the Supreme Court therein, were bound to follow Penn-Central. But Harper v. Levi was not appealed and the Supreme Court did not affirm it. We are accordingly not obliged to follow it but may exercise our own judgment. We now pass to the substantive issue, which is determinative of the plaintiffs' claim in this action. That issue is the reviewability at the instance of the plaintiffs of the Attorney General's decision not to interpose an objection to the State Senate's reapportionment statute within sixty (60) days after its submission. The Court in Harper v. Levi held, and the plaintiffs contend, that such decision was reviewable at the instance of the plaintiffs under the Administrative Procedure Act. We do not. § 5 is silent on the reviewability of the action of the Attorney General as provided thereunder. In that event, one "affected adversely" by the action will be entitled to judicial review thereof under the Administrative Procedure Act, if such action is adjudicatory and the one affected thereby has no "other adequate remedy in a court"[16] unless there is "persuasive reason to believe that [non-reviewability] was the purpose of Congress."[17] In our view the action of the Attorney General under § 5, however, is (1) not adjudicatory, and (2) any party with standing, who was dissatisfied with his action, had an "adequate remedy in a court," and (3) there were not simply "persuasive" but compelling reasons to believe non-reviewability of that action was "the purpose of Congress." That the action of the Attorney General is not adjudicatory follows from the fact that it is neither a final nor a definitive finding of any kind on the validity of the legislation submitted.[18] It decides nothing on the merits which can bind anyone.[19] The determination of the Attorney General under § 5 has "no [more] binding legal consequence" than did the administrative action in Ewing v. Mytinger & Casselberry (1950) 339 U.S. 594, 600, 70 S.Ct. 870, 94 L.Ed. 1088, reh. denied 340 U.S. 857, 71 S.Ct. 69, 95 L.Ed. 627 (1950), which, because it included "no binding legal consequence," and was not adjudicatory, was found not to be subject to judicial review. *338 Nor does the Attorney General's action operate to bar any party, whether it be the submitting State or political subdivision or a complaining private party, from maintaining in an appropriate proceeding its or his claim in reference to the validity of the submitted legislation. § 5 makes this especially clear with its proviso that "neither the Attorney General's failure to object nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement * * *." The right of these plaintiffs to attack this State reapportionment act on constitutional grounds under the Fifteenth Amendment thus remained intact, unimpaired in the slightest by the Attorney General's determination, and expressly preserved by the specific language of § 5 itself. If the State which submits the legislation is dissatisfied with the Attorney General's determination, its "remedy in court," as declared in the section, is not judicial review of the Attorney General's determination but a declaratory judgment action in the District Court of the District of Columbia. In Allen v. State Board of Elections, supra, 393 U.S. at 549-50, 89 S.Ct. at 823, the Court made this abundantly clear: "If the Attorney General objects to the new enactment, the State may still enforce the legislation upon securing a declaratory judgment in the District Court for the District of Columbia. * * * * * * "Once the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5." It cannot then be said that the plaintiffs, if denied the right of judicial review, are without an "adequate remedy in court" for the vindication of their rights under the Fifteenth Amendment. This "other adequate remedy" is far more immediate and more available than that available to an employer in a certification proceeding under the National Labor Relations Act, which has been held not reviewable under the Administrative Procedure Act, see N.L. R.B. v. Clement-Blythe Companies (4th Cir. 1969) 415 F.2d 78, 81-2, and the procedure which the Court said in South Carolina v. Katzenbach (1966) 383 U.S. 301, at 333, 86 S.Ct. 803, at 821, 15 L.Ed.2d 769, might be "a partial substitute for direct judicial review." In Klein v. Commissioner of Patents of United States (4th Cir. 1973) 474 F.2d 821, 824, we declared that § 704, 5 U.S.C. of the Administrative Procedure Act, established "two essential elements as a prerequisite to judicial review: (1) final agency action and (2) no other adequate remedy in a court." It is plain the plaintiffs cannot satisfy either the requirement that the administrative decision be adjudicatory or the requirement that the plaintiffs be without "any other adequate remedy in a court." Neither of those requirements for judicial review applies to the Attorney General's determination under § 5.[20] There is another objection to judicial review of the Attorney General's determination at the instance of the plaintiffs. It is one that the District Court in Harper did not note and that the Court of Appeals on appeal glossed over without any real discussion. The right to judicial review under the Administrative Procedure Act is given only to one who is "adversely affected" or who has suffered "injury in fact" by the challenged administrative ruling. § 702, 5 U.S.C.; Conservation Council of N. C. v. Costanzo (4th Cir. 1974) 505 F.2d 498, 501; Duba v. Schuetzle (8th Cir. 1962) 303 F.2d 570, 574-5. However the Attorney General decides under § 5, that determination *339 cannot, as we have seen, bar the rights of the plaintiffs to vindicate their rights in the courts. They are not "adversely affected" by the Attorney General's ruling. The only party which could be "adversely affected" by the Attorney General's determination, if adverse to the enforcement of the legislation, would be the State or political subdivision whose proposed change was denied clearance; and it would be only that State or political subdivision which would have standing to invoke judicial review, if such were available. And that is exactly what the same District Court which decided Harper, it would seem, held a year after it had decided Harper.[21] The plaintiffs would lack standing to request a review of the Attorney General's determination, if review were permissible. The plaintiffs, however, cite the recent case of Dunlop v. Bachowski (1975) 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377, as supporting their contention that the action of the Attorney General under § 5 was reviewable at their instance. That case, far from supporting, actually illustrates, by contrast, the non-reviewability of the Attorney General's action under § 5. In Bachowski, the statute grants the Secretary of Labor authority to determine whether there were sufficient irregularities in a union election to justify a suit to invalidate that election and, if he does, he "shall" file suit for that purpose.[22] But the statute specifically provides that "[t]he remedy" thus provided "for challenging an [union] election already conducted shall be exclusive."[23] In short, the action of the Secretary is absolute and final, and unless his finding supports a suit and he decides to sue, any member, who may have filed the complaint prompting the Secretary's investigation, is completely without any remedy in any court; he is absolutely at the mercy of the Secretary and his decision for the vindication of his rights with reference to the election.[24] Under those circumstances, the Court properly found a right of judicial review of the Secretary's decision. But here, the action of the Attorney General forecloses no one's rights to pursue his claim "in a court;" indeed, it cannot affect in the slightest that right. All parties have, after the Attorney General's action, the same judicial remedy they had before his action was taken and those rights cannot be barred or prejudiced by the action of the Attorney General. Bachowski involved a procedure entirely different from that created under § 5. Beyond this, the express language of § 5, as well as its legislative history, provides, as we have said, not simply "persuasive" but compelling reason to believe Congress did not intend that this determination by the Attorney General should be subject to the delays that would follow from judicial review. The legislative history relating to the inclusion of this provision in § 5 demonstrates that Congress intended thereby, as the Supreme Court in Allen phrased it, to give "the covered State a rapid method of rendering a new state election law enforceable"[25] without any of the delays incident to resort to the courts in any forum. The legislative purpose, as set forth in the provision, was to avoid the very judicial hearing, with its attendant delay, for which the plaintiffs argue. The legislative hearings, during which the provision was developed, confirm this conclusion. References were repeatedly made during these early hearings to the delays that resort to the courts *340 would entail in the enforcement of changes in a State's election procedures.[26] There was growing disquiet in the committee over the extraordinary power being accorded for intrusion by the federal government through a veto on state legislative power as the hearings proceeded. This criticism of § 5, as it appeared in the original version submitted to the Congress by the Department of Justice, apparently came to a head during an appearance of the Attorney General before the Senate Judiciary Committee. The Attorney General conceded that the delays incident to judicial clearances of state legislation on voter qualification and election standards would "take[s] a long time" and "[i]n the interval the purposes of the act are frustrated." He then suggested, as an answer to the objection and as an expeditious means of securing an administrative clearance that would obviate the delays of any judicial proceedings and would in a proper case give clearance for immediate enforcement of the State legislation, the addition to the section of a provision "giving the Attorney General discretion" to pass on such laws and to deny clearance "only to those laws which the Attorney General takes exception to within a given period of time."[27] This suggestion by the then Attorney General, who was the sponsor and had original responsibility for the drafting of the Act, was the genesis of that provision of § 5 which gives to the Attorney General the power to clear for immediate enforcement State legislation submitted by a State covered by § 4 of the Act. If the legislative purpose of including this provision was, as it seems plain it was, to make available a remedy that would not be subject to court delay and yet not bar the rights of any party with standing to defend or attack the State law in a proper proceeding, that purpose would be defeated by holding that the Attorney General's action was subject to judicial review.[28] Judicial review of the Attorney General's determination, if intended by Congress, would, too, require the Attorney General to state more "explicit the basis" and reasoning for that determination. This is true, because, as the Court emphasized in Dunlop,[29] such supporting findings and reasoning are essential to judicial review. In no other manner could the court determine whether the determination of the Attorney General was based on "substantial evidence" and lacking in arbitrariness. But § 5 imposes no duty on the Attorney General *341 to make such explicit findings and we read Georgia v. United States (1973) 411 U.S. 526, 536, 93 S.Ct. 1702, 36 L.Ed.2d 472, as holding that the statute imposes none. In fact, the statute does not require the Attorney General either to object or not to object; he can be silent and, at the completion of sixty days from date of submission, the State or political subdivision may proceed to enforce the legislation.[30] That result is entirely inconsistent with any notion that the Attorney General must give reasons for his determination. To repeat, reviewability would frustrate the plain Congressional purpose.[31] There is another troublesome matter that arises if the plaintiffs' theory is upheld. It would seem axiomatic that, if the plaintiffs have the right to judicial review of the Attorney General's determination, the State must have a like right. Just one party to a controversy cannot be given a right to review; the right must be equally available to both parties. Yet, it has been consistently assumed in all the decisions involving § 5 that, in the event the Attorney General objects to a State law, the State's sole and exclusive remedy is a declaratory judgment action in a three-judge District Court of the District of Columbia. See Allen, 393 U.S. at 562, 89 S.Ct. 817; Georgia v. United States, 411 U.S. at 541, n. 13, 93 S.Ct. 1702; United Jewish Org. of Williamsburgh v. Wilson at 520. But under any theory of the reviewability of the Attorney General's determination, review would be before a single District Judge. This certainly would be the result if Harper v. Levi were followed, and would be contrary to the decision in Allen, which declares that the State's only remedy is before a three-judge court. In sum, the determination made by the Attorney General under § 5 is not reviewable and, when he failed within sixty (60) days after submission to interpose an objection to the South Carolina Senate reapportionment as provided in Act 1205, the State *342 of South Carolina was automatically authorized to enforce it; subject to the right of any proper party or parties to assail the constitutional validity of that legislation in an appropriate action. The plaintiffs are accordingly not entitled to an injunction against the enforcement of the legislation by the defendants at this time and the complaint is dismissed. AND IT IS SO ORDERED. NOTES [1] Senate Reapportionment Statute, Act 1205 of 1972. [2] Plaintiffs rely for authority to maintain the action, it would seem, on Allen v. State Board of Elections (1969) 393 U.S. 544, 561, 89 S.Ct. 817, 829, 22 L.Ed.2d 1: "* * * [A]n individual may bring a suit for declaratory judgment and injunctive relief, claiming that a state requirement is covered by § 5, but has not been subjected to the required federal scrutiny." [3] See, Note, Discriminatory Purpose, Charges and Dilution: Recent Judicial Interpretations of § 5 of the Voting Rights Act, 51 Notre Dame Lawyer 333 at 334, n. 11. [4] It is of interest that the same judge who decided Harper later in another case where a private party sought judicial review of the Attorney General's determination under § 5 dismissed, sua sponte the petition for review, stating that "a request for review of the Attorney General's findings may be made only by the State or political subdivision covered by the Act." (Italics Court's) Griffith v. United States (May 3, 1974) Cir. # 74-648, D.C. of District of Columbia. This same conclusion was approved in United Jewish Org. of Williamsburgh v. Wilson (2d Cir. 1975) 510 F.2d 512, 520, n. 15. Under this construction of the statute the action in Harper should have been dismissed at the outset. [5] § 701, et seq., 5 U.S.C. [6] See, Harper v. Levi (1975) 171 U.S.App.D.C. 321, 520 F.2d 53, 54-5. [7] 520 F.2d at 58. [8] There is some conflict in the decisions whether this claim of collateral estoppel by a stranger to the proceedings may be asserted offensively, as do the plaintiffs in this case, or is limited to defensive application. The Supreme Court noted the distinction between an offensive and defensive use of the plea in Blonder-Tongue v. University Foundation (1971) 402 U.S. 313, 330, 91 S.Ct. 1434, 28 L.Ed.2d 788. It did not, however, decide whether the plea was limited in application to defensive assertion. Our Circuit similarly avoided resolving the issue for this Circuit in North Carolina v. Chas. Pfizer & Co., supra. The leading case for use of collateral estoppel either offensively or defensively is B. R. DeWitt, Inc. v. Hall (1967) 19 N.Y.2d 141, 278 N. Y.S.2d 596, 225 N.E.2d 195, 31 A.L.R.3d 1035. The contrary view, limiting the plea to defensive use, is stated in Note, The Impacts of Defensive and Offensive Assertion of Collateral Estoppel by a Nonparty, 35 Geo. Washington L.Rev. 1010 (1967), in which the author states that "the judicial policies underlying collateral estoppel are generally subserved by allowing defensive assertion of the plea by a nonparty and frustrated by allowing offensive assertion, even though allowing the plea has the obvious effect of shortening the subsequent litigation in either case." A full list of relevant law review articles on the issue is set forth in 31 A.L.R.3d at 1050 and 1051. [9] City of Richmond v. United States (1975) 422 U.S. 358, p. 373, n. 6, 95 S.Ct. 2296, 45 L.Ed.2d 245; Gratiot State Bank v. Johnson (1919) 249 U.S. 246, 248-9, 39 S.Ct. 263, 63 L.Ed. 587; Thomas v. Consolidation Coal Co., supra, at 85; Humphreys v. Tann (6th Cir. 1973) 487 F.2d 666, 670-1, cert. denied 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 307 (1974); Scooper Dooper, Inc. v. Kraftco Corp. (3d Cir. 1974) 494 F.2d 840, 844; Bruszewski v. United States (3d Cir. 1950) 181 F.2d 419, 422, cert. denied 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). [10] To the same effect: Rumford Chem. Wks. v. Hygienic Chem. Co. (1909) 215 U.S. 156, 160, 30 S.Ct. 45, 54 L.Ed. 137; Council Brothers, Inc. v. Ray Burner Company (5th Cir. 1973) 473 F.2d 400. [11] See, also, Bryson v. Guarantee Reserve Life Insurance Company (8th Cir. 1975) 520 F.2d 563, 567. [12] See, for instance, Ritchie v. Landau (2d Cir. 1973) 475 F.2d 151, 155, n. 2 ("[o]ne who, though not a party of record, controls in furtherance of his own self interest the conduct of adjudicatory proceedings by or against another is bound by the result of the proceeding"); Drier v. Tarpon Oil Company (5th Cir. 1975) 522 F.2d 199, 200 ("[p]rivity can be found if one party `controlled the earlier lawsuit and its interests were represented by' the party to the first suit.") [13] See James Talcott, Inc. v. Allahabad Bank, Ltd. (5th Cir. 1971) 444 F.2d 451, 461-2, cert. denied 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1971); Brightheart v. McKay (1966) 136 U.S.App.D.C. 400, 420 F.2d 242, 245, n. 4. [14] King v. Kings County Lafayette Trust Co., supra, 323 F.Supp. at 648. [15] 389 U.S. 505-6, 88 S.Ct. 612. [16] 5 U.S.C. 704. [17] Abbott Laboratories v. Gardner (1967) 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 674. [18] See, Columbia System v. U. S. (1942) 316 U.S. 407, 424, 62 S.Ct. 1194, 1203, 86 L.Ed. 1563: "We need not stop to discuss here the great variety of administrative rulings which, unlike this one, are not reviewable — either because they do not adjudicate rights * *." [19] "The Attorney General [in making his determination] does not act as a court in approving or disapproving the state legislation." Allen v. State Board of Elections, supra, 393 U.S. at 549, 89 S.Ct. at 823. [20] See Common Cause v. Mitchell (C.A. No. 2348-71, D.D.C. March 30, 1972) where the Court dismissed an attempt to review the Attorney General's determination with this reasoning: "* * * 42 U.S.C. § 1973c does not require the Attorney General of the United States to make determinations that are subject to the adjudicative and judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 551, et seq., (1971)." [21] Griffith v. United States, supra. See, also, United Jewish Org. of Williamsburgh v. Wilson, supra, at 520, n. 15, approving the result in Griffith: "Indeed, a lawsuit was instituted directly in the District of Columbia District Court by some individual assemblymen from Kings County when New York's Attorney General decided not to sue on behalf of the State to overturn the April 1, 1974, order. This suit was summarily dismissed for lack of standing. Griffith v. United States, Civil No. 74-648 (D.D.C. May 3, 1974). This clearly seems proper under Allen v. State Board of Elections, 393 U.S. at 561, 89 S.Ct. 817." [22] 29 U.S.C. § 482. [23] 29 U.S.C. § 483. [24] Cf., Schonfeld v. Wirtz (S.D.N.Y.1966) 258 F.Supp. 705, 708. [25] 393 U.S. at 549, 89 S.Ct. at 823. [26] See, H.R.Rep. No. 439, 89th Cong., 1st Sess., 38 (1965), U.S.Code Cong. & Admin.News, p. 2437. [27] The statement of the Attorney General was: "* * * The effort [underlying § 5] is to prevent this constant slowing down process which occurs when States enact new laws that may clearly be in violation of the 15th amendment, but you have to go through the process of getting judicial determinations of that. It takes a long time. In the interval the purposes of the act are frustrated. "Now, there may be better ways of accomplishing this [than relying solely on the declaratory judgment procedure]. * * * There are * * *, a good many provisions of State law, that could be changed that would not in any way abridge or deny the [Fifteenth Amendment] right; * * * perhaps this could be improved by applying it [the declaratory judgment procedure] only to those laws which the Attorney General takes exception to within a given period of time. Perhaps that would remove some of the burden." Senate Hearings at p. 237. [28] The delays that would follow, if judicial review of the Attorney General's determination were found to exist, are well illustrated by the record in Harper, which involved no real factual review but concerned only an issue of law. The action was begun in the District Court in August, 1972, but the District Court, though the parties submitted the case on an agreed statement of facts, did not decide it until the middle of May, 1973, almost ten months later. The appeal from that decision was not heard until September, 1974, and the opinion of the Court of Appeals was not filed until the end of July, 1975. In other words, the right of the State to enforce its legislation, if § 5 is to be construed as plaintiffs contend and as Harper held, would have been delayed from May 2, 1972 to end of July, 1975, a period of over three years. It was this very delay, so graphically demonstrated by the record in this case which Congress, by providing for Attorney General clearance, sought to avoid. [29] 421 U.S. p. 571, 95 S.Ct. 1851. [30] See, State Board of Election Commissioners v. Evers (1972) 405 U.S. 1001 at 1003-4, 92 S.Ct. 1281, 1282-3, 31 L.Ed.2d 470 (Blackmun, J., concurring): "I am unable so to read § 5 of the Voting Rights Act of 1965, and I cannot subscribe to the District Court's reasoning. Section 5, it seems to me, plainly and clearly provides that if the proposal has been properly submitted to the Attorney General, as it was, `and the Attorney General has not interposed an objection within sixty days after such submission,' as he did not, the proposed statutory changes `may be enforced' without the court's proceeding in the District of Columbia and without resubmission to the Attorney General. Here the proposal was properly submitted to the Attorney General and he took no action by way of interposing an objection within the allowed 60 days. I do not see how the statute can be read or construed in any way other than to the effect that the conditions of its proviso were fulfilled and that the proposed new legislation was therefore enforceable, subject, of course, to the statute's recognized exception as to any contest on the merits." [31] It is interesting that the plaintiffs in the thoroughly briefed case of United Jewish Org. of Williamsburgh v. Wilson, supra, at 520, n. 16, did not argue the reviewability of the Attorney General's determination: "Appellants do not urge that a Voting Rights Act determination of the Attorney General is reviewable under the Administrative Procedure Act, probably because they concede it to be `committed to agency discretion by law.' 5 U.S.C. § 701(a)(2). Analogous determinations under § 407 of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, have been held not subject to judicial review. United States v. Greenwood Municipal Separate School Districts, 406 F.2d 1086 (5th Cir. 1969)." The Court might well have added a reference to the determination by the Attorney General authorized under § 2000a-5, 42 U.S.C., Civil Rights Act of 1964. That determination is very analogous to the determination by the Attorney General under § 5. Under § 2000a-5 the requirement that the Attorney General certify that he has reasonable cause to believe that the defendant has engaged in a pattern or practice of resistance to the full and equal enjoyment of any rights secured by that statute, preliminary to the institution of an action by the Attorney General under that Act, is even more final and definitive on the rights of the adverse party than the Attorney General's determination under § 5. That determination, however, has been uniformly held to be conclusive and not subject to judicial review, since the defendant has a right to defend in court the basic issue of the existence of a pattern of resistance on his part. United States v. Gray (D.R.I.1970) 315 F.Supp. 13, 24.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOE JOHNSON, Plaintiff, v. Civil Action No. 18-1715 (JEB) METROPOLITAN DIRECT PROPERTY & CASUALTY INSURANCE CO., et al., Defendants. MEMORANDUM OPINION If truth is in the eye of the beholder, this case appears to feature very different beholders. Plaintiff Joe Johnson alleges that a car driven by Defendant Mark Johnson (no apparent relation) struck his vehicle on a District freeway and that Defendant Johnson then assaulted him and fled with another passenger, Defendant Nneka Grimes. To add insult to injury, he alleges that these two then provided an entirely different account to their insurance company, Defendant Metropolitan Direct Property & Casualty Insurance Company (MetLife). In Defendants’ version, Plaintiff was the transgressor who twice struck their vehicle and himself fled the scene. Plaintiff thus brought this pro se action against those three Defendants, the owner of the car, and a MetLife claims adjuster, Christian Hayman, alleging myriad causes of action, some conceivable and others less so. MetLife and Hayman now move to dismiss four counts against them for failing to state a claim and separately seek a more definite statement on two others. As Plaintiff’s counts against these two Defendants are either facially deficient or in need of further clarification, the Court will grant both Motions. 1 I. Background Considering the facts alleged in the First Amended Complaint as true, as is required at this stage, the Court observes that the dispute here centers around an automobile accident on the Southeast Freeway here in Washington on November 20, 2017. Plaintiff alleges that he was rear-ended by Defendant Johnson, who then approached Plaintiff’s vehicle on foot, threatened to kill him, grabbed Plaintiff’s cell phone, punched him in the face, and then fled the scene. See Am. Compl. at 3. An arrest warrant, he believes, was subsequently issued for Defendant Johnson. Id. Defendants Nneka Grimes (a passenger in the car) and Patricia Grimes (the owner of the car who was not present at the accident), meanwhile, had a fundamentally contradictory story to recount. Plaintiff alleges that they falsely told MetLife that he was the one at fault, that his car had struck theirs on two occasions, and that he had tried unsuccessfully to flee. Id. at 4. MetLife and its employee, Christian Hayman, then “relied upon [these false reports] and republished them to third parties without conducting any investigation to determine [their] truth and accuracy.” Id. Plaintiff never provides the upshot of these conflicting narratives, who was forced to pay whom for the incident, or if anyone ended up being criminally charged. He nonetheless asserts ten causes of action against myriad Defendants: Negligence against Johnson (Count I), Assault/Battery and Intentional Infliction of Emotional Distress against Johnson (II), Defamation against Patricia and Nneka Grimes (III), Libel against the Grimeses (IV), Republication of Defamation against MetLife and Hayman (V), Republication of Libel against MetLife and Hayman (VI), Intentional Infliction of Emotional Distress against MetLife, Hayman, and the Grimeses (VII), Negligent Infliction of Emotional Distress against MetLife and Hayman (VIII), Negligent Hiring, Training & Supervision against MetLife (IX), and Civil Conspiracy against all 2 Defendants (X). Id. at 5-13. He asserts that he has “suffered severe bodily injuries, loss of sleep, headaches, severe mental pain, humiliation, embarrassment, [and] depression” as a result. Id., ¶ 21. Although Plaintiff is proceeding pro se, he is either an attorney himself or has likely received substantial assistance from an attorney, as his pleadings are professionally presented, even if a number of claims are evanescent. The Court thus affords him some leeway as a pro se party but need not bend over backwards to indulge his pleadings. MetLife and Hayman have now filed a Motion to Dismiss as to Counts VII-X and a separate Motion for More Definite Statement as to Counts V-VI. II. Legal Standard In evaluating Defendants’ Motion to Dismiss, the Court “must treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C. Cir. 2005). The Court need not accept as true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). For 3 a plaintiff to survive a 12(b)(6) motion, the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). Rule 12(e) permits a defendant to move for a more definite statement if “a pleading . . . is so vague or ambiguous that the party cannot reasonably prepare a response.” “[W]hen a defendant is unclear about the meaning of a particular allegation in the complaint, the proper course of action is not to move to dismiss but to move for a more definite statement.” Hilska v. Jones, 217 F.R.D. 16, 21 (D.D.C. 2003) (quoting Am. Nurses’ Ass’n v. Illinois, 783 F.2d 716, 725 (7th Cir. 1986)). “Normally, of course, the basis for requiring a more definite statement under Rule 12(e) is unintelligibility, not mere lack of detail.” Burnett v. Al Baraka Inv. and Dev. Corp., 274 F. Supp. 2d 86, 110 (D.D.C. 2003) (internal quotation marks and citations omitted). Indeed, “a plaintiff need not allege all the facts necessary to prove its claim so long as [he] provides enough factual information to make clear the substance of that claim.” Wilson v. Gov’t of D.C., 269 F.R.D. 8, 12 (D.D.C. 2010) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1086 (D.C. Cir. 1998)). III. Analysis The Court begins with Defendants’ Motion for More Definite Statement as to Counts V- VI and then addresses their Motion to Dismiss as to Counts VII-X. A. Motion for More Definite Statement Counts V (Republication of Defamation) and VI (Republication of Libel) are essentially identical. The former alleges that “[o]n or around January 30, 2018, Defendant, MetLife, by and through its agent, employee and servant, Defendant, Hayman, republished unprivileged false statements of fact in the District of Columbia to third parties, both known and unknown, to the 4 effect” that Plaintiff was at fault in the accident. See Am. Compl., ¶ 35. “Defendants either knew that the statements were false or conducted no investigation concerning the truth or veracity of the defamatory statements with the sole purpose of impugning Plaintiff.” Id., ¶ 38. The latter count is more cursory, simply incorporating the former and repeating that Defendants “republished or caused to be republished unprivileged false statements of fact in the District of Columbia . . . either negligently or knowing full well that they were false . . . in bad faith for the sole purpose of injuring the Plaintiff.” Id., ¶¶ 42-44. In seeking a more definite statement, Defendants correctly point out that such allegations are hardly specific enough for a defamation claim. To begin, there is no allegation of the form or forum in which these statements were published; we know only the general content of the statement. Equally absent is any identification of the listener beyond “third parties, both known and unknown.” Id., ¶ 35. These two signal omissions are sufficient to warrant amendment. As this Court has explained, “Defamation under D.C. law requires a plaintiff to show a defamatory statement, publication to a third party, negligence, and either that the statement is actionable as a matter of law or that publication caused the plaintiff special harm.” Kenley v. Dist. of Columbia, 83 F. Supp. 3d 20, 48 (D.D.C. 2015) (internal quotation marks and citation omitted). Publication, moreover “requires making a statement to at least one other person.” Westfahl v. Dist. of Columbia, 75 F. Supp. 3d 365, 375 (D.D.C. 2014) (citing Charlton v. Mond, 987 A.2d 436, 438 n.4 (D.C. 2010); Von Kahl v. Bureau of Nat'l Affairs, Inc., 934 F. Supp. 2d 204, 218– 19 (D.D.C. 2013)). If Plaintiff decides to amend his Complaint, he must therefore specifically allege the form of the statement – e.g., email, letter, conversation – and he must state at least generally to whom the statement was published. Finally, the Court does not understand his distinction between 5 “Republication of Defamation” and “Republication of Libel.” Libel is a written form of defamation, and slander is an oral form, but there is no basis to assert claims for both libel and defamation. If Plaintiff wishes to assert two separate counts, he must explain the difference. B. Motion to Dismiss As the Motion to Dismiss covers four separate counts, the Court treats them sequentially. 1. Intentional Infliction of Emotional Distress (Count VII) Johnson’s allegations relating to his IIED count are rather strained. He claims that Defendants “knew . . . [the other Defendants’] report was false or conducted no investigation concerning the truth or veracity of the report.” Am. Compl., ¶ 49. They thus “intentionally caused injury to the Plaintiff by making reports that they knew were false in an effort to have the Plaintiff indicted and punished for fleeing the scene of an accident.” Id., ¶ 50. There are no allegations about to whom Defendants sent the report or what happened to Plaintiff thereafter – except for this aside about an indictment, which does not appear in the statement of facts. At bottom, then, the claim is that Defendants were negligent in accepting other Defendants’ version of the accident. That does not even approach the standard for IIED. “The elements of IIED are (1) extreme or outrageous conduct [that] (2) intentionally or recklessly causes (3) severe emotional distress to another.” Nagy v. Corrections Corp. of Am., 79 F. Supp. 3d 114, 120 (D.D.C. 2015) (internal quotation marks and citation omitted). “The conduct must be 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.” Id. (internal quotation marks and citation omitted); see Amobi v. Dist. of Columbia Dep't of Corrections, 755 F.3d 980, 995 (D.C. Cir. 2014) (defining such conduct as going “beyond all possible bounds of decency, and to be regarded as atrocious and utterly 6 intolerable in a civilized community”) (citation omitted). It is pellucid that Johnson has not cleared the bar. Plaintiff nonetheless contends that IIED may exist where a party files a false police report. See Pl. MTD Opp. at 4. Even if such a principle extended to insurance reports, these Defendants engaged in no such action; on the contrary, they merely accepted a report that Johnson contends was not true. As there is a world of difference between these two acts, this count will be dismissed. 2. Negligent Infliction of Emotional Distress (Count VIII) To prevail on an NIED claim, conversely, Plaintiff “must prove (1) that [Defendant] acted negligently, (2) that [he] suffered either a physical impact or [was] within the ‘zone of danger’ of the [Defendants’] actions, and (3) that [he] suffered emotional distress that was ‘serious and verifiable.’” Wright v. United States, 963 F. Supp. 7, 18 (D.D.C. 1997) (quoting Jones v. Howard University, Inc., 589 A.2d 419, 424 (D.C. 1991)); see also Asare v. LM-DC Hotel, LLC, 62 F. Supp. 3d 30, 34–35 (D.D.C. 2014) (“Negligent infliction, first, is a cause of action based on physical harm, and although ‘[a] plaintiff need not show actual physical impact’ to prove that a defendant negligently caused her distress, ‘she must show that she actually feared for her [physical] safety as a result of [the defendant's] conduct.’”) (quoting Hollis v. Rosa Mexicano DC, LLC, 582 F. Supp. 2d 22, 27 (D.D.C. 2008)). Plaintiff here makes no allegation that he suffered any kind of direct physical injury from these Defendants’ actions, even though he might have been struck by other Defendants. Nor is there any real allegation that he stood within any zone of danger of these Defendants’ actions. Instead, he argues that an exception to the injury/danger-zone requirement exists when there is a “special relationship” between the parties. See Pl. MTD Opp. at 5 (citing Hedgepeth v. Whitman 7 Walker Clinic, 22 A.3d 789, 810-11 (D.C. 2011) (en banc)). He is correct inasmuch as “a plaintiff may recover for negligent infliction of emotional distress if the plaintiff can show that (1) the defendant has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff's emotional well-being, (2) there is an especially likely risk that the defendant's negligence would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff.” Hedgpeth, 22 A.3d at 810-11. Hedgepeth involved an HIV misdiagnosis by a medical clinic, and the D.C.C.A. found that “a doctor’s breach of duty in misdiagnosing a patient with HIV-infection would result in serious emotional harm.” Id. at 820. No such special relationship can be said to exist between an individual and another person’s automobile insurer. Indeed, Johnson never even argues the point, merely positing that Defendant must rebut his theory. The NIED claim thus founders as a matter of law. 3. Negligent Hiring, Supervision & Training (Count IX) Next up is Johnson’s cause of action for MetLife’s negligent hiring, supervision, and training of Hayman. To state such a claim, a “plaintiff must allege facts showing that the employer knew or should have known that the employee was incompetent, and that the employer, despite this actual or constructive knowledge, [hired or] failed to adequately supervise the employee.” Stevens v. Sodexo, Inc., 846 F. Supp. 2d 119, 128 (D.D.C. 2012); see also Thorp v. Dist. of Columbia, 319 F. Supp. 3d 1, 21 (D.D.C. 2018) (“To prevail on either claim, a plaintiff must show an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee.”) (internal citation and 8 quotation marks omitted); Rawlings v. Dist. of Columbia, 820 F. Supp. 2d 92, 115 (D.D.C. 2011) (“Plaintiff must show . . . that [Defendant] engaged in behavior before the [incident here] that should have put his employer on notice that he required additional training.”). Once again, Johnson comes up short given that he has alleged no facts regarding Hayman’s behavior that should have put the company on notice that he should not have been hired or should have been supervised more closely or trained more extensively. Instead, Plaintiff appears to believe that any negligent act by an employee can give rise to this cause of action, when what is actually required is prior notice. See Pl. MTD Opp. at 8. This count also falls by the wayside. 4. Civil Conspiracy In his final cause of action – for civil conspiracy – Johnson alleges that “Defendants and John Does 1 and 2 entered into an agreement to commit tortious acts including defamation, libel and intentional infliction of emotional distress against the Plaintiff.” Am. Compl., ¶ 61. In the District of Columbia, “[t]o establish a prima facie case of civil conspiracy, [a plaintiff] ha[s] to prove (1) an agreement between two or more persons (2) to participate in an unlawful act, and (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement pursuant to, and in furtherance of, the common scheme.” McMullen v. Synchrony Bank, 164 F. Supp. 3d 77, 96-97 (D.D.C. 2016) (citations and internal quotations marks omitted). It is entirely unclear why, with five current Defendants, Plaintiff feels the need to add more in the guise of Does. Who these Does are, what position(s) they hold, and what they could have done are not illuminated in the Complaint. The broad allegation that all Defendants plus two unknown individuals somehow entered into this agreement to harm Plaintiff does not sufficiently put Defendants on notice of who actually agreed to what. The Court, however, will 9 give Plaintiff another opportunity to state this claim with more specificity to see if he can sufficiently allege an actual conspiracy. IV. Conclusion The Court, accordingly, will grant Defendants’ Motion for More Definite Statement and require Plaintiff to file an Amended Complaint if he wishes to proceed with a defamation claim against these Defendants. In addition, it will grant their Motion to Dismiss, but give leave for Johnson to amend his Civil Conspiracy claim. A separate Order so stating will issue this day. . /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 15, 2018 10 

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 24, 2007 Charles R. Fulbruge III Clerk No. 06-40862 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RAUL CARBAJAL-ADAME; VICTOR ARCOS-BENITEZ Defendants-Appellants. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-701-2 -------------------- Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges. PER CURIAM:* A jury convicted Raul Carbajal-Adame (Carbajal) and Victor Arcos-Benitez (Arcos) of conspiracy to possess with intent to distribute cocaine and the district court sentenced each defendant to a 121-month term of imprisonment. Carbajal argues on appeal that the evidence is insufficient to support his conviction, while Arcos argues that the district court erred by refusing to accept Arcos’s guilty plea. Although Carbajal moved for a judgment of acquittal at the close of the Government’s case-in-chief and again at the close of * 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. 06-40862 -2- the defense evidence, he did not renew the motion at the close of the Government’s rebuttal evidence. Accordingly, we review the evidence only to determine whether there has been a manifest miscarriage of justice. United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002). Because the trial evidence supports the jury’s determination that Carbajal conspired to possess cocaine with the intent to distribute it, we affirm his conviction. Because Arcos denied any involvement with illegal drugs at his rearraignment hearing, the district court did not err by refusing to accept his guilty plea. United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999); FED. R. CRIM. P. 11(b)(3). U.S.S.G. § 3E1.1(a)(1). Furthermore, Arcos has failed to show that acceptance of his guilty plea after trial commenced would have made him eligible for a reduction in offense level under the advisory Sentencing Guidelines. See U.S.S.G. §§ 3E1.1(a)(1), 5C1.2(a); United States v. Sanchez-Ruedas, 452 F.3d 409, 414 (5th Cir. 2006). Thus, any error resulting from the court’s refusal to allow Arcos to enter a guilty plea after the jury was empaneled was harmless. See FED. R. CRIM. P. 52(a). AFFIRMED. 

618 S.W.2d 874 (1981) GILLRING OIL COMPANY, Appellant, v. Dan A. HUGHES, et al., Appellees. No. 8533. Court of Civil Appeals of Texas, Beaumont. June 11, 1981. Rehearing Denied July 29, 1981. J. M. Burnett, Corpus Christi, for appellant. Thomas W. Reavley, Austin, Tex., for appellees. CLAYTON, Justice. Appellant, Gillring Oil Company, filed this suit against appellees, seeking a recovery of certain royalty and working interests and a declaration of its rights to such interests in the future in and to the gas well on a gas producing unit known as the Wanda Wolter Unit No. 1 in Nueces County. In a non-jury trial, a take-nothing judgment was entered from which this appeal has been perfected. Appellant brings forward fifteen points of error and has grouped the first eleven points together for its argument. Under these points appellant agrees that its right to recover in this action depends upon the interpretation and legal effect of certain *875 instruments executed by the parties with reference to royalty interests and working interests of the production of the gas well in question. All the parties to this action are joint working interest owners in a well known as the Wolter No. 1, located in Nueces County. Appellant brought this action against all the remaining working interest owners seeking a judgment that it is entitled to a larger percentage of income from the well than the share that appellees have determined to be appellant's share. On July 19, 1976, appellant and appellees entered into an operating agreement describing 401 acres of land for the purpose of exploring and developing all or a portion of such land for oil and gas purposes. In forming this 401 acre operating unit, each party to this agreement contributed certain acreage to the "Unit Area" defined in the agreement. Certain exhibits to the agreement state that appellant contributed an undivided one-fourth mineral interest in a 100 acre tract. Exhibits also show the other parties to the agreement contributed oil and gas leasehold estates. Under the operating agreement, appellant owned a one-eighth royalty in and to its ownership contribution; the remaining seven-eighths of the total ownership constituted a working interest. In addition, the agreement provides that each party to the agreement shall retain as an overriding royalty any ownership it has in the property it contributes in excess of a 75 percent net revenue interest. This operating agreement sets forth the respective percentage or fractional interest of all parties to this agreement. The operating agreement provides: "[A]ll costs and liabilities incurred in operations under this contract shall be borne and paid, and all equipment and material acquired in operations on the Unit Area shall be owned, by the parties as their interests are given in Exhibit `A.' All production of oil and gas from the Unit Area, subject to the payment of lessor's royalties, shall also be owned by the parties in the same manner." Appellant's interest is stated as being 6.23 percent, which was computed by dividing appellant's interest contribution to the Unit Area (¼ of 100 acres, or 25 acres) by the total acreage in the Unit Area (401 acres). After the Wanda Wolter Well No. 1 was drilled and completed, the parties to the operating agreement entered into a "Designation of Gas Unit" which defined a 320 acre producing unit around the well. The Gas Unit Designation provides that the parties declare a 320 acre unit designated as the Hughes-Wolter Gas Unit No. 1 and they "hereby pool and combine all the gas and gaseous substances, including gas condensate, together with all minerals and royalty rights hereunder." It is undisputed that appellant's future working interest from the production of the well would be 7.8125 percent of production if determined solely by the provisions of the Gas Unit Designation instrument. If determined by the provisions of the operating agreement and the Gas Unit Designation instruments, then its revenue interest would be 6.6256 percent of production. The trial court found appellant was entitled to receive 6.6256 percent of production which was the percentage appellant has been receiving. It is contended by appellant that the operating agreement, which states its working interest in the production of the well is based upon a 401 acre unit, has been amended by the Gas Unit Designation and that it is now entitled to receive a working interest of 7.8125 percent of production which is based upon a 320 acre unit. Appellant's working interest contribution under the operating agreement entitled it to a working interest of 6.23 percent in the 401 acre unit. This agreement was in effect a unitization of the tract conveying an interest in realty. Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955), with income to be paid on the basis of each party's acreage contribution to the whole unit. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 476 (1942); Montgomery v. Rittersbacher, 424 S.W.2d 210, 213 (Tex.1968). Income is to be paid to each *876 party according to his ownership in the entire tract. Rankin v. Naftalis, 557 S.W.2d 940, 942 (Tex.1977). Appellant owned all the royalty interest in 25 net acres (undivided ¼ of 100 acres), all of which was included within the 320 acre unit as described and contained in the Gas Unit Designation. According to the operating agreement that royalty interest was entitled to share in the total production from the 320 acre unit in proportion to its percentage of total surface acres in the unit. Therefore, appellant's royalty share of the income from the well would be equal to 25/320 or .078125. Since the royalty portion of production from the well owned by appellant amounted to 25 percent, appellant's net revenue interest attributable to its royalty interest ownership would equal .078125 × .25 or .019531. As to working interest, however, appellant did not own 25 acres in the 320 acre unit at the time it signed the Gas Unit Designation. By executing the operating agreement, appellant had relinquished 75 percent of its ownership in the 25 acres in exchange for an undivided 6.23 percent working interest in the entire 401 acre Operating Unit. Therefore, it had an undivided 6.23 percent interest in each acre within the 401 acre unit, including the 320 acres designated as the Hughes-Wolter Gas Unit No. 1. Since appellant owned and contributed only 6.23 percent of the working interest acres to the 320 acre unit, it only became entitled to 6.23 percent of the income attributable to the working interest. Multiplying this share of working interest (.0623) by the total portion of revenue attributable to the working interest (.75) yields a net revenue interest attributable to appellant's working interest of .046725. Adding this figure to the net revenue interest attributable to appellant's royalty ownership (.019531) gives a total appellant interest of .066256 or 6.6256 percent, which is the exact amount which appellant has been receiving. Appellant contends the operating agreement was amended so as to change its working interest from 25/401 to 25/320 by a letter written by its president to one of the parties to the agreement with copies of such letter being sent to all other parties. This letter, written July 22, 1976, states: "It is our understanding that the form of oil and gas lease attached as Exhibit `B' is to provide for 320-acre pooling rather than 640 acres, and it is also our understanding that all the parties to the Operating Agreement ... will jointly agree on what acres will be pooled into a producing unit around a producing well." Appellant contends this letter was "a contemporaneous writing to and is expressly part of the operating agreement." We do not agree. The agreement was dated July 19, 1976, and was effective as of the date on its face, not the date of the last signature. Willson v. Superior Oil Co., 274 S.W.2d 947, 951 (Tex.Civ.App.—Texarkana 1954, writ ref'd n. r. e.). The letter was written three days subsequent to the effective date of the instrument and, therefore, could not be considered as a contemporaneous writing to be construed with and made a part of and amending the operating agreement. Moreover, the language of the letter itself does not disclose an intent to amend the operating agreement. If the letter was intended as a proposed amendment, the language used should have indicated a clear intent to amend. Paine v. Moore, 464 S.W.2d 477 (Tex.Civ.App.—Tyler 1971, no writ). This letter did not amend or cancel the operating agreement. We have carefully considered all other points of error urged by appellant, and finding them to be without merit, they are overruled. The judgment of the trial court is affirmed. AFFIRMED.

USCA1 Opinion June 27, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-2293 MARTA LEYLA HERNANDEZ PINEDA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ____________________ ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS ____________________ Before Selya, Cyr and Boudin, Circuit Judges. ______________ ____________________ Raymond Rivera on brief for petitioner. ______________ Frank W. Hunger, Assistant Attorney General, Mark C. Walters, ________________ _________________ Assistant Director, Office of Immigration Litigation, and Kristen A. __________ Giuffreda, Attorney, Civil Division, U.S. Department of Justice, _________ Office of Immigration Litigation, on brief for respondent. ____________________ ____________________ Per Curiam. Petitioner Marta Leyla Hernandez ___________ Pineda, a citizen of Nicaragua, has filed a petition for review of an order of the Board of Immigration Appeals (the Board) denying her motions to reopen and reconsider. She sought to have the Board reconsider its final decision, dated July 6, 1993, dismissing her appeal from the order of the immigration judge which denied her applications for suspension of deportation and asylum. The Board dismissed the appeal as untimely. I. _ Petitioner illegally entered the United States in July 1984. The Immigration and Naturalization Service (INS) issued an order to show cause on April 26, 1991, based on petitioner's failure to present herself for inspection upon entering this country. See 8 U.S.C. 1251(a)(1)(B). A ___ hearing was held before an immigration judge. Petitioner was represented by counsel at this time. She conceded deportability and informed the immigration judge that she would apply for asylum, see 8 U.S.C. 1158, and suspension, ___ see 8 U.S.C. 1254. ___ Accordingly, a hearing on these applications was held on January 14, 1992. Although petitioner had requested, and received, a postponement of the hearing on the ground that she was seeking new counsel, she appeared pro se at the hearing. In an oral decision, the immigration judge denied both applications. Petitioner then expressed her desire to appeal this decision to the Board. At this point, the immigration judge stated: And if you decide to appeal, the appeal deadline is January 24, '92. Now ___ I'm handing you the appeal forms which _________________________________________ must be filed by the deadline date. And ___________________________________ a form that you were given before, a 618 form that explains your appeal rights. Now, if you want to appeal, the fee for an appeal has to be filed here at this office. And then the appeal form has to be mailed to my office in Arlington, Virginia. And I'll give you the address. We'll find the address. I'm going to give you a summary of my decision and order and my address is listed at the top of that form. And I'm going to add our phone number there, too. Now if you hire a lawyer to help you with the appeal, the lawyer needs to fill out the gold appearance form. Administrative Record, at 123-24 (emphasis added). On January 22, 1992, petitioner asked for an extension of time to file her appeal. She was notified of the denial of her request on January 24th. She then used next-day mail to send her appeal. However, her documents were returned to her on January 27th because she had not used the proper appeal forms. By this time, petitioner had retained counsel. In March 1992, he filed an appeal using the correct forms, but had not made out the money order for the fee to the right entity. The appeal was perfected in April. After receiving several extensions of time, petitioner filed her brief in support of her appeal in October 1992. -3- On July 6, 1993, the Board issued its order dismissing petitioner's appeal as untimely. The motions for reopening and reconsideration ensued. Petitioner argued that the Board had made an error in its decision. Specifically, petitioner claimed that, at the hearing, she had not been informed that she was required to use specific forms to file an appeal. She acknowledged that she had been told of the January 24, 1992 deadline and asserted that by express- mailing her appeal on the 24th, she had appealed by the deadline. She also argued that she had been misinformed by the local INS office concerning to whom the money order should be made payable. Further, she pointed out that when her appeal was returned to her on January 27th, she was not told by anyone that her appeal had not been perfected according to the regulations. She next asserted that to reject her appeal which had been "timely appealed but untimely filed," violated due process. That is, she went on, she should not be penalized when she had "fully complied" with the instructions given to her. Finally, petitioner maintained that the immigration judge violated due process when she failed to tell petitioner about the correct forms even though the immigration judge knew that petitioner was proceeding without counsel. The Board, in a per curiam order, denied the motion. As for the request for reconsideration, it re- -4- examined its decision in light of petitioner's arguments. It first pointed out that the appeal was mailed, using next-day delivery, on the day it was due. Next, the Board stated that the record revealed that the immigration judge had, in fact, handed the proper application forms to petitioner. Further, the immigration judge had given petitioner "explicit instructions" concerning when and where the form should be filed and where the fee should be paid. Next, the Board considered the request for reopening. It rejected it out of hand, though, because petitioner had failed to submit "new, previously unavailable evidence in support of her motion. . . ." Administrative Record, at 2. II. __ In determining motions to reopen and reconsider, the Board is exercising "discretionary authority." 1 C. Gordon & S. Mailman, Immigration Law and Procedure ________________________________ 305[7][a], at 3-68 (rev. ed. 1993) (footnote omitted). "In reviewing a discretionary decision of the Board, we determine only whether the decision was arbitrary, capricious, or an abuse of discretion." Martinez v. I.N.S., 970 F.2d 973, 974 ________ ______ (1st Cir. 1992); LeBlanc v. I.N.S., 715 F.2d 685, 693 (1st _______ ______ Cir. 1983) (court will uphold discretionary action of the Board unless it had no rational explanation, did not follow established policies, or was based on impermissible grounds such as race discrimination). As for the Board's findings of -5- fact, we review them under the "substantial evidence standard." Martinez, 970 F.2d at 974. As set forth in 8 ________ U.S.C. 1105a(a)(4), "findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive. . . . " A. Motion to Reconsider ____________________ The Board found, as matters of fact, that petitioner had been given the appeal forms by the immigration judge and had been told where and when to file them. There is no question that the record supports these findings. The immigration judge announced, at the end of the hearing, that she was handing the forms to petitioner. She then explained that the fee was to be paid at the immigration office and the appeal forms sent to the immigration judge's office in Virginia. In light of such clear record evidence, the Board had the authority to reject petitioner's contention that she never received the forms. Further, the Board's finding that the appeal was filed late also is supported by substantial evidence. Petitioner argues that January 24th was not the day the appeal was due. Rather, she maintains that she had 13 days (rather than 10) in which to appeal. Thus, the return, on January 27th, of petitioner's appeal materials indicates that her appeal must have arrived within the 13-day period. Petitioner misreads the regulation; the longer period in -6- which to file an appeal applies when the decision of the ________________ immigration judge is mailed, not when the appeal is mailed. _________________ ______ See 8 C.F.R. 3.38(b); Da Cruz v. I.N.S., 4 F.3d 721, 722 ___ ________ ______ (9th Cir. 1993) (where decision of immigration judge was mailed, petitioner had 13 days to file an appeal). Based on the foregoing, there is no question that the Board did not abuse its discretion in denying petitioner's motion to reconsider. The facts establish that her appeal was late. Where an appeal is not taken within the 10-day period, the right to appeal is lost. Da Cruz, 4 F.3d ________ at 722; Matter of G.Z., 5 I & N Dec. 295 (1953); 1 _______________ Immigration Law and Procedure, 3.05[4][a], at 3-54. _____________________________ B. The Motion to Reopen ____________________ Motions to reopen are disfavored and a petitioner bears a heavy burden in showing entitlement to this relief. I.N.S. v. Abudu, 485 U.S. 94, 107, 110 (1988). Given this, ______ _____ "the Board is to be accorded a great deal of leeway in exercising its authority." LeBlanc, 715 F.2d at 689. Under _______ 8 C.F.R. 3.2, the Board is prohibited from reopening a proceeding "unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. . . ." Similarly, 8 C.F.R. 3.8(a) states that "[m]otions to reopen shall state the new facts to be proved at the reopened hearing . . . . " -7- Petitioner failed to meet the basic requirement that she present "new facts" that previously were "not available." First, petitioner knew that the appeal was to be filed by January 24th. Second, the "fact" that the notice of appeal was late was established as early as January 24, 1992 when petitioner mailed her appeal papers on the day the appeal was due. Her argument that she did not know that her appeal was late because the INS continued to process her appeal after January 24th is not a "fact." The immigration judge had made clear when to file an appeal and her lack of authority to grant any extensions of time. As a result, we find that the Board did not abuse its discretion in refusing to reopen the proceeding to allow petitioner's late-filed appeal to proceed. See Da Cruz, 4 F.3d at 722 (Board may not ___ _______ reopen a case "solely to allow a late appeal"); Matter of D., ____________ 5 I & N Dec 520, 521 (1953) (same). C. Due Process Violation _____________________ Petitioner maintains that by not informing her that her appeal was late and by continuing to process the appeal during the ensuing year and a half, the Board violated her procedural due process rights. She characterizes the Board as having made an "abrupt change" when it dismissed her appeal as late on July 6, 1993. This change, she goes on, deprived her of the chance to "effectively" present her case. -8- To establish a due process violation, petitioner must "demonstrate prejudice which implicates the fundamental fairness of the proceeding." See Michelson v. I.N.S., 897 ___ _________ ______ F.2d 465, 468 (10th Cir. 1990). Petitioner's argument is that by permitting her appeal to proceed, the Board's action in "summarily" dismissing it was so arbitrary as to constitute constitutional error. We do not agree. The cases petitioner cites in support of her argument involved challenges to the failure of the INS to follow its own rules and regulations, see Montilla v. I.N.S., 926 F.2d 162, 166 ___ ________ ______ (2d Cir. 1991), challenges to specific regulations, see ___ Toquero v. I.N.S., 956 F.2d 193, 196 (9th Cir. 1992), or _______ ______ challenges to the sufficiency of the procedures used in a specific hearing, see Landon v. Plasencia, 459 U.S. 21, 36-37 ___ ______ _________ (1982). In contrast, petitioner complains here that in following the applicable regulation concerning the filing of _________ timely appeals, the Board violated her due process rights. Although it would have been better if the Board had notified petitioner earlier in the appeals process that her appeal was late, it was not constitutional error to deny the motions to reopen and reconsider. III. ___ Because this petition presents no substantial question, we summarily affirm the decision of the Board. See ___ -9- 1st Cir. Rule 27.1. -10-

835 So.2d 749 (2002) Chuck SMITH v. J.E. MERIT CONSTRUCTORS, INC. No. 2001 CA 2824. Court of Appeal of Louisiana, First Circuit. November 8, 2002. *751 Michael L. Hyman, Baton Rouge, Counsel for Plaintiff/Appellant Chuck Smith. Kirk L. Landry, Baton Rouge, Counsel for Defendant/Appellee J.E. Merit and ESIS. Before: FOIL, FOGG, and KLINE,[1] JJ. KLINE, J. This is an appeal from a judgment of the Office of Workers' Compensation ("OWC"), finding in favor of defendant, J.E. Merit Constructors, denying claimant Chuck Smith's claim for indemnity benefits, penalties, and attorney fees. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY Following a May 2, 2001 hearing, the OWC judge summarized the case in its oral reasons for judgment as follows: This is Chuck Smith versus J.E. Merit Constructors, 99-09579. This matter came for trial on May 2nd, 2001. Judgment was rendered on May 21st, 2001, and the Court is now prepared to render reasons for judgment. Chuck Smith was employed by J.E. Merit Constructors in June 1998. He was injured while in the course and scope of his employment. The employer paid medical bills and expenses related to the accident. The claimant received workers' compensation benefits or worked for J.E. Merit[,] until October of [1999]. The claimant filed [a] petition seeking payment of additional indemnity benefits and penalties and attorneys fees for untimely payment of medical bills. The parties stipulated that the claimant was injured in the course and scope of his employment and [have] stipulated that claimant's average weekly wage was $609.50. As far as the claim for the unpaid medical bills was concerned, the claimant testified that he received a bill concerning a test that was run before his surgery. Claimant didn't know if the bill was unpaid at the time of trial. He couldn't testify if it had been forwarded to the insurance adjustor, and he did testify that at the time of the trial to his knowledge all of the medical bills and expenses had been paid, and he testified further that he was no longer receiving the bills. The medical bill was admitted into evidence, but it failed to show what it was for, when the tests were run and what the relationship was to the injury. Claimant had no proof of when the bill was actually paid, and so I find that there's no proof that the bill was not paid in a timely fashion. And, therefore, penalties and [attorney's] fees are not owed. The larger question was whether indemnity benefits are owed. The claimant testified that he was currently working and that he was earning $17 per hour at this time. He testified that he was only able to work 20 to 25 hours per week because of his injuries. Callie Sparks, his present employer testified that the claimant currently works for him and has been working for him for many months. Mr. Sparks also testified that claimant was not able to work a 40-hour week, that the evidence that was submitted from Mr. Sparks' company shows that Mr. Smith worked a 40-hour week in the past and Mr. Sparks testified that he had work[ed] 40 hours or *752 more for Mr. Sparks on more than one occasion. Mr. Sparks also testified that part of the reason why he didn't work 40 hours a week at this time was because of the lack of work, not because of the injury. There's also no medical in the file that shows that Mr. Smith is unable to work 40 hours a week. Further proof of his ability to work a 40-hour week is the fact that he had gone back to work for J.E. Merit, and he had worked with them at two different plants after his injury. He had been accommodated for his injury. He had worked for J.E. Merit for seven months after his injury, and he had worked a 40-hour week and was paid his wage. He had surgery on his knee in March of 1999. He was released to return to work in October of 1999. He was offered a light-duty position by Tony Lambert of J.E. Merit in October of 1999 at the Motiva Plant. He reported to work, did the paperwork and then quit, because in his opinion he was unable to do the work, yet his job duties had not even been assigned to him at that time. He did testify that they had accommodated him before his surgery, and he didn't state why he didn't think he would be able to do a job when they had accommodated him before and they hadn't even told him what he was expected to do when he quit. Taking all of the evidence that's been submitted into evidence, I find that the claimant has failed to prove [by] a preponderance of the evidence that he is permanently or temporarily totally disabled. He's also failed to prove that he cannot earn 90 percent of his pre-injury wages. Most significantly, the claimant was offered a position at J.E. Merit that would have paid him his full salary. He reported to that job, and then he quit. But more significant than just the offering of the job is the fact that the testimony showed that J.E. Merit had offered him a position where he was accommodated because of his injury before his surgery, he had worked there for seven months and that this was basically what J.E. Merit was doing was they were offering him a position where they would accommodate him as much as possible. He never tried. In addition to the fact that he was offered a position by J.E. Merit, his own testimony shows that he is capable of performing work earning $17 per hour and that he is capable of working 40 hours per week as evidenced by his current employer's pay records. When you computate [sic] $17 an hour by 40 hours per week, it gives him a current wage of $680 per week, which is 90 percent of his pre-accident weekly wage. There is no medical evidence showing that Mr. Smith is restricted from working a 40-hour week; and, therefore, I don't believe that he has proved that he is owed any indemnity benefits. Therefore, the claim for indemnity benefits is denied. Thereafter, on May 21, 2001, the OWC judge signed a judgment in favor of defendant, J.E. Merit Constructors ("J.E.Merit"), denying Mr. Smith's claim for penalties and attorney fees and his claim for indemnity benefits. Mr. Smith appeals the OWC's judgment, asserting the following assignments of error: 1. The [workers'] compensation [j]udge erred in finding that Appellant had failed to prove by a preponderance of the evidence that he cannot earn 90% of his pre-injury wages. *753 2. The [workers'] compensation judge erred in holding that Appellee had carried its required burden of proof, in finding that the job offered to Appellant was appropriate to Appellant's physical limitations. 3. The [workers'] compensation judge erred in giving credibility to the signed job analysis form that was completed by the doctor after Appellant had tried the job, without success. [Emphasis original.] LAW AND DISCUSSION All of the assignments of error asserted by Mr. Smith raise factual issues. Mr. Smith argues that the proper standard of review in a workers' compensation case is not the manifest error-clearly wrong standard of review, but rather the substantial evidence test as set out in the Louisiana Administrative Procedure Act, La. R.S. 49:950 et seq. The Louisiana Supreme Court determined that the same standard of review applicable to factual findings of district courts is also applicable to factual findings of a workers' compensation judge. Jurisprudence clearly establishes that in workers' compensation cases, the appropriate standard of review to be applied by appellate courts is the "manifest error-clearly wrong" standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710; Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10. For an appellate court to reverse a workers' compensation judge's factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the workers' compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers' compensation judge's finding. The reviewing court must review the record in its entirety to determine whether the workers' compensation judge's finding was clearly wrong or manifestly erroneous. See Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, through Department of Transportation and Development, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. The primary issue presented for decision on appeal is whether appellant proved by a preponderance of the evidence, before the OWC, that he was unable to earn ninety percent of his pre-accident wages and therefore entitled to collect supplemental earnings benefits ("SEB") from his employer. The purpose of SEB is to compensate the injured employee for wage earning capacity he has lost as a result of his accident. Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993); Hurst v. Baker Sand Control, 94-2463, p. 4 (La.App. 1st *754 Cir.10/6/95), 671 So.2d 408, 411. Like all other provisions of the workers' compensation law, the provisions governing SEB must be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989). The payment of SEB is governed by La. R.S. 23:1221(3), which provides benefits for injury resulting in the employee's inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages are computed by multiplying his "wages" by fifty-two and then dividing the quotient by twelve. Thus, the claimant in a SEB case must prove by a preponderance of the evidence that his work-related injury rendered him unable to earn ninety percent of his pre-injury wages. Moore v. Mason & Dixon Tank Lines, 540 So.2d 525, 528 (La.App. 1st Cir.), writ denied, 541 So.2d 1390 (La.1989); Fusilier v. Slick Construction Company, 94-11, p. 4 (La.App. 3rd Cir.6/1/94), 640 So.2d 788, 791. It is irrelevant whether the claimant is physically able to perform his former sedentary job that is no longer available. The relevant question is whether the claimant is partially disabled and whether he is unable to earn ninety percent of the wages he was earning prior to the injury. A claimant is not entitled to SEB when his inability to earn wages equal to ninety percent of his pre-injury wages is due to circumstances other than his work-related injury. Hurst v. Baker Sand Control, 671 So.2d at 412. Once the claimant establishes a prima facie case for his entitlement to SEB, the burden shifts to the employer to show that the claimant is physically capable of work and that the work was offered or available to the claimant in his or the employer's community or reasonable geographic area. Daigle v. Sherwin-Williams Company, 545 So.2d at 1008-09. If the employer meets this burden, then the employee must show by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely as a consequence of substantial pain. La. R.S. 23:1221(3)(c)(ii). Whether a claimant's injury prevents him from obtaining employment earning ninety percent of his pre-injury wages is a question of fact. Morris v. Norco Construction Company, 632 So.2d 332, 335 (La.App. 1st Cir.1993), writ denied, 94-0591 (La.4/22/94), 637 So.2d 163. Thus, the appellate court may not set aside the workers' compensation judge's findings in this regard absent manifest error or unless the findings are clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 883. There is no dispute that Mr. Smith was injured in the course and scope of his employment and was therefore entitled to workers' compensation benefits. The parties stipulated to the compensable *755 nature of the injury at trial, and J.E. Merit did pay workers' compensation benefits to Mr. Smith after the accident and paid for his medical bills. The conflict between the parties concerns the extent of Mr. Smith's disability and specifically, whether Mr. Smith is still disabled and unable to earn ninety percent of his pre-injury wages. The parties do not seriously dispute that plaintiff is able to perform light duty work, but rather, the issue is whether Mr. Smith established that he is physically unable to perform work that was offered to him or that was available in the community or a reasonable geographic location. Mr. Smith contends the OWC erred in denying him SEB. He maintains he cannot earn ninety percent of his pre-accident wages because he is incapable of returning to work at his pre-employment job. He argues that although he had worked prior to his surgery in March of 1999, the jobs were modified to meet his physical limitations. After his surgery, he asserts he was never released by any physician to return to his pre-accident job duties. The OWC judge obviously concluded, after evaluating the testimony and medical records, that Mr. Smith failed to prove by a preponderance of the evidence that his work-related injury resulted in his inability to earn ninety percent of his pre-injury wages. After reviewing the record in its entirety, we find that a reasonable basis exists for this finding. The record reveals that Mr. Smith returned to work on numerous occasions, performing his duties as modified by J.E. Merit to accommodate Mr. Smith's restrictions, as related by him, earning one hundred percent of his pre-injury wages. The record also reveals that, after Mr. Smith left J.E. Merit, he secured a position with Pipe & Steel Industrial Fabricators, Inc., owned and operated by Callie Sparks. Although Mr. Smith asserted that he worked part-time because of his disability, testimony provided by both Mr. Smith and Mr. Sparks indicated that a reason for the part-time schedule was that work was not available and was not necessarily due to Mr. Smith's disability. In fact, on occasion, Mr. Smith worked forty-hour weeks and even worked overtime when possible. The record amply supports the OWC's finding that Mr. Smith failed to prove by a preponderance of the evidence that his work-related injury resulted in his inability to earn ninety percent of his pre-injury wages. Therefore, Mr. Smith is not entitled to SEB. CONCLUSION For the foregoing reasons, the judgment of the OWC is affirmed. All costs of this appeal are assessed against appellant, Chuck Smith. AFFIRMED. NOTES [1] Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

979 F.2d 212 Cernav.INS NO. 91-5054 United States Court of Appeals,Eleventh Circuit. Nov 09, 1992 1 Appeal From: S.D.Fla. 2 AFFIRMED.

635 So.2d 789 (1993) Bobby Glen WILCHER v. STATE of Mississippi. Nos. 03-DP-0032, 03-DP-0037. Supreme Court of Mississippi. October 7, 1993. Rehearing Denied March 17, 1994. James W. Craig, Jackson, for petitioner. Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for respondent. En Banc. ON MOTION AND APPLICATION FOR LEAVE TO FILE MOTION TO VACATE DEATH SENTENCE PRATHER, Presiding Justice, for the Court: I. PROCEDURAL HISTORY Bobby Glen Wilcher's two convictions and sentences of death were first considered by this Court separately and affirmed in Wilcher v. State, 448 So.2d 927 (Miss. 1984), cert. denied 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984), and Wilcher v. State, 455 So.2d 727 (Miss. 1984), cert. denied 470 U.S. 1034, 105 S.Ct. 1411, 84 L.Ed.2d 794 (1985). Wilcher's cases were consolidated for this Court's first consideration of his petitions for post-conviction relief, and were denied in Wilcher v. State, 479 So.2d 710 (Miss. 1985), cert. denied 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986). He then filed a petition for habeas corpus in the United States District Court for the Southern District of Mississippi, which denied relief on June 19, 1990. However, the Fifth Circuit Court of Appeals reversed that denial and ordered that the District Court "issue the writ unless the State of Mississippi initiates in a reasonable time proceedings in state courts appropriate under Clemons."[1] That Court affirmed the *790 District Court's denial of relief on other issues. Wilcher v. Hargett, 978 F.2d 872 (5th Cir.1992). On May 16, 1991, Wilcher filed a second Application for Leave to File Motion to Vacate Death Sentence with this Court, seeking relief on one issue only, that the sentencing instructions foreclosed the jury's proper consideration of mitigating circumstances. This is one of the issues on which the Fifth Circuit affirmed the District Court. The application has not yet been acted on by the Court. On January 28, 1993, the State filed a Motion to Reconsider, through which it asks this Court engage in a harmless error analysis on the Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) and Clemons issue already decided against the State in the federal habeas corpus action. The State recognizes that this Court has already held in several cases that it would not engage in harmless error analysis on the Maynard/Clemons issue, but asks this Court to reconsider those holdings. Wilcher did not respond to the State's motion within the seven days allowed by Miss.Sup.Ct.R. 27, but instead responded by filing a Motion for Establishment of Briefing Schedule on State's Motion to Reconsider Imposition of Death Sentence on February 16, 1993. Wilcher claims in this motion that the proper course of action for this Court to take at the present time is to remand to the trial court for resentencing, citing Irving v. State, 618 So.2d 58 (Miss. 1992); Gilliard v. State, 614 So.2d 370 (Miss. 1992); Pinkney v. State, 602 So.2d 1177 (Miss. 1992); Jones v. State, 602 So.2d 1170 (Miss. 1992); Shell v. State, 595 So.2d 1323 (Miss. 1992); and Clemons v. State, 593 So.2d 1004 (Miss. 1992). However, Wilcher asserts that if the Court wishes to reconsider the issue of harmless error analysis, the Court shall set a briefing schedule which will allow him to respond to the State's contention that this Court may do so. II. ANALYSIS In spite of our previous refusals to engage in harmless error analysis on the issue of the "especially heinous, atrocious or cruel" jury instruction, the State asks again that this Court perform that task. The issue presented by the State's motion has been decided in Irving v. State, 618 So.2d 58 (Miss. 1992); Gilliard v. State, 614 So.2d 370 (Miss. 1992); Pinkney v. State, 602 So.2d 1177 (Miss. 1992); Jones v. State, 602 So.2d 1170 (Miss. 1992); Shell v. State, 595 So.2d 1323 (Miss. 1992); and Clemons v. State, 593 So.2d 1004 (Miss. 1992). We cannot do so, for reasons which we will attempt to clarify. The United States Supreme Court's decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) held that either appellate reweighing of aggravating or mitigating circumstances or harmless error analysis were permissible under the federal Constitution's Eighth Amendment, but that it was incumbent upon the Mississippi Supreme Court to interpret state law as to whether to perform such analysis. This Court holds that the basis for our decision not to reweigh based on Miss. Code Ann. § 99-19-101 (Supp. 1993) has been made abundantly clear in Clemons on remand and the other cases cited above. However, this Court clarifies the basis for our refusal to perform harmless error analysis, which rests on both independent state law and federal law grounds. Were this Court now to engage in harmless error analysis after conceding that § 99-19-101 requires that the jury make the weighing of aggravating and mitigating factors, we would run afoul of the United States Supreme Court's Clemons decision. In a portion of that opinion which we have heretofore not discussed, the Court rejected Clemons' argument based on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), that appellate reweighing would violate federal due process requirements because *791 the State statute requiring that the jury perform the weighing would not be complied with. The Court stated that: [W]e have recognized that when state law creates for a defendant a liberty interest in having a jury make particular findings, speculative appellate findings will not suffice to protect that entitlement for due process purposes. Hicks v. Oklahoma, 447 U.S. 343 (1980). ..... Contrary to the situation in Hicks, the state court in this case, as it had in others, asserted its authority under Mississippi law to decide for itself whether the death sentence was to be affirmed even though one of the two aggravating circumstances on which the jury had relied should not have been or was improperly presented to the jury. The court did not consider itself bound in such circumstances to vacate the death sentence and to remand for a new sentencing proceeding before a jury. We have no basis for disputing this interpretation of state law, which was considered by the court below to be distinct from its asserted authority to affirm the sentence on the ground of harmless error and which plainly means that we must reject Clemons's assertion that he had an unqualified liberty interest under the Due Process Clause to have the jury assess the consequence of the invalidation of one of the aggravating circumstances on which it had been instructed. Clemons v. Mississippi, 494 U.S. 738, 746-47, 110 S.Ct. 1441, 1447-48, 108 L.Ed.2d 725, 737 (1990) (emphasis added). The federal court's decision was plainly based on this Court's erroneous decision in Clemons I, 535 So.2d 1354 (Miss. 1988), motion granted and cert. granted in part, 491 U.S. 904, 109 S.Ct. 3184, 105 L.Ed.2d 693 (1989), and vacated, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) in which this Court did not address the issue of Miss. Code Ann. § 99-19-101. In Clemons II, 593 So.2d 1004 (Miss. 1992), this Court held that, under Miss. Code Ann. § 99-19-101 (Supp. 1991), only the jury can weigh the aggravating circumstances. The inescapable conclusion is that, due to our recognition that only the jury can perform the weighing task, were Clemons' due process claim once again before the United States Supreme Court, it would carry the day. The importance of this discussion to the question of harmless error analysis is clear. This Court cannot logically, either as a matter of state or federal law, distinguish how we can perform harmless error analysis without reweighing. This Court agrees that "a court reviewing a death sentence in which the weighing process has been skewed may not simply apply a limiting construction to the factor that has skewed the weighing, but must also reconsider the entire mix of aggravating and mitigating circumstances presented to the jury." Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992) (citing Stringer v. Black, 503 U.S. ___, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992)). This is particularly so in view of our own Constitution. Article 3, § 26 affords criminal defendants in this state the right to trial by jury, while Art. 3, § 14 affords the right to due process of law. Although criminal defendants in this State generally have no right to be sentenced by the jury, where a specific statute provides such a guarantee, such as § 99-19-101 (Supp. 1992), these two constitutional provisions operate together to elevate the statutory right to one of constitutional significance which this Court cannot abridge by applying harmless error analysis, whether by disregarding entirely the invalid circumstance or by applying a limiting construction. III. CONCLUSION Miss. Code Ann. § 99-19-101 (Supp. 1993) prevents this Court from performing either reweighing or harmless error analysis as a matter of state law. Therefore, the defendant's motion for leave to file a second post-conviction petition is granted; the motion to vacate the death sentence is also granted. This Court remands these cases to the Circuit Court of Scott County for new sentencing hearings. MOTION FOR LEAVE TO FILE POST-CONVICTION PETITION GRANTED; MOTION TO VACATE DEATH SENTENCE GRANTED; MOTION TO SET *792 BRIEFING SCHEDULE DISMISSED AS MOOT AND, CASES REMANDED TO CIRCUIT COURT OF SCOTT COUNTY FOR NEW SENTENCING HEARINGS. HAWKINS, C.J., and SULLIVAN, BANKS and McRAE, JJ. concur. McRAE concurs with separate opinion joined by HAWKINS, C.J., and SULLIVAN and BANKS, JJ. SMITH, J., dissents with separate opinion joined by JAMES L. ROBERTS, Jr., J., DAN M. LEE, P.J., concurs in parts II and III. DAN M. LEE, P.J., dissents with separate opinion. PITTMAN, J., not participating. McRAE, Justice, concurring: While I agree with, desire, and seek finality of a judgment as soon as possible, that finality must be balanced with the necessity of a fair trial, not a perfect trial — but a trial by a jury in death penalty cases pursuant to Art. 3, § 26 of our State constitution. I agree with the majority's decision to remand this matter to the circuit court for a new sentencing hearing before a jury. I reach this conclusion only after a thorough search of the pertinent case law and a review of our constitution and statutes involving sentencing procedures to determine punishment in capital cases. After making such an inquiry, one must conclude that only a jury has the power to sentence a person to death — not a judge; not an appellate court. Art. 3, § 26 of our constitution states: In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; ... . Our sentencing statute for capital cases, Miss. Code Ann. § 99-19-101 (1972), specifically states that only the jury has the authority to determine the death penalty. If there is not a unanimous verdict, the trial court shall sentence that person to life imprisonment. This is so even when the defendant waives his right to a trial by jury, or pleads guilty. A judge cannot sentence a person to death. A jury is required. Miss. Code Ann. § 99-19-101(1) states: If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury empaneled for that purpose. It further provides that the jury is required to make specific written findings before it can return a death sentence. If even one juror fails to agree, the trial court shall impose a life sentence. In the sentencing phase, a jury is not determining guilt or innocence, but deciding a sentencing issue under specific instructions enumerated in § 99-19-101, et seq. By statute, the jury is instructed that before it can return a death sentence, it must hear all evidence, as well as arguments of the prosecuting attorney, and the defendant and/or his counsel. It must, after proper instruction, deliberate and render a verdict based upon the facts beyond a reasonable doubt, and submit in writing its findings, clearly supported by the evidence. After hearing all evidence, the jury shall deliberate and render a verdict based on the following considerations: (1) whether at least one aggravating factor has been proved as enumerated in the instruction; (2) whether sufficient mitigating factors exist which outweigh any aggravating factor or factors found to exist; and (3) based on the consideration in sub-paragraphs (1) and (2) above whether the defendant should be sentenced to death or life imprisonment. Miss. Code Ann. §§ 99-19-101(2)(a)-(d). In any given case, therefore, it may take more than one aggravating factor to offset a mitigating factor. However, without any mitigating factors, the existence of only one aggravating factor, found beyond a reasonable doubt, is needed to impose the death penalty. A jury does not add or subtract aggravating and mitigating factors when considering the imposition of the death penalty. *793 It must first find and determine unanimously that at least one aggravating factor exists before imposing the death penalty. However, our statute specifies that even if there is only one mitigating factor, it may offset not only one, but two or four or six or eight or any number of aggravating factors. The weight of the mitigation to be applied to the aggravating factor or factors is left solely in the hands of the jury. If the verdict is not unanimous, then there is no choice but imposition of a life sentence. In order to avoid a violation of the eighth amendment to the United States Constitution, all mitigating evidence must be admitted. See McKoy v. North Carolina, 494 U.S. 433, 441-43, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990); Mills v. Maryland, 486 U.S. 367, 384, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988). In Mills, the United States Supreme Court stated: Under our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio [438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973] supra, Hitchcock v. Dugger, 481 U.S. 393 [107 S.Ct. 1821, 95 L.Ed.2d 347] (1987); by the sentencing court, Eddings v. Oklahoma [455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1] supra; or by an evidentiary ruling, Skipper v. South Carolina, [476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1] [1986], supra. The same must be true with respect to a single juror's holdout vote against finding the presence of a mitigating circumstance. 486 U.S. at 375, 108 S.Ct. at 1865-66, 100 L.Ed.2d at 394. Based on Mills v. Maryland, the Supreme Court of Colorado held in People v. Rodriguez, 794 P.2d 964 (Colo. 1990): The constitutional problem with instructing the jury that it must be unanimous with respect to the mitigating factor was illustrated by the Court with two hypothetical situations. In the "hold-out" juror hypothetical, all but one of the jurors are convinced that six relevant mitigating factors exist. However, because of the unanimity requirement in determining the appropriateness of the death penalty, cannot give any effect to the mitigating factors they have found if even one juror concludes that no mitigating factors exist. [Mills] at 373-74, 108 S.Ct. at 1864-65. In the second hypothetical, all twelve jurors agree that mitigating circumstances exist, but all twelve cannot agree on the same mitigating circumstances. The Court concluded that "it would certainly be the height of arbitrariness to allow or require the imposition of the death penalty under [these hypothetical] circumstances... ." Id. at 374, 108 S.Ct. at 1865. 794 P.2d at 980. In the case sub judice, the jury was required by statute to be specifically instructed that it must take its deliberation by steps. The first step was to consider whether one or more statutory aggravating factors was present. Each of those aggravating factors had to be specifically laid out for the jury to consider, and only those aggravating factors could be considered. After reaching a unanimous verdict on each of the aggravating factors considered, it must list those factors in writing on the jury form. Then the jury must look at the mitigating factor or factors. It may not do a "number count," adding or subtracting the aggravating and mitigating factors. Instead, the jury must weigh or balance these factors. If, in even only one juror's mind, that single mitigating factor outweighs all five, six, or ten aggravating factors, then it must impose a life sentence. My colleague, Justice Smith, believes that an appellate court may reweigh the aggravating and mitigating factors. However, this thrusts us into the role of thirteenth juror, which is not our job. Through our legislators, society has placed that responsibility in the hands of the jury. So strongly committed were our forefathers to the notion that the jury was the ultimate finder of fact, they vested that power in the people through our constitution. Moreover, if the argument is raised that a jury has found an invalid aggravating factor, coupled with one, two or many mitigating factors, it is difficult, if not impossible for an appellate court to delve into the minds of the *794 twelve individual jurors and determine that that particular aggravating factor did not help to outweigh the mitigating factors. Justice Smith, in his dissent, puts great reliance upon our sister state of Alabama's interpretation of its death penalty cases in Lawhorn v. State, 581 So.2d 1159 (Ala.Cr. App. 1990), aff'd Ex Parte Lawhorn, 581 So.2d 1179 (Ala. 1991). However, the Alabama constitution and statute differs from ours, and may allow a harmless error element since the judge is the actual sentencer, not the jury. The jury verdict is only a guide and does not have to be unanimous. In Lawhorn, the jury returned a death sentence upon an 11-1 verdict. The Alabama constitution allows the judge to be the final sentencer. Mississippi's does not. Under our constitution and our laws, it becomes quite obvious that appellate judges do not have the power to impose the death penalty. The jury, that conscience of our community, is the sole judge of the facts. Only after seeing the defendant and the witnesses, hearing arguments of the defendant and/or his counsel and the prosecutor, and receiving instructions from the court given pursuant to our constitution and laws, can the jury impose a death sentence. While the United States Supreme Court has held that courts may reweigh the jury's findings under the United States Constitution, it did not look at the Mississippi Constitution, which we are compelled to follow. The right to a trial by jury is inviolate, particularly in those cases where the death penalty is sought. HAWKINS, C.J., and SULLIVAN and BANKS, JJ., join this opinion. SMITH, Justice, dissenting: On March 5, 1982, Bobby Glen Wilcher, by trickery and deceit, kidnapped and murdered two Scott County, Mississippi, women, Velma Odell Noblin and Katie Bell Moore. He robbed Velma Noblin of a watch, two rings and a necklace. The jewelry was later recovered by law enforcement officers in Wilcher's room at his father's house. Wilcher was stopped for a speeding violation in the early morning hours of March 6, driving a vehicle belonging to one of the victims. The officer observed two women's purses on the front seat and a black bra on the back seat. Wilcher was covered with blood. Wilcher told the officer he was hurrying to the hospital for treatment of a cut finger and requested the officer to escort him. Wilcher's nicked thumb was treated at the hospital by applying a band-aid. Wilcher subsequently confessed to the two murders and was convicted and sentenced to death in separate trials by separate juries of both murders. The majority opinion has set out the long and tedious process of appellate review of these convictions as they progressed through this Court, the United States Federal District Court, the Fifth Circuit Court of Appeals, and the United States Supreme Court. I. REWEIGHING Once again, the majority adheres to its view espoused in Clemons v. State, 593 So.2d 1004 (Miss. 1992), that this Court is without authority to reweigh aggravating circumstances in capital death cases for two clear reasons: (1) "Only the jury, by unanimous decision, can impose the death penalty; (2) as to aggravating circumstances, this Court only has the authority to determine whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance." The majority holds that there is no authority for this Court to reweigh the remaining aggravating circumstances when it finds one or more to be invalid or improperly defined. Further, the majority believes that finding aggravating and mitigating circumstances, weighing them, and ultimately imposing a death sentence, by statute, should be left to a properly instructed jury. This Court, prior to Clemons, has made factual determinations of aggravating and mitigating factors in death penalty cases. Initially, this Court considered the issue of reweighing in Bullock v. State, 525 So.2d 764 (Miss. 1987). In Bullock, consideration of the Enmund requisites was analyzed in determining whether Bullock: (1) killed, (2) attempted to kill, (3) or intended that a killing take place or that lethal force be used. This *795 Court cannot deny that all three of these factors for analysis are "issues of factual findings." Therefore, the analysis by the Court was a reweighing of facts. Reweighing of aggravating and mitigating factors was carried out in the process of appellate review in Johnson v. State, 547 So.2d 59 (Miss. 1989). In Johnson, the Court stated: There are two courses open to this Court: (1) remand this cause to the circuit court of Pike County for another sentencing hearing, or (2) make the decision ourselves as to whether to reimpose the death penalty or reduce Johnson's sentence to life because of the invalidation of this aggravating circumstance which was considered by the original trial jury. As Cabana v. Bullock makes clear, there is no United States Constitutional requirement that "a jury consider the appropriateness of a capital sentence." 474 U.S. [376] at 386, 106 S.Ct. [689] at 696-97, 88 L.Ed.2d [704 at] 716. 547 So.2d at 60. The Clemons Court found itself in a "Catch 22" situation. The only way out was to overrule Johnson. In Clemons, 593 So.2d at 1006, this Court stated: In the more recent case of Johnson v. State, 547 So.2d 59, 60 (Miss. 1989), we claimed that this Court can make the decision as to whether or not to uphold a death sentence without remanding to the trial court for a jury finding. Our opinion is not clear as to whether or not we made this claim with regard to our authority as a matter of state law to reweigh or with regard to our ability to conduct a harmless error analysis. In the end, we determined that where two of three aggravating circumstances were found invalid, a jury should reconsider Johnson's sentence. Id. at 61. Any indication or implication we may have given in Johnson as to our authority under state law to reweigh in the face of an invalid or improperly defined aggravating circumstance in order to uphold a death sentence is hereby overruled. In Johnson, this Court found that the state Supreme Court was not constitutionally required to remand a case to another sentencing jury after the United States Supreme Court determined that an invalidated conviction could not be used as an aggravating circumstance for death penalty. 547 So.2d at 60. Johnson was not in need of clarity by the Clemons Court. The case was crystal clear. The Clemons majority saw that Johnson was in need of being overruled and that is exactly what they did. The three opinions in Johnson (majority, concurring and dissenting) illustrate with remarkable clarity that each recognized the importance of their respective opinions, and how that opinion would be perceived and interpreted. The Johnson opinions are not ambiguous, but rather are concise, well-reasoned opposite positions. We consider Justice Robertson's concurring opinion for insight as to the clarity of the Johnson decision from his perspective: "It may be true that there is no constitutional imperative that a death sentence may be imposed only by a jury, but it is surely mandated that responsibility for weighing and balancing the aggravating and mitigating circumstances be vested in that legal body which possesses the sentencing power." 547 So.2d at 62. If further clarity is required in Johnson, one need not look further than Chief Justice Roy Noble Lee's dissent: Questions in Bullock equivalent to the ones now facing the Court were resolved by the Court without remanding the case to a lower court for consideration by a jury. In discussing Johnson v. Mississippi, supra, which remanded the case here for further consideration, the majority opinion in the case sub judice aptly notes the concurring opinion of Justice White as follows: ..... It is left to the Mississippi Supreme Court to decide whether a new sentencing hearing must be held or whether that court should itself decide the appropriate sentence without reference to the inadmissible evidence, thus undertaking to reweigh the two untainted aggravating circumstances *796 against the mitigating circumstances. Cf. Cabana v. Bullock, 474 US 376, 88 LEd2d 704, 106 SCt 689 (1986). 486 U.S. at [591], 108 S.Ct. at 1989, 100 L.Ed.2d at 588. (Emphasis added) I would follow the teachings of Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986); Bullock v. State, 525 So.2d 764 (Miss. 1987); and Justice White's concurring opinion in Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). In my opinion, the Mississippi Supreme Court should proceed to reweigh the two untainted aggravating circumstances against the mitigating circumstances upon the record before us, and I would not remand to the lower court. 547 So.2d at 62. The Johnson Court opinion was abundantly clear. That court reweighed issues as did the Court in Bullock. The Court authorized reweighing in Johnson and overruled it in Clemons. We are mandated by statute to carefully examine death penalty cases under heightened scrutiny, to ascertain that all defendants receive fair and impartial trials with all statutory and constitutional guaranteed rights of due process afforded, safeguarded and applied when required. We must, by statute, conduct sentence review in addition to direct appeal on all death penalty cases. Miss. Code Ann. § 99-19-105 (1992), in part states: (2) The Mississippi Supreme Court shall consider the punishment as well as any errors enumerated by way of the appeal. (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; and (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. (4) Both the defendant and the state shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court. (5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to: (a) Affirm the sentence of death; or (b) Set the sentence aside and remand the case for modification of the sentence to imprisonment for life. (6) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence. Sentence review is nothing short of a judicial reexamination of the proceedings of a lower tribunal by a higher one. Reweighing is simply weighing anew. Obviously, the two terms are somewhat similar. Regardless, it is clear that § 99-19-105 requires review separate from a direct appeal, albeit the two are consolidated for consideration. There is convincing argument that a portion of this review is a one-time affair, aimed entirely at proportionality. Whether one time or more, the fact remains, we review and reweigh every death penalty case that comes before this Court, separate from the direct appeal. Authorized to review one time, we can certainly review again as may be appropriately required. However, other parts of the statute clearly refer to review of sufficiency of the evidence, factual aggravators, punishment, and errors by way of appeal. This further establishes the State statutory authority of this Court for reweighing and review of death cases, in addition to constitutional authority, allowed by the United States Supreme Court in Clemons. In reviewing and reweighing, this Court may affirm a death sentence, or set the sentence aside and remand for modification of the sentence to life imprisonment. We may also reverse and remand for a new trial or reverse and render a case. The essential, mandatory element *797 for review or reweighing is that, prior thereto, a jury has returned a sentence of death in the case being reviewed. Mississippi law requires that only a jury can impose a sentence of death. This Court is not imposing when after review, we affirm a death sentence. Except for a different criteria and heightened scrutiny, we may affirm death sentences just as we may affirm life sentences. After the opinion of the United States Supreme Court, leaving a critical decision to the Mississippi Supreme Court, this Court found itself at the fork of the road in Clemons. The Clemons Court veered to the left fork, an erroneous choice; most assuredly they should have made a sharp right. It becomes obvious that appellate judges should, by their very nature and job description, become experts at weighing and reweighing sufficiency of evidence, because they are required to do just that in every single criminal case that is appealed. Appellate judges review literally hundreds, sometimes thousands, of cases with every conceivable issue known to jurisprudence. Common sense indicates that they should be better qualified to weigh evidence to determine its sufficiency, as compared to jurors, who rarely serve on a jury more than once or twice in a lifetime. Chief Justice Roy Noble Lee's dissent in Clemons adheres to this same view: It is a routine task of the appellate courts to decide whether the evidence supports a jury verdict and in capital cases in "weighing" States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed... . It is also important to note that state supreme courts in States authorizing the death penalty, may well review many death sentences and that typical jurors, in contrast will serve on only one such case during their lifetimes. 593 So.2d at 1009. The next obvious question is whether the intervening decisions of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) and Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), would have actually adversely affected the outcome of Wilcher's sentence, assuming one agrees that these two cases are intervening decisions. In actuality, they are not intervening decisions at all; the legal concept stated in Clemons has existed since Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and this is true, Gilliard v. State, 614 So.2d 370 (Miss. 1992) notwithstanding. Wilcher could have availed himself of this legal concept at the trial level since Godfrey has existed since 1980. Most certainly he could have raised the issue on his first automatic review or "PCR" before this Court. He did not, and should not prevail at this late date. This Court was incorrect in holding Maynard and Clemons to be intervening decisions. Both case decisions were simply a reaffirmance and strengthening of the concept first established in Godfrey. II. HARMLESS ERROR ANALYSIS The United States Supreme Court remanded the Clemons case back to this Court because our decision was unclear regarding the basis for upholding the death sentence. The majority on remand specifically declared, as a matter of law, that this Court had no authority to reweigh; however, the Court left open the possibility that it might undertake harmless error analysis in the appropriate case. The Court eschewed harmless error in Clemons, Shell v. State, 595 So.2d 1323 (Miss. 1992), Jones v. State, 602 So.2d 1170 (Miss. 1992), Pinkney v. State, 602 So.2d 1177 (Miss. 1992), Gilliard v. State, 614 So.2d 370 (Miss. 1992), and Irving v. State, 618 So.2d 58 (Miss. 1992). Regardless, this Court had refused, up until the case sub judice, to declare it had no authority to engage in harmless error analysis reviewing a death sentence imposed by a jury. In fact, this Court has engaged in harmless error analysis in each of the cases, Clemons, Shell, Jones, Pinkney, Gilliard and Irving but could not find beyond a reasonable doubt that the juries in those cases would have imposed the death penalty without the unconstitutional aggravator. The Court inexplicably stated in each case that it *798 was not engaging in harmless error analysis after stating that it could not say beyond a reasonable doubt that the verdict would have been the same either without the invalid aggravator or had the invalid aggravator been properly defined. Clemons, 593 So.2d at 1097; Shell, 595 So.2d at 1325; Jones, 602 So.2d at 1173; Pinkney, 602 So.2d at 1179; Gilliard, 614 So.2d at 9; Irving, 618 So.2d at 62. The bottom line is that the majority of the Court in these cases did exactly what it said it had no authority to do. It engaged in harmless error analysis. The basic test for harmless error in the federal constitutional realm goes back to Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 710 (1967). The Chapman test is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (quoted in Yates v. Evatt, 500 U.S. 391, 392, 111 S.Ct. 1884, 1886, 114 L.Ed.2d 432, 448 (1991)). The Yates Court further clarified that the inquiry is not whether the jury considered the improper evidence or law at all, but rather, whether that error was "unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." Yates, 500 U.S. at 403, 111 S.Ct. at 1887, 114 L.Ed.2d at 449. In the case sub judice, the majority, in an attempt to extend the Clemons' Court position, holds that Miss. Code Ann. § 99-19-101 (1992) prevents this Court from performing either reweighing or harmless error analysis as a matter of state law. The majority adopts this new position in spite of stating in Clemons, Shell, Jones, Pinkney, Gilliard and Irving that they were leaving open consideration of the harmless error analysis for appropriate cases. We should, as a minimum in the case-at-bar, hold open in accordance with prior decisions continued authority for this Court to apply harmless error analysis to appropriate cases. The majority apparently believes, regardless of the number of remaining valid aggravating circumstances in a particular case, the "appropriate" case simply does not exist. Equally disturbing is the majority's holding that reweighing and harmless error are one in the same by definition. Since the United States Supreme Court has allowed state supreme courts, where the states have death penalty laws such as Mississippi's, to reweigh and consider applying harmless error to sentencing phases of capital death cases, several states have addressed this issue differently. In People v. Rodriguez, 794 P.2d 965, 983-84 (Colo. 1990), the Colorado Supreme Court held: The fact that the jury was instructed on, and found, an invalid statutory aggravating factor does not require that we vacate the defendant's sentence, however, if we can conclude that the error was harmless beyond a reasonable doubt. Clemons v. Mississippi, ___ [494] U.S. ___ [751], 110 S.Ct. at 1450, 108 L.Ed.2d 725... . Similarly, we believe that the jury, given the facts and circumstances of this case, would have found that the murder was "conscienceless or pitiless, and [was] unnecessarily torturous to the victim." Lorraine Martelli was kidnapped off the streets of Denver in her own car, driven around for hours, repeatedly raped, sodomized, beaten and humiliated. She was ultimately murdered in a manner indicating that the defendant intended to torture her before she died. We conclude that the error in failing to give the proper limiting instruction in this case was harmless beyond a reasonable doubt. In the case at bar, Wilcher kidnapped Velma Noblin and Katie Moore off the streets of Forest, Mississippi, robbed one of small amounts of insignificant jewelry, and was riding around in one of the victim's cars when stopped by a law enforcement officer. Although covered in blood, Wilcher exhibited cool, calm, calculated and conscienceless reasoning evincing little regard for human life, when he attempted to get the officer to follow him to the hospital for treatment of what turned out to be a minor nick on his thumb. This maneuver was deliberately designed to throw off law enforcement officials and avoid detection of these crimes of robbery and murder. These two innocent, unsuspecting women were simply giving Wilcher a ride home. He robbed Odell Noblin of jewelry at knife point. *799 Katie Moore stepped back, and he stabbed her 5 or 6 times. Odell Noblin saw all of this, turned and attempted to flee, but was caught by Wilcher and stabbed 20 times. According to testimony at trial, there were on Noblin's hands and arms numerous defensive cuts incurred in her attempt to fend off Wilcher. Odell Noblin was left where she fell, to bleed to death, beside the roadway in a ditch. One becomes hard pressed to say that the murders were not conscienceless or pitiless, and unnecessarily torturous to the victims. This Court has approved an "especially heinous" finding in cases where the victim has suffered a painful, lingering death. See Billiot v. State, 454 So.2d 445 (Miss. 1984) (victim found alive and gasping for air after skull had been bashed in twice with a blunt instrument); Bullock v. State, 391 So.2d 601 (Miss. 1980) (victim was beaten over the head with a concrete block and dumped into a lake); Larry Jones v. State, 381 So.2d 983 (Miss. 1980) (seventy year old victim died several hours after being beaten over the head); Tokman v. State, 435 So.2d 664 (Miss. 1983) (taxicab driver was pulled to the back seat of his cab by a rope around his neck, struggled for several minutes and was not killed until bludgeoned to death with a knife); Voyles v. State, 362 So.2d 1236 (Miss. 1978) (victim was beaten until unconscious at which point the defendant ran over her body with the car and rolled the body into the river); Gray v. State, 375 So.2d 994 (Miss. 1979) (defendant sexually molested three year old victim and threw semiconscious victim into river). A finding that the victim was mentally tortured by fear of impending death has been held sufficient to justify the "especially heinous" aggravator. See Jordan v. State, 464 So.2d 475 (Miss. 1985) (kidnap victim terrified by the defendant); Evans v. State, 422 So.2d 737 (Miss. 1982) (victim knelt behind cash register with a gun to his head, forced to open register, then forced again to kneel on floor, where he was assaulted and shot); Bell v. State, 360 So.2d 1206 (Miss. 1978) (gas station attendant forced into car, robbed, driven to wooden area and killed "execution style"; finding of mental torture). To say that Odell Noblin in particular suffered torture, as she fled for her life along the roadway, would be putting it mildly, considering she had just witnessed the murder of her best friend. This case meets the "appropriate" category this Court had in mind for application of harmless error analysis. Consequently, with the application of properly defined limiting construction and applying harmless error analysis, could it be not said beyond a reasonable doubt that the results of the jury would have been the same. It is certainly my view beyond a reasonable doubt that the results would be identical and that Wilcher should receive the penalty of death. Alabama, a weighing state, but one where the jury only recommends to the judge the appropriate sentence, has also applied harmless error analysis. In Lawhorn v. State, 581 So.2d 1159 (Ala.Cr.App. 1990), aff'd Ex Parte Lawhorn, 581 So.2d 1179 (Ala. 1991), the jury was allowed to consider the "especially heinous" aggravator without a limiting instruction. The Court, following Clemons, engaged in harmless error analysis to the effect that the Court considered "whether beyond a reasonable doubt the result would have been the same had the circumstance been properly defined in the jury instructions." Lawhorn, 581 So.2d at 1177. The Court found that Lawhorn's behavior in killing Berry made it possible to find: that, had the jury been properly instructed, it would still have returned a recommendation of death... . [T]he facts presented to the jury established, beyond any doubt, that this crime was especially heinous, atrocious, or cruel when compared to other capital offenses... . [H]ad the circumstances been properly narrowed, the jury would have recommended the same sentence and the trial court would have imposed the same sentence. Id. Alabama has mandatory proportionality review as does Mississippi, but the Alabama Supreme Court had no trouble engaging in harmless error analysis and concluding that, with proper instructions, the recommendation of the jury would have been the same, that Lawhorn receive the penalty of death. This Court is wrong to refuse to apply harmless error to death penalty sentences carte blanche after indicating on six previous *800 occasions that it might apply that analysis in certain appropriate capital death cases. Chief Justice Roy Noble Lee was correct in his dissents in Bullock, Johnson, Clemons, Pinkney, Jones, Shell and Gilliard. This Court should apply the principle of harmless error in cases where appropriate, and this case certainly meets that criteria. III. FINALITY OF CRIMINAL JUDGMENTS There exists another problem with this case and the previous cited series of Mississippi cases: the issue of applying the principle of "finality of criminal judgments." Admittedly, the rules change mid-stream all too often. They have been changed by the United States Supreme Court, the Fifth Circuit Court of Appeals, the Federal District Court, and this Court. The Fifth Circuit Court of Appeals has told this Court that we have failed to consistently apply our state statutory bars. In fairness to this Court, however, we are also mandated to give individual, special scrutiny to death penalty cases and to weigh the proportionality of these cases in this jurisdiction. This mandated process occasionally fails to allow consistency because of the individualization required. Regardless, there comes a point in proceedings when we must be able to say "it is finished." Respect for final judgments is a bedrock principle in the criminal justice system. We should insure that good faith interpretations of current, existing law, although legally debatable at the time it was utilized in rendering final judgments, are not later resurrected and used to overturn that final judgment. In Culberson v. State, 580 So.2d 1136 (Miss. 1990), we find the inescapable conclusion that all of the proceedings before the courts of the State of Mississippi were at an end for Culberson. This Court recognized the importance of finality of judgments and the adherence to that principle, thus ending the appellate proceedings upon the full litigation of all claims before this Court. Wilcher committed two horrible crimes for which two different juries convicted and sentenced him to death. Wilcher has been afforded every conceivable constitutionally guaranteed right available to a citizen. He has received the benefit of examination of numerous issues raised on appeal by this Court, the Federal District Court, the Fifth Circuit Court of Appeals, and denial of certiorari by the United States Supreme Court. Most of these issues are totally barred by Mississippi law and some by the doctrine of res judicata. Wilcher attempts to get around consideration of finality, a legal concept intertwined within the doctrine of res judicata, which would normally preclude this repeated presentation and re-litigation of these same claims 10 years after his conviction. Wilcher has succeeded on his end run with the majority, claiming "intervening decisions," thus extraordinary circumstances, under Clemons. Chief Justice Neville Patterson contributed significantly to this subject in Irving, when he opined: Finally, while this petition is not frivolous, litigation must come to an end at some time. This case has been tried, reviewed, and combed over by two trial juries, at least four times by this Court, many times by the U.S. Supreme Court and U.S. District Court over a period of time exceeding ten years. By the Grace of God, when will this litigation be concluded? 498 So.2d 305, 320 (Miss. 1986). Chief Justice Patterson would be shocked that Irving continues going in full circle review, currently proceeding back for a third jury to again consider the death penalty, seven years after his opinion, and seventeen years after the capital murder was committed. The issue of finality was raised by Presiding Justice Dan Lee in Irving, when he opined: Clearly, the firmly established judicial concern for finality evidenced in such doctrines as res judicata is not to be lightly discounted. Especially in cases such as this where all factual issues have been established and re-established by way of multiple submissions to juries. I would deny Irving's duplicative petition for post-conviction relief. We as a Court have the power and the duty to bring this case to an *801 end at this point by denying Irving's petition. 618 So.2d at 63 (Lee, P.J. dissenting). This case is a very serious, meritorious one, requiring detailed study and consideration of the issues. My greatest concern about cases such as Wilcher, as they repeat the circle of review in a seemingly never ending path, is the public's perception that justice is not being served in a timely manner by the judicial system. Failure to adhere to the principle of finality causes too many good people to demonstrate utter contempt of our system of justice, as well as disregard for our time weathered guaranteed constitutional rights. Some normally law abiding citizens unfortunately become vigilantes, taking matters into their own hands, ultimately serving as prosecutor, judge, juror and executioner. God forbid this hallowed system ever reach such a crisis point, where this is the general rule rather than the exception. Perception of our Court's fair and even handed disbursement of justice among our citizenry is of paramount importance in maintaining our great system of American jurisprudence. This case is an appropriate one in which to put some finality into practice. Wilcher's repeated filing of successive petitions fails to overcome the requirements of Miss. Code Ann. § 99-39-27(9). The claims are barred under § 99-39-21. It is clear from Wilcher's application that he is not claiming that he has newly discovered evidence or that he is suffering from a supervening insanity. He pins his argument on the claim of intervening decision only. Wilcher claims that the decisions in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), are decisions by the United States Supreme Court that "would actually adversely affect [] the outcome of his... . sentence." McKoy and Mills are not intervening decisions. On habeas review, the United States District Court denied relief on this claim. The district court found that Mills and McKoy did not apply to Wilcher's case. Also, the Fifth Circuit Court of Appeals spoke on this issue in Stringer v. Jackson, 862 F.2d 1108 (5th Cir.1988), pet. reh. and sugg. for reh. en banc denied, 866 F.2d 1417 (5th Cir.1989), finding that Mills was not an intervening decision. Stringer took this issue to the United States Supreme Court on petition for writ of certiorari, and by supplemental brief, added McKoy. Certiorari was granted in Stringer, but only on the Clemons v. Mississippi issue, which we submit that this Court was also incorrect in holding Clemons to be an intervening decision. This application should be denied. This Court is qualified to conduct such reweighing of the sentencing phase, but as a minimum, is as equally or better qualified than a jury to apply limiting construction and reweigh or apply harmless error and finalize this case once and for all. Clemons notwithstanding, this Court has reweighed and reviewed in Bullock, Johnson, and every death penalty case appealed to this Court. This Court should re-examine its majority view, as the State requests, and apply reweighing and/or harmless error analysis as the United States Supreme Court authorized in Clemons. I dissent. JAMES L. ROBERTS, Jr., J., joins this dissent, DAN M. LEE, P.J., concurs in parts II and III. DAN M. LEE, Presiding Justice, dissenting: I join parts II and III of the dissenting opinion authored by my brother Justice James W. Smith. I am convinced that his views on harmless error analysis and finality of judgment are correct. In proper cases, these legal concepts should act to prevent the automatic vacation of a death sentence by this Court. I also agree that this is a proper case. I cannot join part I of Justice Smith's opinion. For reasons expressed often in our prior decisions, I do not believe that this Court should engage in a general reweighing of aggravating and mitigating circumstances. NOTES [1] In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the United States Supreme Court focused on the effect that an invalid aggravating circumstance would have on the capital-sentencing determination in a state which weighed aggravating and mitigating circumstances. The United States Supreme Court held that there was no federal Eighth Amendment constitutional prohibition of an appellate court's reweighing the remaining valid aggravating factors and the mitigating evidence or employing a harmless error analysis and "salvag[ing] a death sentence." The federal court acknowledged that the Mississippi Supreme Court would have to interpret Mississippi law and how it would interact with permissible federal standards.

67 F.3d 1174 Jill BROWN, Plaintiff-Appellee, Cross-Appellant,v.BRYAN COUNTY, OK, et al., Defendants,Bryan County, OK and Stacy Burns, Defendants-Appellants,Cross-Appellees. No. 93-5376. United States Court of Appeals,Fifth Circuit. Oct. 23, 1995. Jack G. Kennedy, Kennedy, Minshew, Campbell, Sherman, TX, Wallace B. Jefferson, Sharon E. Callaway, Crofts, Callaway & Jefferson, San Antonio, TX, for appellant. J. Kermit Hill, Duke Walker, Hill, Ellis & Walker, Sherman, TX, Brian J. Serr, Professor of Law, Baylor Law School, Waco, TX, for appellees. Appeals from the United States District Court for the Eastern District of Texas. (Opinion June 2, 5th Cir., 1995, 53 F.3d 1410) Before REYNALDO G. GARZA, WIENER and EMILIO M. GARZA, Circuit Judges. REYNALDO G. GARZA, Circuit Judge: SUBSTITUTE PANEL OPINION1 1 A claim for damages was brought against Reserve Deputy Stacy Burns (Burns) and Bryan County, Oklahoma (Bryan County),2 by Jill Brown (Mrs. Brown) pursuant to 42 U.S.C. Sec. 1983 and Oklahoma law. The case proceeded to trial, in which the jury found in favor of the Plaintiff on every interrogatory submitted. The district court entered a judgment in accordance with the jury's verdict with one exception: Mrs. Brown was not allowed to recover for loss of past income or future earning capacity. Burns and Bryan County (collectively the "Appellants") appeal the judgment against them while Mrs. Brown appeals the portion of the judgment that denied her recovery for lost past income and future earning capacity. For the reasons stated below we affirm the district court's judgment. BACKGROUND 2 In the early hours of May 12, 1991, Todd Brown (Mr. Brown) and Mrs. Brown were traveling from Grayson County, Texas, to their home in Bryan County, Oklahoma. After crossing into Oklahoma, Mr. Brown, who was driving, noticed a police checkpoint. He decided to avoid the checkpoint and headed back to Texas, allegedly to spend the night at his mother's house. Although the parties offer conflicting stories leading to the pursuit, Deputy Sheriff Robert Morrison (Deputy Morrison) and Burns stated that they "chased" the Browns' vehicle at a high rate of speed before successfully pulling it over. Mr. Brown testified that he was oblivious to the deputies' attempts to overtake him until both vehicles had traveled approximately three miles.3 By the time the two vehicles eventually stopped, the parties had crossed into Grayson County, Texas, four miles from the Oklahoma checkpoint. 3 Immediately after exiting the squad car, Deputy Morrison unholstered his weapon, pointed it toward the Browns' vehicle and ordered the occupants to raise their hands. Burns, who was unarmed,4 rounded the corner of the truck to the passenger's side. After twice ordering Mrs. Brown from the vehicle, Burns pulled her from the seat of the cab and threw her to the ground. Burns employed an "arm bar" technique whereby he grabbed Mrs. Brown's arm at the wrist and elbow, extracted her from the vehicle and spun her to the ground. Mrs. Brown's impact with the ground caused severe injury to her knees, requiring corrective surgery.5 While Mrs. Brown was pinned to the ground, Burns handcuffed her and left to assist Deputy Morrison in subduing her husband. Mrs. Brown remained handcuffed anywhere from a minimum of thirty minutes to just over an hour. 4 According to Mrs. Brown's version of the facts, which will be reviewed in greater detail below, the deputies' pursuit and the force consequently applied against her were unprovoked. Furthermore, she claims that her detention constituted false imprisonment and false arrest. Due to the injuries resulting from that encounter, Mrs. Brown seeks compensation from Burns and Bryan County. Mrs. Brown premised the county's liability, inter alia, on the hiring of Burns by Sheriff B.J. Moore (Sheriff Moore), the county policymaker for the Sheriff's Department. DISCUSSION 5 The Appellants have presented this Court with a host of issues to support their position that the lower court erred. For efficiency's sake, we will address only those points that we believe merit review. We first address the claims against Burns for the constitutional injuries that Brown suffered. I. 6 In their first argument, Burns and Bryan County allege that the force applied against Mrs. Brown was proper. Appellants claim that the evidence "undisputedly" established that Burns' actions on the morning of May 12, 1991, were objectively reasonable. Therefore, the jury's findings should be reversed. 7 All claims that a law enforcement officer has used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other "seizure" of a free citizen, are analyzed under the Fourth Amendment and its "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The test of reasonableness under the Fourth Amendment requires 8 careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. 9 Id. at 396, 109 S.Ct. at 1872. The "reasonableness" of the particular force used must be judged from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight. Id. In cases implicating excessive force, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. Id. (citation omitted). Thus, the question is whether the officer's actions are "objectively reasonable" in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. Id. at 397, 109 S.Ct. at 1872. 10 Determining whether Burns' actions were reasonable depends on whose story the trier of fact accepts as true. According to the testimony of Burns and Deputy Morrison, they were involved in a "high-speed" pursuit6 after the Browns abruptly turned their truck and sped from the checkpoint. After a four mile "chase" both vehicles came to a full stop. The deputies exited their vehicle and made several commands for the occupants to raise their hands before those commands were obeyed. After rounding the truck, Burns twice ordered Mrs. Brown to exit the vehicle, but she did not comply. He then perceived that she was "lean[ing] forward" in the cab of the truck as if she were "grabbing a gun."7 He was "scared to death," so he extracted her from the vehicle. He spun her around, dropped her to the ground via the arm bar maneuver and handcuffed her. That was the lowest amount of force he deemed necessary to extract her and ensure he and his partner's safety. 11 Certainly, Appellants' version of the facts supports a claim that Burns acted reasonably and with an appropriate amount of force. The Browns, however, paint a strikingly different picture. They testified that they were oblivious to the attempts made by the deputies to catch up to them (the Browns) after avoiding the Oklahoma checkpoint.8 Mr. Brown avoided that stop because he feared the possibility of being harassed or unnecessarily detained by the deputies.9 He further testified that he did not believe that he turned the truck around either in a reckless fashion nor with wheels squealing or throwing gravel, and that he drove away at a normal rate of speed. Finally realizing that they were being pursued, Mr. Brown pulled over only to find a gun pointed at him. They were ordered to put their hands up and they did so. 12 Mrs. Brown then testified that Burns ran to her side of the vehicle and ordered her to get out. She was paralyzed with fear and heard Burns repeat the command. According to her testimony, however, she was not slow in responding to Burns' orders and she did not make any sudden moves while exiting the vehicle. Her only forward movement was to exit the truck and, contrary to Burns' testimony, she did not reach for anything. Then, while she was exiting the truck, Burns suddenly grabbed her arm, yanked her out, spun her around and threw her to the pavement. She could not break her fall because one arm was raised and Burns firmly gripped the other. 13 In addition to this conflicting testimony, both sides elicited expert testimony concerning the reasonableness of Burns' actions. Mrs. Brown's expert, for example, concluded that the force applied by Burns in this situation was unjustified and excessive.10 The jury weighed all the evidence, evaluated the conflicting testimony and rendered a verdict in Mrs. Brown's favor. Under our standard of review,11 when the evidence supports the verdict, this Court will not impose its own opinion in contravention to the jury's. Therefore, we will not interfere with the fact finder's conclusion that Burns' actions were unreasonable and that the force he used was excessive. II. 14 Notwithstanding the jury's findings, Appellants also assert that there was probable cause to arrest Mrs. Brown. They argue that the facts justified Burn's actions, thereby precluding Mrs. Brown's Sec. 1983 claim for false arrest. 15 There is no cause of action for false arrest under Sec. 1983 unless the arresting officer lacked probable cause. Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.1991). To determine the presence or absence of probable cause, one must consider the totality of the circumstances surrounding the arrest. United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974),12 cert. denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975). Whether officers have probable cause depends on whether, at the time of the arrest, the " 'facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the arrested] had committed or was committing an offense.' " Id. (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Furthermore, although flight alone will not provide probable cause that a crime is being committed, in appropriate circumstances it may supply the " 'key ingredient justifying the decision of a law enforcement officer to take action.' " United States v. Bowles, 625 F.2d 526, 535 (5th Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976)). 16 To reiterate, whether Burns had probable cause to arrest Mrs. Brown depends in large part on whether the facts, as Burns knew them, were sufficient to warrant a prudent man's belief that Mrs. Brown committed or was in the process of committing a crime. The facts material to that determination were hotly contested, especially the contradictory testimony relating to the pursuit and Mrs. Brown's movements while exiting the vehicle. Thus, it was for the fact finder to determine whether Burns had probable cause to arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir.1994). Assuming arguendo that the deputies had a reasonable suspicion to perform an investigatory stop, we nevertheless find the evidence sufficient to support the jury's finding that Burns did not have probable cause to arrest Mrs. Brown, and that his doing so violated her constitutional right to be free from false arrest. 17 As the jury found that Burns did not have probable cause to detain or arrest Mrs. Brown, it could also find from the evidence that she was falsely imprisoned. To set out a claim for false imprisonment the plaintiff must prove (1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848, 860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). Under Sec. 1983, the plaintiff must also prove the deprivation of a constitutional right, i.e., an illegality under color of state law. Id. The evidence establishes that Mrs. Brown believed herself to be under arrest: even though she had committed no crime, she remained handcuffed for approximately an hour before being released, during which time she was never informed of the nature of the charges for which she was being detained, and subsequently no charges were ever brought. In light of such evidence, a finding of false imprisonment is proper.13 III. 18 Appellants also contest the jury's finding that Burns was not entitled to qualified immunity. A proper analysis of a qualified immunity defense requires us to conduct a two (sometimes three) prong inquiry. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine "whether the plaintiff has asserted a violation of a constitutional right at all." Siegert, 500 U.S. at 232, 111 S.Ct. at 1793. Second, we establish whether the law was clearly established at the time of the official's action. Siegert, 500 U.S. at 233, 111 S.Ct. at 1794; Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2737-38. Third, we evaluate the "objective reasonableness of [the] official's conduct as measured by reference to clearly established law." Harlow, 457 U.S. at 818, 102 S.Ct. at 2739. It is clear that by 1991, use of excessive force, false arrest and false imprisonment had been held to violate citizens' constitutional rights, thus the qualified immunity defense fails if Burns did not act with probable cause. And as the trier of fact determined that Burns did not have probable cause to arrest Mrs. Burns, he is not entitled to qualified immunity.14 IV. 19 Burns asserts that the evidence is insufficient to support the jury's award of punitive damages. He argues that application of the arm bar technique did not rise to a level of "flagrant" conduct and further, that it did not evidence malice or give rise to an inference of evil intent.15 Nevertheless, the Supreme Court has ruled that punitive damages are recoverable in a Sec. 1983 action. Smith v. Wade, 461 U.S. 30, 35, 103 S.Ct. 1625, 1629, 75 L.Ed.2d 632 (1983). One of the primary reasons for Sec. 1983 actions and punitive damages is to deter future egregious conduct. Id. at 49, 103 S.Ct. at 1636. A jury may assess punitive damages in an action under Sec. 1983 if the defendant's conduct is shown to be motivated by evil motive or intent, or involved reckless or callous indifference to the federally protected rights of others. Id. at 56, 103 S.Ct. at 1640. The question is whether the acts of Burns, which caused the deprivation of Mrs. Brown's constitutional rights, rose to a level warranting the imposition of punitive damages. In light of the evidence before it, we believe that the jury could properly infer that Burns' acts were unjustified and that he acted with callous or reckless indifference to Mrs. Brown's constitutional rights. Therefore, punitive damages were justified. V. 20 On cross-appeal, Mrs. Brown argues that it was error for the district court to grant Appellants' Motion for Judgment Notwithstanding the Jury Verdict (JNOV) as it relates to her claims for loss of past income and future earning capacity.16 Mrs. Brown asserts that neither Bryan County nor Burns specifically raised an issue concerning the sufficiency of the evidence supporting that portion of the judgment, thus the district court's action was unjustified and the award must be reinstated. She insists that there is absolutely no legal predicate on which the district court could base its actions. Therefore, as evidence was offered to support this award, Mrs. Brown argues that the original jury award should be reinstated. 21 This Court has determined that it "would be a constitutionally impermissible re-examination of the jury's verdict for the district court [or this Court] to enter judgment n.o.v. on a ground not raised in the motion for directed verdict." McCann v. Texas City Refining, Inc., 984 F.2d 667, 672 (5th Cir.1993). It is undisputed that the Appellants did not address the sufficiency of the evidence supporting the jury's award for loss of past income and future earning capacity in their motions for either directed verdict or JNOV. Thus, the lower court should not have decided whether sufficient evidence exists to support this award. However, as the Appellants point out, Mrs. Brown failed to object to this error at trial, and it is the "unwavering rule in this Circuit that issues raised for the first time on appeal are reviewed only for plain error." Id. In other words, this Court will reverse only if the error complained of results in a "manifest miscarriage of justice." Id. Furthermore, contrary to Mrs. Brown's contention, the issue is not whether any evidence exists to support the jury verdict. Instead, the issue is whether the district court's action constituted plain error. 22 Upon reviewing the record, we do not believe that the lower court's error resulted in a manifest miscarriage of justice. The only evidence offered in support of the award comprised of Mrs. Brown's testimony, which reflected that she had accepted an offer to commence work a few days after the day of the incident. Her compensation would have been measured on a commission basis, which she believed would have paid between $1,500 to $1,800 a month. The district court's ruling that this evidence was lacking does not arise to plain error. Mrs. Brown's failure to object at the appropriate time denied the district court the opportunity to rectify any errors. Therefore, the court's ruling will stand. VI. 23 Having found that Burns violated Mrs. Brown's constitutional rights, the next inquiry concerns the possible liability of Bryan County. Liability will accrue for the acts of a municipal official when the official possesses "final policymaking authority" to establish municipal policy with respect to the conduct that resulted in a violation of constitutional rights. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality opinion). 24 Bryan County stipulated that Sheriff Moore was the final policymaker for the Sheriff's Department. As such, it is patently clear that Sheriff Moore17 is an official "whose acts or edicts may fairly be said to represent official policy and whose decisions therefore may give rise to municipal liability under Sec. 1983." Id. at 480, 106 S.Ct. at 1299 (citing Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978)). 25 Mrs. Brown argues that a municipality can be held liable under Sec. 1983 based on a final policymaker's single decision regarding the hiring or training of one individual. Appellants, on the other hand, argue that Sec. 1983 liability cannot attach on the basis of a policymaker's single, isolated decision to hire or train one individual. 26 An argument similar to the Appellants' was rejected by this Court in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993). In Gonzalez, the Ysleta Independent School District (YISD) was sued for a single decision to transfer a teacher accused of sexually harassing a student, rather than removing him from the classroom. YISD argued that this ad hoc, isolated decision, even when made by policymakers, did not constitute the sort of "policy" upon which municipal liability could be predicated under Monell. This was especially true there, insisted YISD, as the decision was contrary to the district's own formal policy for handling such matters. This argument proved unpersuasive. 27 Based on the facts before it, the Gonzalez panel concluded that the final policymaker's single, conscious decision, i.e., the Board of Trustee's decision to transfer the teacher rather than remove him from the classroom, constituted a "policy" attributable to the school district. Gonzalez, 996 F.2d at 754. This conclusion was logical, as "[n]o one has ever doubted ... that a municipality may be liable under Sec. 1983 for a single decision by its properly constituted legislative body ... because even a single decision by such a body unquestionably constitutes an act of official government policy." Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298 (emphasis added).18 To deny compensation to the victim in such a case would be contrary to the fundamental purpose of Sec. 1983. Id. at 481, 106 S.Ct. at 1299. So, it is clear that a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity. 28 Mrs. Brown argues that Burns' lengthy criminal history should have prevented Sheriff Moore from hiring him. Burns' history revealed a string of offenses that, she claims, demonstrates a disregard for the law and a propensity for violence. Moreover, she maintains that a thorough investigation of Burns' background would have revealed that his parole had been violated by his numerous offenses. Thus, she argues that Burns' screening and subsequent employment by Sheriff Moore were inadequate and subjected Bryan County to liability. 29 During the application process Sheriff Moore ordered a printout of Burns' criminal record, which revealed the following citations and arrests: nine moving traffic violations, Actual Physical Control (APC) of a motor vehicle while intoxicated, driving with a suspended license, arrest for assault and battery, conviction for possession of a false identification and an arrest for resisting lawful arrest. When Sheriff Moore was examined about Burns' "rap sheet," the following exchange took place: 30 Q. Did you make an inquiry with the proper authorities in Oklahoma to get a copy of Mr. Burns' rap sheet? 31 A. I run his driving record, yes. 32 Q. All right. And you can get that rap sheet immediately, can't you? 33 A. It don't take long. 34 Q. All right. And did you not see on there where Mr. Burns had been arrested for assault and battery? Did you see that one on there? 35 A. I never noticed it, no. 36 Q. Did you notice on there he'd been arrested or charged with [Driving While License Suspended] on several occasions? 37 * * * * * * 38 A. I'm sure I did. 39 Q. All right. Did you notice on there that he'd been arrested and convicted for possession of false identification? 40 A. No, I never noticed that. 41 Q. Did you notice on there where he had been arrested for public drunk? 42 A. He had a long record. 43 Q. Did you notice on there where he had been arrested for resisting arrest? 44 A. No, I didn't. 45 Q. Did you make any inquiries after you got that information to determine exactly what the disposition of those charges were? 46 A. No, I didn't. 47 Q. Did you not make any attempt to find out the status of Mr. Burns' criminal record at that time?A. As far as him having a criminal record, I don't believe he had a criminal record. It was just all driving and--most of it was, misdemeanors. 48 Q. Well, did you make any attempts to determine whether or not Mr. Burns was on probation at the time you placed him out there? 49 A. I didn't know he was on probation, no. 50 Q. Did you make any effort to find out? 51 A. I didn't have no idea he was on probation, no. 52 Q. Well, you saw on his rap sheet where he had been charged with [Driving Under the Influence], didn't you? 53 A. I had heard about that. I don't remember whether I had seen it on the rap sheet or not. 54 Q. So you'd heard about it? 55 * * * * * * 56 A. I don't remember whether I seen it on the rap sheet or heard about it. 57 Besides this damaging testimony, Mrs. Brown's expert19 testified regarding the importance of properly screening law enforcement applicants. The expert testified that a thorough investigation process is needed to weed out individuals who enter the police force for the wrong reasons, for example, because "they like to exert their power." In light of Burns' arrest record, the expert concluded that he showed a "blatant disregard for the law and problems that may show themselves in abusing the public or using excessive force," thereby rendering Burns unqualified for a position in law enforcement. The expert further testified that as a minimum, Sheriff Moore should have investigated the disposition of the charges against Burns. Even Appellants' expert, Ken Barnes, agreed that Burns' criminal history should have caused some concern, meriting a further review of the applicant. More importantly, when Mr. Barnes was asked if he would have hired Burns, he replied that it was "doubtful." 58 From the foregoing evidence, the jury could have reasonably inferred that Sheriff Moore "closed his eyes" to Burns' background when hiring him. This inference is reinforced by Burns' familial relations within the Sheriff's Department: not only is Burns the son of Sheriff Moore's nephew, but Burns' grandfather had been involved with the department for more than sixteen years. Alternatively, the jury could have inferred that Sheriff Moore was indeed aware of Burns' past problems with the law and was therefore cognizant of his deficient character, but nevertheless opted to employ him because he was "family".20 Again, the innuendos of nepotism only bolster the inference that Burns would have been hired regardless of his criminal history. 59 We believe that the evidence supports the jury's conclusion that Sheriff Moore did not conduct a good faith investigation of Burns. Although it is true that Sheriff Moore ran a NCIC check of Burns, this action was futile given that Burns' arrest history was all but ignored. Sheriff Moore conceded that Burns' record was so long that he did not bother to examine it. And, except for this feeble attempt to screen him, no other effort was made to investigate Burns. A further examination would have revealed that Burns had repeatedly violated probation, and that a warrant was subsequently issued for his arrest. In light of this history, it should have been obvious to Sheriff Moore that a further investigation of Burns was necessary. 60 We also find the evidence sufficient for a jury to conclude that Sheriff Moore's decision to hire Burns amounted to deliberate indifference to the public's welfare. See Stokes v. Bullins, 844 F.2d 269, 275 (5th Cir.1988); Wassum v. City of Bellaire, Texas, 861 F.2d 453, 456 (5th Cir.1988); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). In light of the law enforcement duties assigned to deputies, the obvious need for a thorough and good faith investigation of Burns, and the equally obvious fact that inadequate screening of a deputy could likely result in the violation of citizens' constitutional rights, Sheriff Moore can reasonably be said to have acted with deliberate indifference to the public's welfare when he hired Burns. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989).21 The failure to conduct a good faith investigation of the prospective employee amounted to Sheriff Moore deliberately closing his eyes to the Burns' background.22 Such indifferent behavior cannot be tolerated when the prospective applicant will be employed in a position of trust and authority. 61 Additionally, the jury could find that hiring an unqualified applicant and authorizing him to make forcible arrests actually caused the injuries suffered by Mrs. Brown. That is, the policymaker's (Sheriff Moore's) single action of hiring Burns without an adequate review of his background directly caused the constitutional violations of which Mrs. Brown now complains. Benavides, 955 F.2d at 972; Fraire v. City of Arlington, 957 F.2d 1268, 1277 (5th Cir.) (section 1983 liability attaches only "where the municipality itself causes the constitutional violation" at issue), cert. denied, --- U.S. ----, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992). Therefore, the violation of Mrs. Brown's constitutional rights was affirmatively linked to Bryan County's decision to hire Burns for law enforcement activities. Stokes v. Bullins, 844 F.2d 269, 276 (5th Cir.1988). CONCLUSION 62 After a thorough review of the record, this Court finds that the evidence supports the jury's verdict holding Burns and Bryan County liable for Mrs. Brown's Sec. 1983 claim based on her false arrest, false imprisonment and the inadequate hiring of Burns. We also find that the district court did not plainly err in dismissing the jury's award for Mrs. Brown's loss of past income and future earning capacity. For these reasons, the jury's verdict stands and the district court's judgment is 63 AFFIRMED. 64 EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part: 65 Although I concur in most of the opinion of the Court, I dissent from Part VI of the opinion and the judgment as to Bryan County. My disagreement is with the majority's treatment of the Monell1 issue--"it is clear that a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity" maj. op. at 1183 --which is based on our prior opinion in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993). 66 Clearly, Sheriff Moore was a policymaker under Monell; clearly, he hired Reserve Deputy Stacy Burns; clearly, there is sufficient evidence to support a finding that Sheriff Moore was deliberately indifferent in failing to conduct an adequate background investigation.2 However, one inadequate background investigation, even by a municipal policymaker, is not the "unconstitutional municipal policy" of which Monell, Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), or City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), speaks. This error, in my opinion, flows from blurring the distinction made clear in Tuttle--"where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy' and the constitutional deprivation." Tuttle, 471 U.S. at 824, 105 S.Ct. at 2436 (footnote omitted) (emphasis added). 67 I do not agree, therefore, with the majority's implicit reasoning that any "distinction between policies that are themselves unconstitutional and those that cause constitutional violations" is "metaphysical." Tuttle, 471 U.S. at 833 n. 8, 105 S.Ct. at 2441 n. 8 (Brennan, J., concurring). The majority incorrectly, in my opinion, follows our opinion in Gonzalez in holding that Sheriff Moore's single decision created municipal liability, without reconciling the Supreme Court's instruction in Tuttle that a jury must have "considerably more proof than the single incident" before it can find causation.3 There is a constitutional difference between a sheriff ordering his deputies to violate citizen's constitutional rights, see, e.g., Pembaur, 475 U.S. at 484-85, 106 S.Ct. at 1300-01 (imposing liability for County Prosecutor's direct order to police officers to violate Fourth Amendment), and one that hires a reserve deputy without conducting an adequate background investigation. In the latter instance, greater proof is required in order to establish the connection between the policy and the constitutional violation. See Pembaur, 475 U.S. at 482 n. 11, 106 S.Ct. at 1299-1300 n. 11 (plurality opinion) (noting that Tuttle required the plaintiff to "establish that the unconstitutional act was taken pursuant to a municipal policy rather than simply resulting from such a policy in a 'but for' sense"); see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989) (requiring a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation"); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.) (requiring plaintiff to show that "the inadequate hiring ... policy directly caused the plaintiff's injury"), cert. denied, --- U.S. ----, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). 68 The Court in Pembaur concluded "that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances." Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298. The Court also stated that Tuttle was "consistent" with its holding that "the policy which ordered or authorized an unconstitutional act can be established by a single decision by proper municipal policymakers." Id. at 482 n. 11, 106 S.Ct. 1299-1300 n. 11 (plurality opinion). Therefore, it is not clear that Sheriff Moore's single act of deliberate indifference in fact established "policy," even though Pembaur holds that a single act "may " or "can " establish policy "under appropriate circumstances." I do not believe that the Court in Pembaur intended to suggest that any and every act by a final municipal policymaker constitutes, without more, "municipal policy." Sheriff Moore's deliberate indifference may have caused the constitutional violation in a "but for" sense, but it did not directly "order" or "authorize" the violation. Where the policymaker's decision does not directly "order" or "authorize" the constitutional violation, something more than a single decision is required in order to find that this decision in fact constitutes "municipal policy," such that we can hold the county liable. Therefore, in my view, Brown failed to establish the constitutional liability of the county on the basis of Sheriff Moore's single decision.4 Accordingly, I would affirm the district court in all aspects, except that I would reverse as to Bryan County. 1 The original panel opinion, to which Judge Emilio M. Garza dissented, Brown v. Bryan County, Ok., 53 F.3d 1410 (5th Cir.1995), is withdrawn and is replaced in toto by this opinion, in which Judge Wiener continues to concur 2 This suit was originally brought against several parties, but the district court dismissed the claims concerning the other Defendants, leaving Bryan County and Stacy Burns as the only Defendants 3 Apparently, the road traveled on was winding, thereby, diminishing the visibility of other vehicles approaching from behind 4 Although Burns was working for the Sheriff's Department, he was not authorized to carry a firearm or drive a squad car 5 Mrs. Brown received a total of four operations on her knees. Moreover, medical testimony was elicited at trial which showed that Mrs. Brown would ultimately require total knee replacements 6 The deputies testified that they were pursuing the Browns at speeds in excess of 100 miles per hour 7 The fact that two firearms were found in the truck after the arrest does not make Burns actions any more or less reasonable, unless his actions had resulted from the observation of those guns prior to the arrest. That was not the case, however 8 Mr. Brown testified that initially, he did not hear any police sirens, or observe a squad car following them. Finally, after driving for several minutes at speeds of 40 to 55 miles per hour, he glimpsed the blue lights from the deputies' vehicle and determined that he was being pursued. He stopped the truck at the first available opportunity 9 Mr. Brown alleged that he had been unnecessarily detained at that checkpoint on several occasions 10 The expert did acknowledge that the force used was the lowest force that could have been applied in extracting and subduing an arrestee without endangering either party. However, he did not feel that the situation required this type of force 11 The standard for appellate review of a jury's verdict is exacting. Granberry v. O'Barr, 866 F.2d 112, 113 (5th Cir.1988). It is the same standard as applied in awarding a directed verdict or a judgment notwithstanding the verdict and is referred to as the "sufficiency of the evidence" standard. Id. The standard is as follows: "The verdict must be upheld unless the facts and inferences point so strongly and so overwhelmingly in favor of one party that reasonable men could not arrive at any verdict to the contrary. If there is evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the jury function may not be invaded." Id. (quoting Western Co. of North Am. v. United States, 699 F.2d 264, 276 (5th Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983)). Stated another way, the Court should consider all of the evidence, not just that evidence which supports the nonmovant's case, in the light and with all reasonable inferences most favorable to the nonmovant. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc). 12 In Maslanka, a police officer observed a car coming down a road and, upon seeing his unmarked car, it turned around and sped away in flight. This Court found that this observation provided sufficient facts for an officer to investigate. Maslanka, 501 F.2d at 213. Upon stopping the car, the officer smelled marihuana smoke, creating the probable cause necessary to arrest the passengers. Id 13 As this Court finds that liability was proper for the claims of excessive force, false arrest and false imprisonment, it need not address the state law issues involved herein 14 "While it is correct that the reasonableness of the arresting officer's conduct under the circumstances is a question of law for the court to decide, such is not the case where there exist material factual disputes...." Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir.1994) (discussing officer's qualified immunity) 15 Mrs. Brown did not respond to this argument in her briefs 16 In the order, the district court stated "[t]he jury awarded plaintiff substantial damages in this case, including $36,000 for loss of income in the past and $180,000 for loss of earning capacity in the future. After a review of the evidence in this case, the Court is convinced that there is no legally sufficient evidentiary basis for the award of these damages. Therefore, judgment should be granted for the defendants on plaintiff's claims for loss of income in the past and loss of earning capacity in the future." 17 Appellants failed to object to the jury instructions which referred to Sheriff Moore as the final policymaker. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993) (failure to lodge an objection to court's instructions regarding the final policymaker waived the issue) 18 In Pembaur, the Supreme Court held that a county prosecutor's single decision, ordering law officers to forcibly enter a dentist's office, was actionable under Sec. 1983. 475 U.S. at 480-81, 106 S.Ct. at 1298-99. However, the Court cautioned that liability would only attach where the course of action was deliberately chosen by a decisionmaker possessing final authority to establish municipal policy. Id. at 481, 106 S.Ct. at 1299. We note that Mr. Pembaur's Sec. 1983 action was premised on a theory of municipal policy and not on a theory of municipal custom. Id. n. 10 19 The record shows that the expert, Dr. Otto Schweizer, had spent over twenty years in law enforcement, including, several years as a field training officer, a police chief and as a professor of criminal justice and police administration at the University of Central Oklahoma 20 In light of the string of arrests and convictions, a jury could properly conclude that Burns had a propensity for violence and a disregard for the law, thus, precluding his employment. We deem such a conclusion proper, even though Burns had no felonies on his record. Oklahoma law prevents a sheriff from hiring an individual convicted of a felony or a crime involving moral turpitude. OKLA.STAT.ANN. tit. 70, Sec. 3311(d)(2) (West 1994) 21 Further, the lower court's charge to the jury was proper: "Sheriff B.J. Moore would have acted with deliberate indifference in adopting an otherwise constitutional hiring policy for a deputy sheriff if the need for closer scrutiny of Stacy Burns' background was so obvious and the inadequacy of the scrutiny given so likely to result in violations of constitutional rights, that Sheriff B.J. Moore can be reasonably said to have been deliberately indifferent to the constitutional needs of the Plaintiff." 22 It is certainly true that the Sheriff had conducted adequate background checks on other deputies and assured himself that they were certified before putting them on the street, but the fact that he diverged from that practice as to this one individual does not save the County from liability. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993) 1 Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) 2 Under Stokes v. Bullins, 844 F.2d 269 (5th Cir.1988), "We ... require a plaintiff [in cases such as this] to establish actual knowledge of the seriously deficient character of an applicant or a persistent, widespread pattern of the hiring of policemen, for instance, with a background of unjustified violence." Id. at 275 n. 9. Although the majority does not state explicitly that the jury could have found that Sheriff Moore actually knew of Burns' criminal record, because the evidence supports such a finding, I do not disagree with the majority's conclusion that Sheriff Moore was deliberately indifferent 3 Indeed, because Gonzalez eventually was decided on the question of deliberate indifference, the causation question was never firmly resolved. See Gonzalez, 996 F.2d at 754 (stating only that the policy "may have produced or caused the constitutional violation") 4 I emphasize that it is the County's constitutional liability and not Sheriff Moore's tort liability that I question. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 201, 109 S.Ct. 998, 1006, 103 L.Ed.2d 249 (1989) (explaining that Due Process Clause does not constitutionalize "every tort committed by a state actor"); Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 1070, 117 L.Ed.2d 261 (1992) ("[W]e have previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law." (citations omitted)); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir.) (en banc) ("Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." (quoting Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979))), cert. denied, --- U.S. ----, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994)

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6290 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. WADE TEMPLE HANKINS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:05-cr-00025-F-1) Submitted: July 29, 2014 Decided: July 31, 2014 Before NIEMEYER, WYNN, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Wade Temple Hankins, Appellant Pro Se. Jason Harris Cowley, Edward D. Gray, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wade Temple Hankins appeals the district court’s order denying his motion for jail credit on his federal sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Hankins, No. 7:05-cr-00025-F-1 (E.D.N.C. Jan. 16, 2014). 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 2 

112 F.Supp. 29 (1953) HALL LABORATORIES, Inc. v. SPRINGS COTTON MILLS, Inc. Civ. A. No. 1262. United States District Court W. D. South Carolina, Rock Hill Division. February 27, 1953. Roddey & Ward, Rock Hill, S. C., Blenko, Hoopes, Leonard & Buell, Pittsburgh, Pa., for plaintiff. D. Reese Williams, A. Z. F. Wood, Lancaster, Davis, Hoxie & Faithfull, New York City, for defendant. *30 WYCHE, Chief Judge. In compliance with Rule 52(a) of the Rules of Civil Procedure, I find the facts specially and state my conclusions of law thereon, in the above cause, as follows: Findings of Fact 1. This is a civil action for infringement of United States Patent 2,337,856, dated December 28, 1943 (hereinafter called "the Rice & Hatch patent"). The Rice & Hatch patent issued to plaintiff as assignee of Owen Rice and George B. Hatch and title has remained in plaintiff ever since. 2. The plaintiff, Hall Laboratories, Inc., is a Pennsylvania corporation. It is a wholly owned subsidiary of Hagan Corporation, a Pennsylvania corporation. Hagan Corporation is the parent corporation of two other wholly owned subsidiaries, The Buromin Company and Calgon, Inc., both Pennsylvania corporations. 3. The defendant The Springs Cotton Mills, Inc. is a South Carolina corporation, having places of business at Fort Mill, Grace and Kershaw, South Carolina, in the Western District of South Carolina. 4. The Rice & Hatch patent is for a process of retarding the corrosion of metal by water, and particularly for retarding the corrosion of pipe lines and other parts of water distribution systems. By "corrosion" is meant the formation of an oxide of the pipe metal (iron oxide, or rust, in the case of iron or steel pipe). It results from the presence of oxygen dissolved in the water, which oxygen reacts chemically with the metal when the water comes in contact with the pipe surface. 5. Corrosion manifests itself by the presence of suspended rust in the water — "red water" — or the formation of "tubercles" or growths of oxide inside the pipe. 6. The natural waters supplied by streams and wells are of almost infinite variety. The water supplies are corrosive over large areas of the United States and the problem of protecting water pipes is correspondingly widespread. In or prior to 1913, Baylis, a water chemist in Mississippi, proposed a protective system that was widely adopted. It consisted in adding chemicals to the water which would bring about a state of supersaturation of calcium carbonate therein; in such a situation calcium carbonate tends to come out of solution, not instantly but after a time lag, the length of time being dependent on various factors; the calcium carbonate accordingly deposits as a scale on the inside surfaces of the pipes and protects them from the corrosive action of the water. 7. In 1936, Professor Langelier of the University of California evolved a mathematical formula relating the various factors affecting the level of calcium carbonate saturation in waters treated according to the Baylis system, and water supplies have since been generally classified as having a positive, a zero, or a negative Langelier index or coefficient. If the index is positive the water is supersaturated and tends to deposit calcium carbonate scale; if the index is zero the water is saturated and tends neither to deposit nor to dissolve scale; if the index is negative the water is undersaturated and tends to dissolve calcium carbonate scale with which it comes in contact. 8. Although the Baylis system was widely used, it had several disadvantages: considerations of chemical costs limited its application to waters which naturally contain relatively large amounts of "bicarbonate radical," the cost being a factor of particular importance in those areas where the water systems serve textile plants, where lime (the cheapest of the usable chemicals) must be avoided because of its effect upon the goods; the carrying capacity of the pipes was materially reduced; the protection was not uniform through the system, an excess of scale forming near the treating plant, with resultant plugging troubles, and insufficient scale forming in the extremities of the system, with resultant corrosion troubles; and there was a notable tendency to plug up hot-water pipes and hot-water heaters. 9. Prior to the work of the patentees, Rice and Hatch, it was known that the tendency of waters that are naturally scaleforming (positive Langelier) to deposit scale could be retarded by the addition of small amounts, e. g., 1-10 parts per million, of a chemical called sodium metaphosphate *31 (herein called simply "metaphosphate"). It was and is desirable in certain situations to limit the deposition of scale; for example, scale reduces the efficiency of heat exchangers. However, if the water was corrosive as well as scale-forming, there was danger in using metaphosphate to control scale, because if the scale was not maintained thick enough to protect the metal surfaces from contact with the water, damage from corrosion resulted. 10. Metaphosphate is per se corrosive, and it is necessary to use rubber-lined, stainless steel pumps in handling concentrated solutions of it. 11. Rice and Hatch discoverd that the combination of negative Langelier water, calcium dissolved in the water, and metaphosphate dissolved in the water in amounts not exceeding two formula weights for each formula weight of dissolved calcium would form a submicroscopic protective film on metal surfaces with which the water was in contact, which film would protect the metal from corrosion by oxygen in the water. This is the discovery to which Rice & Hatch patent is addressed. If the water is positive Langelier the protective film will not form. If there is no calcium in the water the film will not form. If the metaphosphate addition exceeds two formula weights for each formula weight of calcium the film will not form, any film previously formed by observance of the 2:1 ratio will be dissolved, and corrosion will be accelerated. 12. The "formula weight" of a compound is the sum of the atomic weights of the atoms included in the formula. 13. The protective film appears to have a thickness of the order of a wave length of light. It is self-limiting in thickness, and cannot plug the pipes. It manifests itself by iridescence. It will form on metal or metal oxides but not on glass. It will protect rusty pipes as well as clean ones. 14. The maximum metaphosphate addition permitted by Rice and Hatch—two formula weights per formula weight of dissolved calcium—will protect the metal if the water is quiescent. If the water is moving, as in distribution systems, a lesser amount is required. The film is not permanent and the metaphosphate treatment must be continued to maintain it. Once formed, the protective film may be maintained in pipe systems by very small additions. Dosages as low as 1 to 2 parts per million are common. 15. The Rice and Hatch process has been and is widely used. It has been adopted by approximately 600 municipal water plants and 1,400 industrial water plants in the United States. It has been widely used in areas where the water serves textile mills. 16. Defendant owns and operates water plants at Fort Mill, Grace and Kershaw, South Carolina, in the western district of South Carolina. It draws raw water from the Catawba river for the plants at Fort Mill and Grace, and from Lynches Creek for the plant at Kershaw. The water is corrosive. The water is negative Langelier and contains calcium. Defendant adds metaphosphate in amounts ranging from 1 to 5 parts per million. 17. Defendant first practiced the metaphosphate treatment at Fort Mill, under the guidance of plaintiff's affiliate, Calgon, Inc., with metaphosphate purchased from Calgon, Inc. at a royalty-included price. It had been practicing the treatment at Fort Mill for some five or six years before it put the water plant at Grace into operation in 1948. Metaphosphate treatment was practiced at Grace from the beginning of operations there. The Kershaw plant went into operation in 1951. At first there was no metaphosphate treatment at Kershaw but after a few months' operation the treatment was adopted there. It has been continuously used in each of the three plants since its inauguration in them. Defendant now uses metaphosphate from another source and pays no royalty. Its current supplier is Rumford Chemical Works of Rumford, Rhode Island. Rumford is paying the cost of defending this action pursuant to an agreement to hold defendant harmless. 18. Defendant's practices, stated in the foregoing findings, effectively control corrosion in its water systems. The practices correspond to the requirements of the claims of the Rice & Hatch patent. *32 19. Defendant concedes that Rice and Hatch "were the first ones to publish the information" that when the requisite conditions specified in the Rice & Hatch patent are met, the described protective film is formed and that it "has some effects of retarding corrosion," but defendant contends that the requisite conditions were old in conjunction in the art. No specific instance of prior use was alleged. There is no evidence that the process had been used, wittingly or unwittingly, by anyone prior to Rice and Hatch. 20. The Rice and Hatch process is not disclosed in any of the patents relied on by defendant, namely: Hall & Jackson 1,903,041; Hall Re. 19,719; Judson 1,924,861; Burk 2,063,788; Rosenstein 2,038,316; Fink & Richardson 2,358,222; Coslett 870,937; Coslett 1,007,069; Allen 1,206,075; and Richards 1,069,903. 21. The differences between the Rice and Hatch process and the subject matter disclosed in any and all of the patents listed in Finding 20 are such that the Rice and Hatch process as a whole was not obvious in the light of them to a person having ordinary skill in the art at the time the Rice and Hatch invention was made. 22. If the water in a system contains calcium and is negative Langelier, the maximum metaphosphate dosage of two formula weights per formula weight of calcium will afford the desired protection. No experimentation is necessary in order to ascertain the invention or to make it work. Lesser dosages may be experimentally determined as a matter of economics, and men skilled in the art have no difficulty in ascertaining the economical dosage for particular conditions. It would have been impractical for the patentees to specify the most economical dosage for all possible combinations of circumstances. 23. Plaintiff and its affiliated companies adopted and have consistently followed a policy for the exploitation of the Rice & Hatch invention, which is as follows: (a) Anyone desiring to use the patented process may do so upon the payment of a royalty at the uniform rate of two cents per pound (a lower rate was recently extended to the City of Philadelphia because of the very large amounts of metaphosphate involved). (b) The user may purchase the metaphosphate wherever he chooses. (c) If the user of the process elects to purchase metaphosphate from plaintiff or its affiliate, Calgon, Inc., the royalty is included in the price and the fact is stated on the package. If he elects to purchase from another source for use in the patented process, he is given a license agreement and pays the royalties thereunder. (d) If the user of the process desires to purchase metaphosphate from the plaintiff or its affiliates for unpatented uses he pays the "ex royalty" price, which is two cents per pound less than the "royalty-included" price. 24. Neither plaintiff nor its affiliates sought, or seeks, to preclude defendant from purchasing metaphosphate from Rumford Chemical Works, or elsewhere, and defendant has not been impeded in electing and maintaining Rumford as its supplier. Plaintiff offered defendant a license at the same rate that it includes in its sales of metaphosphate for use under the patent, but defendant ignored the offer. The offer was repeated at the trial, and remains open. Conclusions of Law 1. This court has jurisdiction in the premises. 2. Plaintiff is and always has been the owner of the Rice & Hatch patent. 3. The Rice & Hatch patent discloses new and useful invention, meets all statutory requirements, and is valid. 4. Defendant has infringed the Rice & Hatch patent. 5. The manner of exploitation of the invention by plaintiff and its affiliated companies is proper and does not render the patent unenforceable. 6. Plaintiff is entitled to an injunction against further infringement, an award of damages for past infringements, and costs. Counsel may submit appropriate order accordingly.

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT December 3, 2013 Elisabeth A. Shumaker Clerk of Court KEMAN FITZPATRICK, Petitioner - Appellant, v. No. 13-6166 (D.C. No. 5:13-CV-00284-M) WILLIAM MONDAY; SCOTT PRUITT, (W.D. Okla.) Respondents – Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY* Before KELLY, HOLMES, and MATHESON, Circuit Judges. Keman Fitzpatrick, an Oklahoma state prisoner proceeding pro se,1 seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a habeas application). Mr. Fitzpatrick also requests leave to proceed *This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Fitzpatrick is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we deny both requests and dismiss this matter. I. BACKGROUND A. State Court Proceedings On October 18, 2007, Mr. Fitzpatrick was convicted by a jury of (1) possession of a controlled dangerous substance with intent to distribute; (2) possession of a controlled dangerous substance; and (3) possession of drug paraphernalia. On November 30, 2007, he was sentenced to eighteen years, five years, and one year in prison for the respective crimes, to be served concurrently. The judgment and sentence were entered on December 17, 2007. Mr. Fitzpatrick appealed to the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed his conviction on March 25, 2009. On June 3, 2010, Mr. Fitzpatrick filed an application for post-conviction relief in the Oklahoma County District Court (“OCDC”). The State moved to strike the application because the brief supporting it exceeded the page limit set forth in Rule 37 of the Rules of the Seventh and Twenty-Sixth Judicial Administrative Districts. See ROA at 43. On June 9, 2010, the OCDC granted the State’s motion and struck Mr. Fitzpatrick’s application. Id. On December 27, 2010, the OCDC entered an order granting Mr. Fitzpatrick until February 15, 2011, to file a brief in support of his application for post-conviction relief that complied with Rule 37. Id. In response, Mr. Fitzpatrick filed several motions and briefs on February 16, 2011, which the OCDC construed as an attempt to circumvent -2- Rule 37’s page limitations. Id. In its order denying Mr. Fitzpatrick’s motions, the OCDC noted that Mr. Fitzpatrick’s June 3, 2010 application had been stricken from the record and found that “a proceeding for post-conviction relief has not been properly commenced in this case.” See Fitzpatrick v. Monday, No. CIV-13-284-M, 2013 WL 3759941, at *1 (W.D. Okla. July 10, 2013) (hereinafter “Dist. Ct. Order”) (quoting Order Denying Application/Motions for Post-Conviction Relief, May 5, 2011, ECF No. 1-1, at 4). The OCDC construed Mr. Fitzpatrick’s February 16, 2011 motions as a second application for post-conviction relief, which the OCDC denied. The OCDC’s order informed Mr. Fitzpatrick that he had thirty days from May 5, 2011, to appeal the denial of relief to the OCCA. Mr. Fitzpatrick failed to timely file an appeal of the denial of his second application for post-conviction relief. On October 17, 2011, Mr. Fitzpatrick filed a third application for post-conviction relief with the OCDC, which the OCDC denied. The OCCA affirmed the OCDC’s denial on April 6, 2012. B. Federal Habeas Proceedings 1. Magistrate Judge Report and Recommendation On March 22, 2013, Mr. Fitzpatrick filed the § 2254 habeas petition underlying this proceeding in the United States District Court for the Western District of Oklahoma. A magistrate judge reviewed Mr. Fitzpatrick’s petition and recommended that the petition be denied as untimely filed. See Dist. Ct. Order at *1. The magistrate judge noted that under 28 U.S.C. § 2244(d)(1)(A), a state prisoner -3- must file a federal habeas action within one year of the date that his state court conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” See id. at 2; see also Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (explaining that under § 2244(d)(1)(A), “a petitioner’s conviction is not final and the one- year limitation period for filing a federal habeas petition does not begin to run until— following a decision by the state court of last result—after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed” (quotations omitted)). The magistrate judge concluded that Mr. Fitzpatrick’s conviction became final on June 23, 2009, upon expiration of the ninety-day period during which Mr. Fitzpatrick could have filed a petition for certiorari. His deadline for filing a habeas petition was, therefore, June 23, 2010—nearly three years before Mr. Fitzpatrick actually filed for relief. See Dist. Ct. Order at *2; United States v. Hurst, 322 F.3d 1256, 1259-61 (10th Cir. 2003) (one-year period calculated by the anniversary method). The magistrate judge considered whether statutory or equitable tolling applied to permit Mr. Fitzpatrick’s application. 28 U.S.C. § 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” Id. (emphasis added). An application for state review is properly filed when it is in compliance with all applicable rules as determined by state procedural law. See Garcia v. Shanks, 351 F.3d 468, 471 (10th Cir. 2003). -4-  The magistrate judge concluded that Mr. Fitzpatrick had failed to comply with state court filing requirements when, on June 3, 2010, he attempted to file an application for post-conviction relief that exceeded the page limit set forth in Rule 37. The magistrate judge noted that the OCDC had specifically found that Mr. Fitzpatrick’s application had been stricken as improperly filed. Furthermore, Mr. Fitzpatrick’s second application for post-conviction relief (as construed by the OCDC), submitted February 16, 2011, was filed after the expiration of the one-year limitations period and could not be applied to toll the statute of limitations. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). The magistrate judge also concluded that equitable tolling did not apply to permit Mr. Fitzpatrick’s habeas petition. The Supreme Court has held that the one-year limitations period for filing a federal habeas action is subject to equitable tolling “in appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). Generally speaking, a petitioner seeking equitable tolling must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quotations omitted). Tenth Circuit precedent on equitable tolling holds that a “sufficiently supported claim of actual innocence creates an exception to procedural barriers for bringing constitutional claims,” so that a petitioner providing evidence of actual innocence is not required to demonstrate due diligence in pursuing his claims. Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010). This exception, however, “is rare and will ‘only be -5- applied in the extraordinary case.’” Id. (quoting Schlup v. Delo, 513 U.S. 298, 321 (1995)). The magistrate judge concluded that Mr. Fitzpatrick’s case is not an “extraordinary case,” because it does not include a “colorable showing of factual innocence.” Herrera v. Collins, 506 U.S. 390, 404 (1993) (quotations omitted). Although Mr. Fitzpatrick asserted his innocence in his habeas petition—“I am Innocent of ALL these charges”—the magistrate judge noted that “his protestation of innocence, alone, is not sufficient to support application of equitable tolling in this case.” Dist. Ct. Order at *4. Because he concluded that Mr. Fitzpatrick is entitled to neither statutory nor equitable tolling, the magistrate judge recommended that his petition be dismissed as untimely. 2. District Court Orders The district court initially adopted the magistrate judge’s recommendation on May 31, 2013, without objection from Mr. Fitzpatrick. Mr. Fitzpatrick filed a motion a few days later to extend the time to file objections. The district court granted his motion and vacated its May 31, 2013 judgment. Mr. Fitzpatrick filed his objections on July 4, 2013. On July 10, 2013, the district court again adopted the magistrate judge’s initial recommendation and denied the petition as untimely. See Dist Ct. Order at *1; see also Fitzpatrick v. Monday, No. CIV-13-284-M, 2013 WL 2404048 (W.D. Okla. May 31, 2013), vacated June 6, 2013. -6-  II. DISCUSSION Mr. Fitzpatrick may not appeal the district court’s denial of his § 2254 petition without a COA. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). To obtain a COA, Mr. Fitzpatrick must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court’s decision to dismiss Mr. Fitzpatrick’s petition as untimely filed rested on procedural grounds, Mr. Fitzpatrick must “demonstrate both that [(1)] ‘jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that [(2)] jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’” Clark, 468 F.3d at 713 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Mr. Fitzpatrick has failed to meet this burden here. Mr. Fitzpatrick’s habeas petition was filed nearly three years after the one-year period of limitations expired, and he has failed to make a case for either statutory or equitable tolling. In his brief on appeal, Mr. Fitzpatrick argues that his June 3, 2010 application for post-conviction relief in the OCDC was properly filed and, along with the time for subsequent filings and proceedings, gave rise to statutory tolling. Aplt. Br. at 6-7. He notes that the OCDC issued an order on December 27, 2010, granting him until February 15, 2011, to file a new brief in support of his application for post-conviction relief. Mr. Fitzpatrick emphasizes that this order did not instruct him to file a new application, and he contends that this omission indicates the OCDC viewed his June 3, 2010 application -7- as properly filed pursuant to Okla. Stat. tit. 20, § 1080. This argument fails, however, because the OCDC specifically struck his June 3, 2010 application and noted that no post-conviction proceeding had been properly commenced. Regarding equitable tolling, Mr. Fitzpatrick merely repeats his bald assertion of innocence from his original habeas petition, stating, “I am an innocence [sic] man who has been wrongfully convicted.” Aplt. Affidavit at 1. He does not explain why the district court was incorrect in concluding that his unsubstantiated profession of innocence did not suffice to justify equitable tolling. In short, Mr. Fitzpatrick has failed to demonstrate that “jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Clark, 468 F.3d at 713 (quotations omitted).2 We agree with the district court that statutory tolling is not appropriate because the OCDC specifically struck Mr. Fitzpatrick’s June 3, 2010 application as improperly filed. Mr. Fitzpatrick has likewise failed to show that equitable tolling is appropriate. 2 Mr. Fitzpatrick also appears to argue that the district court failed to give him fair notice and an opportunity to present his position before acting sua sponte and dismissing his habeas petition as untimely. Aplt. Br. at 7. See Day v. McDonough, 547 U.S. 198, 209-10 (2006) (holding that a district court may consider the timeliness of a state prisoner’s habeas petition sua sponte, but noting that it “must accord the parties fair notice and an opportunity to present their positions”). We disagree. The district court vacated its May 31, 2013 judgment and gave Mr. Fitzpatrick an additional opportunity to file objections, which he did before the district court issued its final judgment. -8-  For these reasons, we affirm the district court’s decision to deny Mr. Fitzpatrick’s habeas petition as untimely filed. We also deny Mr. Fitzpatrick’s motion to proceed ifp. ENTERED FOR THE COURT Scott M. Matheson, Jr. Circuit Judge -9-